VELAXAN KUMAR Vs. UNION OF INDIA & ORS : Supreme Court - Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

 

Supreme Court of India

CIVIL APPEAL NO.10954 OF 2014 Judgment Date: Dec 11, 2014

                                                         NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10954 OF 2014
               (Arising Out of S.L.P. (C) No. 16578 of  2007) 


   VELAXAN KUMAR                                     .........APPELLANT

                                     Vs.

   UNION OF INDIA & ORS.                           .........RESPONDENTS


                               J U D G M E N T

V.GOPALA GOWDA, J.

Leave granted.

I.A. No.7 of 2014 has been filed by  the  appellant  Velaxan  Kumar  seeking
applicability of the beneficial provisions of Section 24(2) of the Right  to
Fair Compensation and Transparency in Land Acquisition,  Rehabilitation  and
Resettlement Act, 2013 (in short 'the Act of 2013') for issuing a  direction
and pass an order for disposal of this appeal in  terms  of  the  same.  The
appellant-land owner has come to this Court questioning the  correctness  of
the common judgment and order dated 09.07.2007 passed by the High  Court  of
Delhi in  the  writ  petitions  filed  by  the  land  owners  including  the
appellant herein, wherein, the High Court has dismissed the same.

Brief facts of the case are as under:
The appellant is the owner of the plot measuring 1278 square  yards  out  of
Khasra No.62/19/1 located in the area Village-Prehlad Pur  Bangar,  National
Capital Territory of Delhi (hereafter referred to as  'the  disputed  land')
on the basis of a sale deed executed by Kaptan Singh as being  the  attorney
of   the    land    owners   in   his  favour  on  02.05.1989  for  a  total
consideration amount of Rs.40,000/-.

The Notification No. F-10(29)/96/L&B/LA/11394 under Section 4 and 17 of  the
Land Acquisition Act,  1894  (for  short  'the  L.A.  Act')  was  issued  on
27.10.1999 by the Land Acquisition  Collector  in  the  name  of  Respondent
No.1.

The  appellant  and  other  land  owners  objected  to   the   issuance   of
notification by invoking an emergency clause under Section 17  of  the  L.A.
Act as his land is built up and falls within 50 meters of  village-Abadi  of
Lal Dora, hence his land should be exempted/denotified  from acquisition  as
per policy of the Government dated 02.12.1998. Thereafter, the  notification
was issued under Section  6  read  with  Section  17  of  the  L.A.  Act  on
03.04.2000 in respect of the land sought to be acquired including  the  land
owned by the appellant.

The Land Acquisition Collector, Kanjhawala passed an award on 03.04.2002  in
respect of the disputed land of village-Pansali.

The appellant challenged the said award by the  Land  Acquisition  Collector
by way of filing a writ petition (W.P. (c) No.5528  of  2001)  in  the  High
Court of Delhi which was  dismissed  by  the  High  Court  vide  its  common
judgment and order dated 09.07.2007.
Aggrieved by the same, the appellant filed this appeal  by  way  of  special
leave in this Court. This Court issued notice and also granted interim  stay
of the order passed by the High Court vide its order dated 17.09.2007.

It has been contended by the learned counsel for the appellant  that  during
the pendency of this appeal, the Parliament has repealed the L.A. Act,  1894
and in its place enacted the Act of 2013 which came into force  with  effect
from 01.01.2014 and thus seeking applicability of  beneficial  provision  of
Section 24(2) of the Act of 2013.

It is contended by the learned counsel for the appellant that in  the  light
of  Section  24(2)  of  the  Act  of  2013,  the  entire  land   acquisition
proceedings qua the land of the appellant shall be deemed to have lapsed  as
admittedly the Award in the present case on hand was rendered  by  the  Land
Acquisition Collector on 03.04.2002, i.e. more than 5  years  prior  to  the
commencement of the Act of 2013, but physical  possession  of  the  disputed
land of the appellant has neither been taken as  he  is  still  in  physical
possession by making construction of one room and boundary wall  much  prior
to issuance of the said notifications over his acquired land in dispute  and
the same is now built up and also within 50 meters  from  village-Abadi  nor
compensation amount has been paid to the appellant till date.

It is further contended that this  Court  in  the  case  of  Pune  Municipal
Corporation  &  Anr  v.  Harakchand  Misrimal  Solanki   and   Ors.[1]   has
interpreted the said Section 24(2) of the Act of 2013. It  is  contended  by
the learned counsel for the appellant that in the present case on hand,  the
physical possession of the land of the appellant has  not  been  taken  from
him as he is still in actual physical possession of  his  acquired  land  in
view  of  interim  stay  order  passed  by  this  Court  on  17.09.2007  and
compensation amount has not been paid to the  appellant  till  date  and  as
such acquisition proceedings shall be deemed to have  lapsed  qua  land  and
relied upon the view taken by this Court in the  case  of  Bharat  Kumar  v.
State of Haryana & Anr.[2]
It is contended that during acquisition proceeding, no proper procedure  has
been followed by the authorities concerned by way of giving prior notice  to
the landowners/farmers/appellant herein, whose  structures  exist  over  the
acquired land or in any case standing crops etc. by way of preparing  proper
'Panchnama' in the presence of witnesses  and  the  land-holders,  which  is
contrary to the decisions of this Court  in  Bhanda  Development  Authority,
Bhanda v. Moti Lal Agarwal[3], Raghubir Singh Sehrawat v. State  of  Haryana
and Ors.[4], Patasi Devi v. State of Haryana and Others[5].

It is further contended that it is not possible to take  possession  of  the
huge chunk of acquired land  measuring  1109.11  Bighas  out  of  the  total
acquired land of village-Pansali in one day i.e. on  12.05.2000  by  way  of
following due process of law by  giving  notice  etc.  to  the  land  owners
including the appellant and as such only paper possession has been taken  by
the official concerned.

On the other hand, the learned counsel for the  respondents  contended  that
the possession of the  acquired  land,  including  the  land  owned  by  the
appellant has already been taken by the acquiring authority and handed  over
to the beneficiary agency which has made large scale developments  over  the
land. In case the appellant is having possession of  a  part  of  the  land,
then he is a trespasser and is liable to be prosecuted.

It has been further contended by the learned  counsel  for  the  respondents
that the Act of 2013 is prospective in operation by  virtue  of  Section  24
read with Section 114 of the Act of 2013. As provided under Section 24,  the
effect of Section 6 of the General Clauses Act of 1897,  the  actions  taken
by the respondents have been saved.  By reading the above provisions of  the
two Sections, it is clear that Legislature wanted to protect  and  save  the
acquisition proceedings initiated under the repealed L.A. Act,  particularly
where either  possession  of  the  acquired  land  has  not  been  taken  or
compensation has not been paid to the landowners. It  is  further  submitted
that  the  Act  of  2013  never  intended  to  destroy  entire   acquisition
proceedings in acquiring the land for the public purpose under the  repealed
L.A. Act, 1894. It is well settled position  of  law  that  the  proceedings
initiated and culminated under the repealed  Act  of  1894  are  not  to  be
disturbed by applying  the  interpretation  of  the  provisions of

Section 24(2) of the Act of 2013 made by this Court in  the  above  referred
cases. By operation of the provisions of Section 16 or  17(1)  of  the  L.A.
Act as the case may be, once the possession of the acquired  land  is  taken
by the respondents, the land will be vested in the  State  Government  which
is absolutely free from all encumbrances.  Thereafter, it is not  open  even
for the State Government to restore the land to the land owner  in  exercise
of its power under Section 48  of  the  repealed  L.A.  Act  as  it  is  not
permissible in law. In the cases reported as Satendra Prasad Jain Vs.  State
of Uttar Pradesh[6]. and Sanjeevanagar  Medical  and  Health  Emloyees'  Co-
operative Housing Society Vs. Mohd. Abdul Wahab and Ors.[7], this Court  has
held that once possession is taken by  the  Land  Acquisition  Collector  in
exercise of its statutory power under Section 16 or 17 (1) of  the  repealed
L.A. Act, 1894, the land vests with the  State  Government,  free  from  all
encumbrances, even if

no compensation has been awarded under Section 11 of the repealed  L.A.  Act
within two years,  that  is,  the  statutory  period  prescribed  under  the
repealed L.A. Act for passing an award. In the aforesaid cases,  this  Court
has also held that Section 11(A) (analogous to Section  24  of  the  Act  of
2013) of the repealed L.A. Act is not applicable and further  held  that  in
such circumstances, the only consequence provided under  the  repealed  L.A.
Act is payment of interest under Section  34  in  respect  of  the  acquired
land. Therefore, the acquisition of land cannot be  deemed  to  have  lapsed
under Section 24(2) of the Act of 2013, in view of the law laid down in  the
above cases referred  to  supra.   It  is  contended  that  the  above  said
judgments were not brought to the notice of this Court  while  disposing  of
the case of Pune Municipal Corporation's case & other cases  of  this  Court
referred to supra which are strongly relied on behalf of the  appellant  and
therefore the legal question in this regard requires to  be  referred  to  a
larger Bench of this Court.

We have carefully examined the application filed by  the  appellant  seeking
for the beneficial provision of Section 24(2) of the Act  of  2013  and  the
objections filed by the respondents to the same. After examining  the  facts
and circumstances of the case, we are of the considered view that the  award
passed under Section 11 was passed on 03.04.2002 in respect of the  disputed
land of village-pansali, therefore, it is an undisputed  fact  that  it  was
passed 5 years prior to  the  commencement  of  the  Act  of  2013  and  the
compensation for the acquisition of the appellant's land has not  been  paid
to the appellant. Further, with respect to taking over of possession of  the
land by the respondents, it is clear from the  facts  and  circumstances  of
the case that actual physical possession of the land  in  question  has  not
been taken by the respondents. Even if, for  the  sake  of  argument  it  is
accepted that possession of the land was taken by  the  respondents,  it  is
clear that due procedure has not been followed

by the Acquisition Authority by way of preparing proper 'Panchnama'  in  the
presence of independent witnesses and the land-holders, and therefore it  is
contrary to the principles law laid down by this Court in the case  of  Sita
Ram Bhandar Society, New Delhi v.  Lt. Governor  Govt.  Of  N.C.T.  Delhi  &
Ors.[8] , wherein, this Court held that when possession of a large tract  of
land is to be taken then it is permissible in law to take  possession  by  a
properly executed 'panchnama' attested by independent  witnesses.  This  was
further reiterated by this Court in its decisions  in  the  case  of  Bhanda
Development Authority, Raghubir Singh  Sehrawat,  Patasi  Devi  referred  to
supra.  Further, in the case on  hand  it  is  clear  from  the  photographs
produced along  with  the  affidavit  in  support  of  additional  documents
produced before us that the appellant is still  in  physical  possession  of
his acquired land. Undisputedly, actual physical possession of the  acquired
land has not been taken over by  the  respondents  as  pleaded  by  them  by
following due process of law. Therefore, the acquisition proceedings of  the
land of the appellant are lapsed in view of Section  24(2)  of  the  Act  of
2013 as both the conditions under the said provision are  fulfilled  in  the
present case. This Court has rightly interpreted the said provision  in  its
three Judge Bench  decision  in  the  case  of  Pune  Municipal  Corporation
referred to supra and the legal principle laid  down  with  respect  to  the
same in the above mentioned case was reiterated by this Court in  the  cases
of Bharat Kumar  (supra),  Bimla  Devi  &  Others  v.  State  of  Haryana  &
Others[9] and Union of  India  &  others  v.  Shiv  Raj  &  Others[10].  The
relevant paras of the  Pune  Municipal  Corporation  (supra)  are  extracted
hereunder:-

"20.......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.

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 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."

17. On considering the facts and circumstances of the present  case  in  the
light of the legal principles laid down by this Court in the cases  referred
to supra, we are of the view that neither compensation has been paid by  the
respondents to the appellant for the said acquisition even though more  than
five years have elapsed from the date of Award when the  Act  of  2013  came
into force w.e.f. 01.01.2014 nor physical possession of the  land  belonging
to  the  appellant  has  been  taken  by  the  respondents.  Therefore,  the
acquisition proceedings in respect of the appellant's land  have  lapsed  in
terms of Section 24(2) of the Act of 2013. In view of the law laid  down  by
this Court in  Pune Municipal Corporation's case and  other  cases  referred
to supra, we are of the opinion that the same are  applicable  to  the  fact
situation on hand in respect

of the land covered in this appeal for granting the   relief  as  prayed  by
the appellant in the application.

18. In view of the above findings and reasons recorded by us with  reference
to the facts of the case and placing reliance upon  the  decisions  of  this
Court referred to supra, the  acquisition  proceedings  in  respect  of  the
appellant's land have lapsed. The aforesaid application is  allowed  in  the
above terms and consequently, the appeal is also  allowed  by  quashing  the
acquisition proceeding notification in so far as the land of  the  appellant
is concerned.
     The applications filed in S.L.P.(C) No.16578 of  2007  for  impleadment
of Vijendra Singh, Brij Mohan Lal Jain and Shiv Charan  as  petitioner  Nos.
2, 3, and 4 respectively, are disposed of  with  liberty  to  challenge  the
acquisition proceedings before the High  Court  by  filing  writ  petitions,
placing reliance upon the provision of Section 24(2) of the Act of 2013  and
catena of decisions rendered both under Section 24(2)
of the Act of 2013 and on merits. If such writ petitions are  filed  by  the
above applicants, the same  shall  be  heard  on  merits  and  disposed  of,
keeping in view the decisions of this Court on the legal questions.
    There shall be no order as to costs.

.....................................................................J.
                                          [V. GOPALA GOWDA]


.....................................................................J.
                                              [C. NAGAPPAN]

New Delhi,
December 11, 2014


ITEM NO.1B-For Judgment      COURT NO.11               SECTION XIV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

C.A. No............2014 arising from SLP (C)  No(s).  16578/2007

VELAXAN KUMAR                                      Petitioner(s)

                                VERSUS

UNION OF INDIA & ORS.                              Respondent(s)

Date : 11/12/2014 This petition was called on for hearing today.

For Petitioner(s)
                     Mr. T. N. Singh,Adv.

For Respondent(s)       Mr. Vishnu B. Saharya, Adv.
                     For M/s Saharya & Co.

                     Ms. Rachana Srivastava,Adv.

            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
            Leave granted.
            I.A.  No.  7  is  allowed.   Applications  for  impleadment  are
disposed of.  The appeal  is  allowed  in  terms  of  signed  non-reportable
judgment.

    (VINOD KUMAR)                               (MALA KUMARI SHARMA)
      COURT MASTER                                COURT MASTER
      (Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1]    (2014) 3 SCC 183
[2]    (2014) 6 SCC 586
[3]    (2011) 5 SCC 394
[4]    (2012) 1 SCC 792
[5]    (2012) 9 SCC 503
[6]      (1993) 4 SCC 369
[7]       (1996) 3 SCC 600
[8]    (2009) 10 SCC 501
[9]    (2014) 6 SCC 583
[10]  (2014) 6 SCC 564