Sukhvir vs State of U.P. and Others

Shashi Kant, J.—1. Heard Sri B.C. Rai, learned counsel for the petitioner, learned Standing Counsel for respondents No. 1 to 4 and Sri Mahendra Pratap, Advocate, for respondent No. 5. With the consent of learned counsel for the parties this writ petition is being heard and decided at the stage of admission itself under the Rules of the Court without calling for any counter or rejoinder affidavit.

This writ petition under Article 226 of the Constitution of India has been filed challenging supplementary award dated 18.04.2015 (Annexure 20 to the writ petition) prepared by Additional District Magistrate Irrigation, Ghaziabad, respondent No. 4 and also to declare entire land acquisition proceedings initiated under Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") in respect of land to the extent of 120.4 bigha comprised in plot Nos. 1061, 1062, 1066, 1067, 1045, 1049, 1050, 1053, 1036/2 and 928/1, situated at revenue village Makanpur, Pargana Loni, Tehsil Dadri, District Ghaziabad, belonging to the petitioner stood lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "Act, 2013").

Brief facts giving rise to aforesaid writ petition are:

"3.1 The State Government issued notification dated 16.08.1988 under Section 4 of Act, 1894 applying urgency provisions and dispensing with provisions of filing objections under Section 5A of Act, 1894 for the purpose of construction of Housing Colony under planned development scheme by Ghaziabad Development Authority (hereinafter referred to as "GDA"). The total area of acquisition was 1295.4927 acres.

3.2 Pursuant to aforesaid notification, State Government issued declaration dated 22.02.1989 under Section 6 of Act, 1894. However, the land of petitioner was included in the said declaration. However, petitioner''s land comprised of plot Nos. 1061, 1062, 1066, 1067, 1045, 1049, 1050, 1053, 1036/2 and 928/1, admeasuring 120.4 bigha land was not included in the said notification. A corrigendum dated 26.06.1989 was issued by the State Government in respect of the land not included in the aforesaid notification under Section 4 of Act, 1894.

3.3 The State Government, pursuant to the aforesaid corrigendum issued notification dated 31.07.1989 stating that after expiry of 15 days from the date of publication of the notice under Section 9(1) of Act, 1894, the Collector, Ghaziabad might be take the possession of land mentioned in the schedule. The Special Land Acquisition Officer (Irrigation) Ghaziabad appears to have caused public notice, taking note of the aforesaid notification. By issuing a notice dated 03.08.1989 under Section 9(1) and (2) of Act, 1894 petitioner was invited, to present his claim for compensation before Collector, Ghaziabad on 18.08.1989. By letter of authority in favour of GDA, the State Government allegedly handed over possession of the land acquired, including the land of the petitioner.

3.4 A writ petition No. 23938 of 1990, challenging the notification dated 16.08.1988, declaration dated 22.02.1989 and corrigendum dated 26.6.1989 was filed by the petitioner in which vide order dated 12.09.1990, this Court stayed dispossession of the petitioner from the disputed plots.

3.5 The Special Land Acquisition Officer passed award dated 30.07.1991 under Section 11 of Act, 1894 in respect of the land notified on 16.08.1988. The award was passed determining compensation of land @ Rs. 90 per Sq.yards. From 1991 to 2005 the petitioner''s land remained in his possession and GDA never came in actual physical possession of the land on the basis of the alleged letter of authority dated 18.08.1989.

3.6 Ultimately, vide order dated 19.01.2005, petitioner''s aforesaid writ petition was ultimately dismissed by this Court upholding notification under Section 4 of Act, 1894 and declaration under Section 6 dated 22.02.1989.

3.7 Challenging the order dated 19.01.2005, petitioner preferred S.L.P. (C) No. 11311-11312 of 2005 which was also dismissed by the Apex Court granting liberty to the petitioner to approach the State Government under Section 48 of Act, 1894. Pursuant thereto, the petitioner made a representation dated 09.09.2005, which remained pending for more than a year. On 19.10.2006 the GDA started demolishing constructions of petitioner and destroyed the crop standing on the land.

3.8 Vide letter dated 08.05.2006, the State Government called report from GDA on the points (i) whether construction existed on the spot; and (ii) owner is in possession over the acquired land or not. The Revenue Authorities submitted report dated 17.08.2008 (Annexure 16 to the writ petition) stating that Likhi Ram and petitioner are in actual physical possession of their respective land. On 06.05.2008 Special Secretary passed order directing the GDA to maintain status quo with regard to petitioner''s land and submit detailed report to the State Government. In the circumstances, an application was given by the petitioner to the Secretary (Home) Government of U.P. On which an order was passed directing the SSP, Ghaziabad to take necessary action.

3.9 The petitioner then filed writ petition No. 62852 of 2006, which was disposed of vide order dated 21.11.2006 directing the State Government to dispose of representation of the petitioner, under Section 48 of Act, 1894 within three months. Thereafter, a contempt petition No. 1629 of 2007 was filed in which notice was issued.

3.10 The State Government it is claimed, on its own, and without any information or notice to the petitioner, passed an order dated 26.11.2007 whereby representation of the petitioner has been rejected. The said order of rejection was never communicated to the petitioner. Accordingly, on 30.04.2008 petitioner made an application to the Special Secretary against the threat of dispossession.

3.11 The GDA, merely on the basis of paper possession, transferred the petitioner''s land to a real estate entity, i.e. Akanksha Society, for commercial exploitation in spite of the fact that acquisition is not completed under provisions of Section 11-A, Section 17(3A) of the Act, 1894 and no payment of a single penny has been made to the petitioner towards the claim till date, the GDA did not bother to comply the same. The office bearers of Akanksha Society on 30.04.2010/10.06.2010 tried to trespass upon the petitioner''s land and entered upon the land with JCB machines. However, on police intervention, they were forced to leave. The Deputy Secretary vide communication dated 05.05.2010, taking note of the order dated 06.05.2008 then directed the GDA to comply the said order and submit report in this regard.

3.12 The petitioner filed writ petition No. 35217 of 2010 praying for a relief not to dispossess the petitioner from his land pending his representation by use of force. Counter affidavit was filed by GDA in the aforesaid writ petition by which petitioner came to know that his earlier representation dated 09.09.2005 has been rejected by State Government way back on 26.11.2007. The said order of rejection of representation has been challenged by petitioner by an amendment in Writ Petition (C) No. 35217 of 2010.

3.13 The Additional District Magistrate Irrigation, Ghaziabad made a supplementary award dated 18.04.2015 under Act 1894 for acquisition in respect of petitioner''s land in order to save applicability of Act, 2013. In this factual background, this writ petition has been filed."

In pursuance of order dated 07.01.2016, written submissions were submitted by learned counsel for the petitioner as well as by Sri Mahendra Pratap, Advocate, appearing for respondent No. 5 GDA which are taken on record.

Learned counsel for the petitioner urged that:

"5.1 Initial award in respect of acquisition of land has been passed on 30.07.1991, which is prior to more than five years of commencement of Act, 2013, actual physical possession of land has not been taken in accordance with law, taking over possession of disputed land is only a paper work, in which signature of the person, who has given possession, is made by any strange person, name and address along with parantage of that person or any witness with above particulars have not been mentioned therein and there is no signature of any witness on it.

5.2 Possession of petitioner was admitted by the respondents on the disputed land as such it is proved that alleged taking over possession over the disputed land by the respondent is mere paper transaction and no actual physical possession of the disputed land was ever taken by respondent as the respondents are not in actual physical possession of the land.

5.3 Neither any payment of compensation was made to the petitioner till the date nor the same has been deposited in the Court as mandated by Section 31 of Act, 1894, who was competent to decide the reference under Section 18 of Act, 1894, which read thus:

"31. Payment of compensation or deposit of same in Court.--(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted.

...."

5.4 It is stated that as is evident from perusal of Act, 2013, there is no provision for passing of supplementary award in the year 2015 under Act 2013, therefore passing supplementary award dated 18.04.2015 is without authority, legal sanction and could not brought any change in the facts and circumstances of the case.

5.5 The acquisition proceedings of the land in dispute lapse in the light of the provisions of sub-section (2) of Section 24 of Act, 2013 because the supplementary awarded dated 18.04.2015 is null and void having no any adverse effect on the claim of the petitioner. In support of his case, the petitioner has placed reliance on the judgments rendered in Pune Municipal Corporation v. Harakchand Misirimal Solanki, , 2014 (3) SCC 183; Bharat Kumar v. State of Haryana , 2014 (6) SCC 586, Bimla Devi and others v. State of Haryana , 2014 (6) SCC 583; Naresh Kumar v. State of Haryana , 2014 (6) SCC 589; Karnail Kaur v. State of Punjab , 2015 (3) SCC 206; Rajiv Chowdhrie v. Union of India , 2015 (3) SCC 541 and Sita Ram v. State of Haryana , 2015 (3) SCC 597; Radiance Fincap (P) Ltd. v. Union of India , 2015 (8) SCC 544."

Per contra, Sri Mahendra Pratap, learned counsel for the respondent No. 5 urged that:

"6.1 Representation of the petitioner''s father was rejected on 04.08.1999 against which Likhi Ram @ Mula filed writ petition No. 12403 of 2000, which was got dismissed as not pressed on 15.01.2000.

6.2 Likhi Ram filed another writ petition No. 3091 of 2000 (M/B) at Lucknow Bench for the same controversy, which was also dismissed as withdrawn on 17.04.2001.

6.3 Another writ petition No. 26473 of 2001 was filed and got dismissed as withdrawn on 31.10.2002. The last writ petition No. 25880 of 2003 was also filed by Likhi Ram and got dismissed as withdrawn on 15.12.2004.

6.4 In all above writ petitions No. 12403 of 2000, 26473 of 2001 and 25880 of 2003, the stand of the authority is that possession of land in question has been delivered to the authority on 18.08.1989 and the petition filed by the petitioner was dismissed on 19.01.2005 whereagainst SLP filed by petitioner has also been dismissed on 02.09.2005 and therefore, petitioner is not entitled for any relief."

Learned Standing Counsel has controverted the above arguments raised on behalf of petitioner by submitting that though initial award in respect of land in question was passed on 30.7.1991 before five years of enforcement of Act, 2013 but it has been cured by supplementary award dated 18.04.2015 passed in the matter. The assertion of the petitioner that they are still in actual possession is wrong and actual possession of disputed land has been taken by the respondents according to the possession memo. Name of the respondents is also recorded in the revenue papers and compensation amount has been deposited which is sufficient compliance of payment of compensation to the petitioner as such the petition has no force and liable to be dismissed with costs.

In rebuttal to what has been contended by learned counsel for the respondents, learned counsel for the petitioner reiterated his earlier arguments. He further submits that above arguments raised on behalf of the petitioner also finds support by report of Lekhpal submitted by Ghaziabad Development Authority (Annexure 16 to the writ petition) that neither payment of compensation has been made to the petitioner nor it has been deposited in the Court as such petitioner is also entitled to get benefit of Section 24(2) of Act, 2013 and the supplementary award dated 18.04.2015 (Annexure 20 to the writ petition) passed by Additional District Magistrate is without any authority. In view of the above, the writ petition is liable to be allowed.

Upon hearing the counsel for the parties it appears that admittedly the land of the petitioner-appellant was not included in the initial notification issued under Section 4 of Act, 1894 rather it was included in the notification issued under Section 6 read with Section 17 of Act, 1894. A corrigendum of Section 4 of Act, 1894 was also issued. Further with respect to the land in question, no award under Section 11 of Act, 1894 has been passed. Ultimately a supplementary award has been passed on 18.04.2015 i.e. after promulgation of Act, 2013 and after passing of period more than one year and three and a half months from its implementation on 01.01.2014.

Before proceeding further it is desirable to have a bird eye view on the case law referred by the parties and applicable to the case in hand alongwith relevant provisions, which are as under:

In Pune Municipal Corporation (supra), the Apex Court has dealt with the various aspect of the matter before it and application of Section 24 of Act, 2013 along with provisions of Section 31 of Act, 1894 and in paras 10 to 21 of the judgment, the Court said as follows:

"10. Insofar as Sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in Clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.

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 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 land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.

To find out the meaning of the expression, "compensation has not been paid", it is necessary to have a look at Section 31 of the 1894 Act. The said Section, to the extent it is relevant, reads as follows:

Payment of compensation or deposit of same in Court. - (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next Sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted:"

There is amendment in Maharashtra--Nagpur (City) in Section 31 whereby in Sub-section (1), after the words "compensation" and in Sub-section (2), after the words, "the amount of compensation", the words "and costs if any" have been inserted.

Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in Sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the Court to which reference under Section 18 may be made.

Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the Court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the Court to which reference can be made under Section 18.

The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the Court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the Court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.

While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this Sub-section (Subsection (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been deposited in the Court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in Court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.

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 Ahmad v. King Emperor : , A.I.R. 1936 PC 253 (2)]) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

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 v. State of Goa and Anr. , (2011) 11 SCC 506, relying upon the earlier decision in Prem Nath Kapur v. National Fertilizers Corpn. of India Ltd., , (1996) 2 SCC 71], 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.

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."

In Bharat Kumar (supra) the Apex Court in para 6 has said as follows:

"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 land owners or has not been deposited before the appropriate forum, the proceedings initiated under the Act, 1894 is deemed to have been lapsed."

In Bimla Devi (supra) the Apex Court following the judgment rendered in Pune Municipal Corporation & Anr. (supra) in paras 4 & 5 said as follows:

"4. In view of the above legal position and the fact that the award was passed on 18.11.1995 and the compensation has not been paid nor deposited in the court nor received by the appellants till 31.1.2014 and the physical possession is also with the appellants as on date, the subject acquisition has to be held to have been lapsed. We hold accordingly.

the civil appeals are allowed as above with no order as to costs."

In Naresh Kumar (supra) the Apex Court has also allowed the appeal of the appellant in terms of the judgment rendered in Bharat Kumar (supra).

In Karnail Kaur (supra) the Hon''ble Apex Court in para 17 has said as follows:

"We have carefully gone through the legal submissions made by the learned senior Counsel on behalf of the Appellants with respect to the application filed Under Section 24(2) of the Act of 2013 and the objections raised by the Respondents to the same. In our considered view, Respondent No. 2 GMADA has admitted that the possession of the land in question (i.e. about 102 acres) is with the Appellants and the Appellants have not received the compensation for the said land being acquired by GMADA. Therefore, the case of Nand Kishore Gupta , (2010) 10 SCC 282 referred to supra is not applicable to the present case on hand. In fact, the present case is squarely covered by the law laid down in the matter of Pune Municipal Corporation and Anr. v. Harakchand Misirimal Solanki and Ors., , (2014) 3 SCC 183, Union of India and Ors. v. Shiv Raj and Ors. , (2014) 6 SCC 564, Bimla Devi and Ors. v. State of Haryana and Ors. : , (2014) 6 SCC 583, Bharat Kumar v. State of Haryana and Anr. : , (2014) 6 SCC 586 and Sree Balaji Nagar Residential Association , (2015) 3 SCC 353."

In Rajiv Chowdhrie (supra) the Hon''ble Apex Court in paras 17 and 18 has said as follows:

"17. Upon examining the aforesaid decisions with reference to the facts and circumstances of the case on hand, we are of the view that physical possession of the land belonging to the Appellant has neither been taken by the Respondents nor compensation paid to him in respect of the land acquired even though more than five years have lapsed since the award was passed on 06.08.2007, when the Act of 2013 came into force. Therefore, the conditions mentioned in Section 24(2) of the Act of 2013 are satisfied in this case for allowing the plea of the Appellant that the land acquisition proceedings are deemed to have lapsed in terms of Section 24(2) of the Act of 2013. The said legal principle laid down by this Court in the case of Pune Municipal Corporation v. Harakchand Misirimal Solanki, , (2014) 3 SCC 183 and other cases referred to supra with regard to the interpretation of Section 24(2) of the Act of 2013, is applicable with all fours to the fact situation in respect of the land covered in this appeal for granting the relief as prayed by the Appellant in the application.

In view of the aforesaid findings and reasons recorded by us, the acquisition proceedings in respect of the Appellant''s land have lapsed. The prayer made in this Interlocutory Application is allowed in the above terms and consequently, the civil appeal is also allowed by quashing the acquisition proceeding notification in so far as the land of the Appellant is concerned. There shall be no order as to costs."

In Sita Ram (supra) the Apex Court following the judgment rendered in Pune Municipal Corporation & Anr. (supra) in paras 21 and 22 said as follows:

"21. In the light of the above findings recorded by us on the rival factual and legal contentions, and considering the averments made in the application and documents produced on record and after examining Section 24(2) of the Act of 2013 along with the decision of Pune Municipal Corporation and other cases referred to supra, we are of the considered view that the plea of the Appellant should be accepted and relief as prayed for has to be granted for the undisputed reason that the Award was passed on 08.10.2003 and five years have elapsed long back and the compensation undisputedly was not paid within 5 years to the Appellant. The conditions mentioned in Section 24(2) of the Act of 2013 are satisfied by the Appellant for allowing the plea as stated by him that the land acquisition proceedings in respect of his acquired land and building must be deemed to have lapsed in terms of Section 24(2) of the Act of 2013. The above mentioned three Judge Bench decision and other cases of this Court referred to supra with regard to the interpretation made Under Section 24(2) of the Act of 2013, would be aptly applicable with all fours to the fact situation in respect of the land covered in this appeal.

In view of the aforesaid findings and reasons recorded by us, the prayer made in the application of the Appellant is allowed holding that the acquisition proceedings in respect of the Appellant''s land/building have elapsed. I.A. No. 5 is allowed. The appeal is disposed of in the above said terms by quashing the acquisition proceedings of the land/building of the Appellant."

Counsel for the respondent has also relied on a decision rendered by Division Bench of this Court dated 25.5.2015 in Writ -C No. 30997 of 2015. However, the said judgment is not applicable in the case in hand as in that case the initial award under Section 11 of Act, 1894 has been passed on 30.12.2013 i.e. before enforcement of Act, 2013 and supplementary award was passed on 27.5.2014, which was within a year from the date of enforcement of Act, 2013 i.e. 01.01.2014. In this regard the Court has recorded its finding as follows:

"....We have no hesitation to record that any amendment in the award under the order dated 27.5.2014 would only relate back to the date of the main award. However, we may not express any final opinion on that subject inasmuch as on such issue would depend upon the amount of compensation which the tenure holder can claim...."

It is also worth mentioning here that there is no provision for passing of any supplementary award under the Act, 1894 as well as Act, 2013.

At this stage relevant extract of the supplementary award dated 18.04.2015 is reproduced below:

A perusal of supplementary award dated 18.04.2015 shows that there is following recitals in it:

"(i) After completion of all necessary formalities and obtaining approval of rates from Board of Revenue on 29.07.1991, award was declared on 30.07.1991 but due to pendency of writ petition No. 21917 of 1990 (Sukhbir v. State of U.P.) before this Court, award could not be declared in respect of land numbers referred above i.e. land in question. It may also be clarified here that aforesaid writ petition does not belong to Sukhbir rather it has been filed by one D.R. Tyagi, and was decided on 20.11.2009.

(ii) This award is being declared in continuity of original award dated 30.07.1991 and be part of that.

(iii) According to amended provisions of Section 11A of Act, 1894, if within two years from the date of the publication of the declaration, any court has stayed proceedings of acquisition then the period during which the order of stay remained operative, shall be excluded for computing the period of two years. As in this matter, writ petition was pending before Hon''ble High Court, therefore, petitioner cannot get any benefit for the above period.

(iv) It is directed in the supplementary award that cost of land acquisition Rs. 2,53,056/- and 40 times of land rent be deposited in the appropriate head after its recovery from the acquiring body.

(v) If any property is available on the above land numbers then compensation of that will be paid by the land acquiring body at his own level."

It is clear from above referred recitals of supplementary award that no award in respect of land in question has been passed earlier to the supplementary award and if there was no award in respect of the above land then there is no occasion for passing of supplementary award in respect of the award dated 30.7.1991, which is nonest in respect of land in question i.e. land numbers mentioned in it.

It is further clear that till passing of supplementary award i.e. 18.4.2015, no compensation was paid to the petitioner or his predecessor because as per recitals of supplementary award it is evident that award could not be declared due to pendency of case before this Court. Even, for the sake of argument, claim of respondent regarding taking over actual possession of the land in question assumed to be true then the same will be in contravention of the provisions of Section 31, as has been quoted earlier. Under Section 17 of Act, 1894 it is provided that in the urgency matter, prior to taking over possession of the land, payment of 80 percent compensation will be made to the land holders. For ready reference, provisions of Section 17(1) as well as 17(3A) of Act, 1894 read thus:

"17. Special powers in cases of urgency.--(1) In cases of urgency, whenever the *[appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), **[take possession of any waste or arable land needed for a public purpose. Such land shall thereupon ***[vest absolutely in the ****[Government]], free from all encumbrances.

....

*****[(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),--

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section."]

___________________________________________

*Subs. by the A.O. 1950, for "Provincial Government"

** Subs. by Act 68 of 1984, sec. 13, for certain words (w.e.f. 24-9-1984)

***Subs. by A.O. 1937, for "vest absolutely in the Government"

****Subs. by A.O. 1950, for "Crown"

*****Ins. by Act 68 of 1984, sec. 13 (w.e.f. 24-9-1984)"

Article 300A of the Constitution of India also provides that no person shall be deprived of his property without any authority of law. Article 300A of the Constitution reads as follows:

"Article 300A - Persons not to be deprived of property save by authority of law : No person shall be deprived of his property save by authority of law."

The position which emerges is that no award has been passed in respect of land in question before 18.04.2015 under the Act, 1894. That Act was repealed by Act, 2013 which came into force on 01.01.2014 by which Act, 1894 was repealed. It also emerges from record that no compensation was paid to the petitioner or deposited before 18.4.2015.

The provisions of Section 24 of Act, 2013, which are very much relevant to decide the controversy, involved in this case read thus:

"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 sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

(Emphasis Supplied by us)

There is no whisper by the respondents that above payment was made to the petitioner or his predecessor while petitioner is clearly denying that he has not received any compensation in respect of his land from the respondents as such alleged taking of possession over land in question by the respondent is not in accordance with law and violative of provisions of Section 31, 17(3) of Act, 1894 and Article 300 of Constitution and that cannot be treated legal possession over the disputed land.

As no award in respect of land in dispute has ever been passed before five years of the enforcement of Act, 2013 or ever, therefore, this case does not come under the ambit of Section 24(2) of Act, 2013.

Admittedly, the proceedings of acquisition of land in question have been taken place during applicability of Act, 1894 as such this case is squarely covered under the provisions of Section 24(1)(a) of Act, 2013.

This matter is very old one relating to the acquisition proceedings initiated in the year 1989 therefore, it deserves to be paid special attention and prompt action.

For all the reasons and discussions made above, the writ petition is disposed of with the directions that proceedings of land acquisition will remain continue in accordance with law i.e. according to provisions of Act, 2013. The respondent authorities are directed to take necessary steps in compliance of the concerned provisions without any further delay.

No order as to costs.