Silvester D'' Souza vs The State of Goa

F.M. Reis, J.—Heard Mrs. Agni, learned Counsel appearing for the Appellants, Mr. S.G. Desai, learned Senior Counsel appearing for the Respondent nos. 3 to 10 and Shri E. Afonso, learned Counsel appearing for the Respondent nos. 1 and 2.

The above Writ Petition, inter alia, seeks for a declaration that the impugned Award dated 04.09.2006 is a nullity and that the entire acquisition proceedings which commenced with the issuance of the Notification dated 24.04.2003 stands lapsed. The further relief sought by the Petitioner is also to quash and set aside the Notification dated 24.04.2003 and 22.04.2004 issued under Section 4 of the Land Acquisition Act.

Briefly, the facts of the case as pointed out by the Petitioners are that Petitioner nos. 1 and 2 purchased a dwelling house being parts A2 and no. 7 of the property bearing survey no. 7/2 from Mr. Visrama S.P. Nachinolkar and his wife who was a successor in title of the erstwhile landlord Mr. Sitaram V.P. Nachinolkar. By Notification dated 24.04.2003, issued under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the ''Land Acquisition Act of 1894''), land was intended to be acquired for the purpose of widening of the road from the house of Silvestre D'' Souza, Petitioner no.1 to the house of Victoria Dias who is residing adjacent to the house of the Petitioner nos. 1 and 2 on the East. On 04.08.2003, this Court disposed of the Writ Petition filed by the Petitioner nos. 1 and 2 challenging the said Notification dated 24.4.2003, in view of the statement by the Respondent no. 1 that the urgency clause in the Notification would be dropped and that an opportunity would be given to the Petitioners to raise their objections. Thereafter on 18.08.2003, a corrigendum came to be issued by publishing a Notification in the Official Gazette dated 21.08.2003 deleting the urgency clause accordingly. The Petitioners raised objections to the acquisition and a hearing was given to the Petitioners on such objections. A report was made by the Land Acquisition Officer under Section 5 of the said Land Acquisition Act of 1894 on 11.02.2004. The Land Acquisition Officer found substance in the objections raised by the Petitioner nos. 1 and 2 but, however, despite of the said report, the Respondent no. 1 mechanically issued a Notification under Section 6 of the said Land Acquisition Act of 1894. Thereafter, a letter came to be addressed by the Petitioner no. 2 on 13.04.2004 to the Collector of North Goa opposing the said Notification. Subsequently, the Bhatkar of the property surveyed under no. 7/2, made a representation to the Government, inter alia, stating that there was no road in existence which could be widened. A corrigendum was issued on 25.01.2005 dated 19.01.2005 whereby the proposal to acquire 80 square metres for the construction of the drain from the house of Silvestre D''Souza and Victoria Dias was deleted. As such, the said area came to be corrected from the Notification issued under Section 6 of the said Land Acquisition Act of 1894. The corrigendum was accordingly published in the local news paper ''Navhind Times''. A Writ Petition was filed by the Petitioner nos. 1 and 2 before this Court challenging the corrigendum.

There were local objections by the Village Panchayat in connection with the said acquisition and a resolution to that effect was forwarded by the local Panchayat to the Government, Thereafter, on 04.09.2006, the Respondent no. 2 passed an Award under Section 11 of the said Land Acquisition Act of 1894. Being aggrieved by the said acquisition proceedings as well as the Award passed by the Land Acquisition Officer, the Petitioners have filed the above Writ Petition seeking the aforesaid reliefs. A reply came to be filed by the Land Acquisition Officer disputing the contentions raised in the Petition, inter alia, stating that the contentions that the acquisition was not for public purpose is baseless. He has also pointed out that there was an error in the area mentioned in the said Notification and, consequently, the same was rectified to read as 890 square metres. It is further submitted that the Petition be accordingly rejected.

During the course of the hearing of the above Petition, Mrs. Agni, learned Counsel appearing for the Petitioners, has also raised a contention to the effect that in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Re-settlement Act, 2013, (herein after referred to as ''the said Acquisition Act of 2013''), which has come into force from 01.01.2014, the subject land acquisition proceedings initiated under the said Act of 1894 have lapsed. Mrs. Agni, learned Counsel appearing for the Petitioners, in support of the above Petition, has raised two main contentions. The first contention is that the Notification under Section 4 of the said Land Acquisition Act of 1894 is dated 24.04.2003 and that the corrigendum was issued by the Government dated 19.01.2005 whereby the area was sought to be changed and subsequently a fresh corrigendum was issued on 23.03.2005 whereby the area was again converted to 890 square metres instead of 810 square metres,. It is further her contention that as such the Award dated 04.09.2006 is vitiated in law as it violates the provisions of Section 11-A of the Land Acquisition Act of 1894. It is further her contention that the record which have been produced before this Court clearly suggests that there was no publication of the Notification under Section 6 of the said Land Acquisition Act of 1894 at the site and, as such, the question of claiming the benefit of the date of publication of the corrigendum is not at all available to the Petitioners. It is further her contention that only the corrigendum dated 23.03.2005 was published and not the Notification under Section 6 of the said Land Acquisition Act of 1894 and, consequently, the Award passed by the Land Acquisition Officer is a nullity in law. The learned Counsel further points out that the Apex Court in the Judgment reported in Mohan and Another Vs. State of Maharashtra and Others, , has clearly held that it is not open to the Government to take the benefit of a publication of the corrigendum to meet the requirements of the time period within which the Award is to be passed in terms of the said Land Acquisition Act of 1894. Learned Counsel further pointed out that on this ground alone, the Award passed by the Land Acquisition Officer deserves to be quashed and set aside and the proceedings for acquisition are to be dropped.

The next contention of the learned Counsel is that in terms of Section 24 of the said Acquisition Act of 2013, in cases in which the Award was passed five years prior to the coming into force of the said Land Acquisition Act of 2013 and where the physical possession has not been taken or the compensation has not been offered or deposited by the Government, such proceedings are deemed to have lapsed in terms of the said Land Acquisition Act of 2013. The learned Counsel has pointed out that in the present case, it is an admitted position that physical possession of the acquired land has not been taken by the Government and further that the Award was passed five years prior to the coming into force of the said Land Acquisition Act of 2013. The learned Counsel also submits that the compensation has not been tendered or offered to the Petitioners in terms of Section 31 of the said Land Acquisition Act of 1894 and, as such, as the amounts have not been deposited in the Court where a reference under Section 18 of the said Land Acquisition Act of 1894 could have been filed, the acquisition proceedings in the present case have lapsed. In support of her submission, the learned Counsel has relied upon the Judgment of the Apex Court reported in Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others,

On the other hand, Shri E.A. Afonso, learned Government Advocate appearing for the Respondent nos. 1 and 2, has pointed out that the possession has not been taken in view of the fact that the proceedings for acquisition are challenged before this Court and, consequently, the provisions of Section 24 of the said Acquisition Act of 2013 would not be applicable to the facts of the present case. Learned Government Advocate pointed out that as far as the payment of compensation is concerned, in view of the dispute with regard to the apportionment of the compensation, the amount has been deposited before the District Court where proceedings for reference under Section 18 of the said Land Acquisition Act 1894 are to be filed for adjudicating the reference under Section 30 of the said Land Acquisition Act of 1894. Learned Government Advocate as such points out that as the amount has been deposited in the competent Court, it is not open to the Petitioners to contend that the proceedings have lapsed in terms of the said Acquisition Act of 2013. The learned Government Advocate further points out that considering the date of the publication of the corrigendum, the contention of Mrs. Agni, learned Counsel appearing for the Petitioners that the Award stands vitiated as it was not passed within the time provided in Section 11-A of the said Land Acquisition Act of 1894, cannot be accepted. The learned Government Advocate has pointed out that as such both the contentions raised by the learned Counsel appearing for the Petitioners have no substance and, consequently, the above Writ Petition be rejected.

Shri S.G. Desai, learned Senior Counsel appearing for the Respondent nos. 3 to 10,, has pointed out that the provisions of Section 24 of the said Acquisition Act of 2013 shall not be applicable to the facts of the present case as, according to him, the compensation as per the Award was already deposited before the Reference Court. The learned Senior Counsel further pointed out that in order to take the benefit of the said provisions, both the situations have to be complied with i.e. that the possession should not be taken and the compensation should not have been paid. In the present case, as the compensation has been deposited, it is not open for the learned Counsel appearing for the Petitioners to contend that the proceedings have lapsed merely because the possession has not been taken though the Award was passed five years prior to the coming into the force of the said Acquisition Act of 2013. Learned Senior Counsel further points out that as the proceedings have been filed before this Court, there was an impression that stay order was in operation against the State in respect of the acquisition proceedings. The learned Senior Counsel pointed out that considering that there was a corrigendum that was issued modifying the area intended to be acquired, the contention of Mrs. Agni, learned Counsel appearing for the Petitioners, that the Award itself is vitiated in terms of Section 11-A of the said Land Acquisition Act of 1894 is totally misplaced and deserves to be rejected. Learned Counsel as such submits that the above Petition be rejected.

In support of his said contention, the learned Senior Counsel has relied upon the Judgments of the Hon''ble Apex Court reported in R. Kolandaivelu and Others Vs. The Govt. of Tamil Nadu and Another, and the Judgment of the Division Bench of this Court passed in Writ Petition no. 168 of 2013 dated 12.12.2013.

We have carefully considered the submissions of the learned Counsel. We have also gone through the records. On the basis of the said contentions, there are two main contentions to be examined in the present Writ Petition. One is whether in terms of Section 24(2) of the said Acquisition Act of 2013, the proceedings for acquisition are deemed to have lapsed. The next contention to be examined is whether in terms of Section 11-A of the said Land Acquisition Act of 1894, the Award passed under Section 11 of the said Act is within the time prescribed therein.

With regard to the first contention referred to herein above, the undisputed facts of the case are that the Award in the instant case was made in the year 2006. The Act of 2013 came into force on 01.01.2014 which shows that the Award in the present case was passed more than five years prior to the commencement of the said Acquisition Act of 2013. It is also not in dispute that in the present case, the possession of the land which was subject matter of the acquisition has not been physically taken by the appropriate Government. In the background of the said facts, we shall now examine whether the proceedings for acquisition are deemed to have been lapsed in terms of Section 24(2)of the said Acquisition Act of 2013. Section 24(2) of the said Acquisition Act of 2013, reads thus :

" (1)...

(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 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."

The said provisions have been examined by the Apex Court in a Judgment reported in Pune Municipal Corporation & anr. vs. Harakchand Misirimal Solanki & Ors. (supra). The challenge in the said proceedings were by some persons interested in acquisition proceedings who filed nine Writ Petitions, out of which two Writ Petitions were filed before making of the Award and seven had been filed after the Award was made. The proceedings for acquisition were challenged on different grounds and this Court allowed the Writ Petitions and quashed the land acquisition proceedings and issued certain directions including restoration of possession as in the said case, the possession had already been taken from such interested persons. The Apex Court, in the Appeal filed by the authorities for whose benefit the land was acquired and who were handed over possession of the land vested in the State, examined the effect of the provisions of Section 24(2) of the said Acquisition Act of 2013 and held that as the compensation had not been paid or deposited in terms of the said Land Acquisition Act of 1894, the acquisition proceedings had lapsed. In another Judgment reported in Bharat Kumar Vs. State of Haryana and Another, the Apex Court has also examined the said provisions of Section 24(2) of the said Acquisition Act of 2013. In the Judgment of the Apex Court reported in Union of India (UOI) and Others Vs. Shiv Raj and Others, all the said Judgments have been taken note of and it has been observed at paras 23, 24, 25 and 26 thus :

23 The Court held as under : (Harakchand case, SCC pp. 187 & 189-90, paras 11, 19 & 21)

"11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under the 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied viz. (i) physical possession of the land has not been taken, or (ii) the compensation has not been paid, such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate Government still chooses to acquire the land which was the subject-matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of landholdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under the 2013 Act.

The judgment of Bharat Kumar v. State of Haryana was a reverse case wherein the landowner had lost before the High Court. The Court held:

"Sub-section (2) of Section 24 commences with a non obstante clause. It is a beneficial provision. In view of this provision, if the physical possession of the land has not been taken by the acquiring authority though the award is passed and if the compensation has not been paid to the landowners or has not been deposited before the appropriate forum, the proceedings initiated under the 1894 Act is deemed to have been lapsed."

(See also Bimla Devi v. State of Haryana )

In order to clarify the statutory provisions of the 2013 Act with respect to such lapsing, the Government of India, Ministry of Urban Development, Delhi Division, came up with a Circular dated 14-3-2014 wherein on the basis of the legal opinion of the Solicitor General of India, it has been clarified as under:

"3. Interpretation of five years'' period

With regard to this issue viz. interpretation of five years'' period, two situations have been envisaged in cases where the acquisition has been initiated under the Land Acquisition Act, 1894 viz. (1) parties whose lands have been acquired have refused to accept the compensation and (2) parties whose lands have been acquired having just parted with physical possession of the land. However, in both the above situations, as on 1-1-2014, the period of 5 years would not have ended and in such cases, the advisory seeks to clarify that the new law shall apply only if the situation of pendency continues unchanged for a period that equals to or exceeds five years. In my view, it should be further clarified that in none of the cases the period of five years would have elapsed pursuant to an award made under Section 11 from the date of commencement of the Act and that the benefit of Section 24(2) will be available to those cases which are pending and where during pendency, the situation has remained unchanged with physical possession not being handed over or compensation not having been accepted and the period equals to or exceeds five years.

Limitation

As regards this item relating to the period spent during litigation would also be accounted for the purpose of determining whether the period of five years has to be counted or not, it should be clarified that it will apply only to cases where awards were passed under Section 11 of the Land Acquisition Act, 1894, 5 years or more prior to 1-1-2014 as specified in Section 24(2) of the Act, to avoid any ambiguity. Since this legislation has been passed with the objective of benefiting the land-losers, this interpretation is consistent with that objective and also added as a matter of abundant caution that the period spent in litigation challenging an award cannot be excluded for the purpose of determining whether the period of five years has elapsed or not. If the possession has not been taken or compensation has not been paid due to the challenge to the land acquisition proceedings, the pendente lite period will be included to determine the five year period and including such period if the award was made five years or more prior to the commencement of the Act, then the said acquisition proceedings will be deemed to have elapsed and fresh proceedings, if so desired, will have to be initiated in accordance with the new Act."

The Objects and Reasons of the 2013 Act and particularly Clause 18 thereof fortify the view taken by this Court in the judgments referred to hereinabove. Clause 18 thereof reads as under:

"18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken ."

(emphasis added)

Taking note of the said observations and the ratio laid down therein, in the present case it is not in dispute that the Award was passed five years or more prior to the coming into force of the said Acquisition Act of 2013. It is also not disputed that the physical possession of the acquired land has not been taken by the appropriate Government. Even the pendency period during which the challenge to the Award and the period of pendency of the proceedings before this Court will have to be included to determine the said period of five years. In such circumstance, the contention of the learned Counsel appearing for the Respondents to the effect that in view of the pendency of the above Petition, there was no fault on the appropriate Government in not taking possession of the acquired land and, as such, the Petitioners cannot invoke the provisions of Section 24(2) of the said Acquisition Act of 2013, cannot be accepted. As admittedly, the Award was passed five years prior to the coming into force of the said Acquisition Act of 2013 and the physical possession of the acquired land has not been taken by the Government in terms of Section 24(2) of the said Acquisition Act of 2013, the acquisition proceedings are deemed to have lapsed. With regard to the contention of Mrs. Agni, learned Counsel appearing for the Petitioners that the deposit of the amount is not in terms of Section 31 of the said Land Acquisition Act of 1894, as admittedly the amount of compensation awarded by the Land Acquisition Officer was not offered to the Petitioners nor paid, need not be gone into as in view of the fact that the physical possession of the acquired land was not taken though the award was passed five years prior to the commencement of the said Acquisition Act of 2013, the acquisition proceedings in respect of the land of the petitioners is deemed to have lapsed.

With regard to the next contention of Mrs. Agni, learned Counsel appearing for the Petitioners, it is not in dispute that Notification under Section 6 of the said Land Acquisition Act of 1894 is dated 24.04.2004 and the same was published in the Official Gazette dated 29.04.2004 and also in two local news papers the Navhind Times and Tarun Bharat both dated 07.04.2004. The Award in the present case was prepared by the Land Acquisition Officer on 04.09.2006. Section 11-A of the said Land Acquisition Act of 1894, inter alia, provides that an Award under Section 11 of the said Act has to be made by the Collector within a period of two years from the date of the publication of the declaration and if no Award is made within such period, the entire proceedings for acquisition of the land shall lapse. The explanation would not be applicable in the present case as there was no order of stay by the Court to pass the Award.

In the present case, it is the contention of the Respondents that there was a publication at the site on 03.03.2005 and that there was a corrigendum issued by the State Government dated 19.01.2005, which according to the Respondents, should be considered to be the date of the publication of the said declaration. In such circumstances, the two aspects to be examined are whether on the basis of the material on record, there was in fact a publication of the said declaration under Section 6 of the said Land Acquisition Act of 1894 dated 03.03.2005 and whether merely issuing a corrigendum would extend the said period prescribed. With regard to the contention that the said declaration was published on 03.03.2005, with the assistance of the learned Counsel appearing for the respective parties and the Government Advocate, we have perused the records and we have found that in fact it did not reveal that the declaration under Section 6 of the said Land Acquisition Act of 1894 dated 24.04.2004, was in fact published on 03.03.2005 as alleged by the Respondents. On the contrary, what was shown to us was a publication at the site of only the corrigendum. This cannot be construed to be a publication at the site of a declaration under Section 6 of the said Land Acquisition Act of 1894. Learned Government Advocate appearing for the Respondent nos. 1 and 2, was unable to point out from the records any material which could suggest that there was any publication of the said declaration under Section 6 of the said Land Acquisition Act of 1894 at the site on 03.03.2005. In such circumstances, the contention of the learned Counsel appearing for the Respondents that there was a publication on 03.03.2005 which has to be construed to be the date of declaration under Section 6 of the said Land Acquisition Act of 1894 cannot be accepted.

In such circumstances, the only aspect to be examined is whether the period of two years for passing the Award stands extended in view of the said corrigendum which was published in the Official Gazette on 23.02.2005 and the two news papers on 03.03.2005. In this connection, the observations of the Apex Court in the Judgment reported in Mohan and Another Vs. State of Maharashtra and Others, , would be relevant. The Apex Court has examined a similar situation wherein a corrigendum was issued reducing the area which was intended to be acquired by the declaration under Section 6 of the said Land Acquisition Act of 1894 and observed at para 9 and 10, thus :

"9. In our opinion under section 11-A what has to be seen is the date of last publication of the declaration under Section 6, and not any subsequent corrigendum to the said declaration. The only circumstance under which the period between the declaration under section 11-A and -A-6 and the award can be extende4d I mentioned in the explanation to section 11-A which states :

"In computing the period of two years referred to in section 11-A, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court is excluded."

There is no mention in section 11-A that the period after the publication of the declaration under Section 6 and the publication of any corrigendum to the said declaration has also to be excluded. We will be adding words to the statute if we put such interpretation to section 11-A, and it is well settled the Court should not add or delete words in a statute."

Considering the said observations of the Apex Court, the period of two years for completing the Award cannot be extended merely because a corrigendum to the Notification under Section 6 of the said Land Acquisition Act of 1894 was published during the said period. On this ground also, the proceedings for acquisition as initiated for acquisition of the land of the Petitioner stands lapsed as the Award was not passed in terms of Section 11-A of the said Land Acquisition Act of 1894.

In view of the above, we hold that the Award dated 04.09.2006 is null and the entire acquisition proceedings qua the land of the Petitioner in the present case, stands lapsed.

Rule is made absolute in the above terms with no Orders as to costs.