RAJIV CHOUDHRIE HUF Vs. UNION OF INDIA & ORS : Supreme Court - Section 24(2) of the Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Supreme Court of India
CIVIL APPEAL NO.8785 OF 2013 Judgment Date: Dec 10, 2014
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. No. 4 of 2014
IN
CIVIL APPEAL NO.8785 OF 2013
RAJIV CHOWDHRIE HUF .........APPELLANT
Vs.
UNION OF INDIA & ORS. .........RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
This I.A. No.4 of 2014 in Civil Appeal No. 8785 of 2013 is filed by the
appellant seeking for issuing direction and pass an order for disposal of
this appeal in terms 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'). The appellant-land owner has come to this
Court questioning the correctness of the judgment and order dated
26.03.2010 passed by the Division Bench of the High Court of Delhi in
W.P.(C)No. 2161 of 2006, wherein, the High Court dismissed the said
petition.
Brief facts of the case are stated hereunder:
The appellant Hindu Undivided Family (for short HUF) purchased land
comprising of Khasra Nos. 569, 575, 581, 586, 591, 592 (New Khasra Nos.
27/9, 12, 19, 22, 36/2, 9) on 07.06.1984 in all measuring 27 bighas
situated in the revenue estate of village Bamnauli, Tehsil Mehrauli
(presently Tehsil Vasant Vihar, Kapashera), New Delhi. On application made
by the appellant, the Municipal Corporation of Delhi (MCD) vide Sanction
Letter No.972/B/HQ/84 dated 23/01/1985 sanctioned the plan for constructing
a farm house on part of the said land. In January 1985, the appellant
constructed a farm house on the aforesaid land, which was in accordance
with the plan duly sanctioned. After the completion of the construction,
the MCD issued a completion certificate dated 06.11.1985 to the appellant.
On 26.11.2004, the Government of National Capital Territory (NCT) issued
the notification dated 04.11.2004 under Section 4 of the repealed Land
Acquisition Act, 1894 (for short 'the L.A. Act') in respect of land area
measuring 2100 bighas and 06 biswas in respect of village Bamnauli, Tehsil
Mehrauli. The public purpose mentioned in the notification under Section 4
of the L.A. Act was for construction of Dwarka, Phase II, the land of the
appellant was covered in the said notification. The appellant filed his
objections under Section 5A of the L.A. Act before the Land Acquisition
Collector (for short 'LAC'), South West Delhi opposing the proposed
acquisition for public purpose.
Thereafter, on 10.11.2005, the declaration notification under Section 6(1)
of the L.A. Act dated 31.10.2005 was published in the government Gazette in
respect of the land sought to be acquired including the land owned by the
appellant.
The appellant filed Writ Petition (Civil) No. 2161 of 2006 before the High
Court of Delhi at New Delhi, challenging the legality of the notifications
under Sections 4 and 6 of the L.A. Act. The High Court issued notice and
passed an order of "status quo" in respect of the land in question. The
other land holders who were similarly situated had also challenged the said
two notifications and the High Court upon examining the writ petitions on
merits dismissed the same with a direction to the land owners that they
were permitted to file a representation to the competent authority under
Section 48 of the L.A. Act, to de-notify their land and further held that
till such time as their representation for denotification is decided by the
NCT, the parties are directed to maintain "status quo" as to nature, title
and possession of the land in question. Hence, this appeal.
This Court vide order dated 08.11.2010 passed an interim order to maintain
"status quo" in respect of the possession of the land in question,
subsequently the same was made absolute till the disposal of the appeal.
It is the case of the appellant that throughout the proceedings before the
High Court as well as this Court, it has been in physical possession of the
land involved in this appeal. In fact, the actual physical possession of
the land was never taken by the respondents. Furthermore, the appellant was
protected by various interim orders of "status quo" both by the High Court
as well as this Court with respect to the possession of the land in
question.
Mr. Chandra Uday Singh, the learned senior counsel appearing on behalf of
the appellant placed reliance upon Section 24(2) of the Act of 2013 to
support the plea of the appellant that the land acquisition proceedings
initiated under the L.A. Act would be deemed to have lapsed where an award
was made 5 years prior to the commencement of the Act of 2013 and physical
possession of the land has not been taken or the compensation towards the
acquired land was not paid to the appellant. Therefore, the above provision
of the Act of 2013 provides for lapse of such acquisition proceedings which
provision is aptly applicable to the fact situation. Section 24(2) of the
2013 Act, upon which strong reliance has been placed by the learned senior
counsel on behalf of the appellant is extracted as under:-
"(2) Notwithstanding anything contained in sub-section (1), in case of land
acquisition proceedings initiated under the LA Act, 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 whether 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 specified in the notifications for acquisition
under Section 4 of the said land acquisition and shall be entitled to
compensation in accordance with the provisions of this Act."
Having regard to the facts narrated above, it is contended by the learned
senior counsel for the appellant that by virtue of Section 24(2) of the Act
of 2013, the land acquisition proceedings in the present case on hand
initiated under the L.A. Act have lapsed for the reason that the award
under Section 11 of the L.A. Act, which was made by the LAC on 06.08.2007
vide Award No.1/2007-2008 more than five years prior to the commencement of
the Act of 2013, which has commenced from 01.01.2014 and physical
possession of the land in dispute is neither taken nor has the compensation
awarded been paid to the appellant in respect of his acquired land.
It has been further contended that the case of the appellant herein is duly
covered under the aforesaid provisions of the Act as the appellant has been
in continuous possession of the land in question and compensation has not
been paid to the appellant while the award was made more than 5 years prior
to the commencement of the Act of 2013. Reliance was placed on the three
Judge Bench decision of this Court in Pune Municipal Corporation and Anr.
Vs. Harakchand Misirimal Solanki & Ors.[1], and the other judgments of this
Court in Bharat Kumar v. State of Haryana & Another[2], Bimla Devi & Others
v. State of Haryana & Others[3] and Union of India & Others v. Shiv Raj &
Others[4], wherein Section 24(2) of the Act of 2013, was examined by this
Court at length and held that the land acquisition proceedings initiated
under the L.A. Act are deemed to have lapsed, where the award has been made
five years or more prior to the commencement of the Act of 2013 and
physical possession of the land is not taken or compensation has not been
paid to the appellant. It is further contended that the law laid down by
this Court in the Pune Municipal Corporation's case (supra) and other cases
referred to supra, squarely cover the case on hand in favour of the
appellant. Therefore, it is prayed by him that the instant appeal be
disposed of since the acquisition proceedings of the land have lapsed in
terms of Section 24(2) of the Act of 2013.
On the other hand, it has been 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 in acquiring the land in dispute and
passing an award 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 denotify and 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 UP[5]. and Sanjeevanagar Medical and Health Emloyees' Co-operative
Housing Society Vs. Mohd. Abdul Wahab and Ors.[6], 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) of the repealed L.A. Act is not
applicable (which is analogous to Section 24 of the Act of 2013) 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, he submits that 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 by the learned counsel on behalf of the respondents 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 and other cases
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.
Further, it is contended by the respondents that by a careful reading of
Section 24(2) of the Act of 2013, it would show that the proceedings
initiated under the L.A. Act shall be deemed to have lapsed, if two
conditions as mentioned below are not satisfied by the appellant. They are:
(i)An Award under Section 11 of 1894 Act should have been made five years
or more prior to the commencement of Act of 2013;
(ii)Whether physical possession had not been taken or the compensation has
not been paid.
A perusal of the provision of Section 24(2) of the Act reveals that it is
in two parts. The first part relates to a positive state of affair, namely,
the existence of award for more than five years on the commencement of the
New Act, whereas, the second part lays down two negative conditions. Thus,
the word 'or' has been used to express an alternative of the
terms/conditions enumerated therein. Therefore, if either of the two
negative conditions which are found to be mentioned in Section 24(2)
remains unfulfilled by the respondents, the acquisition proceedings in
respect of the land be held to be not lapsed, is the legal contention urged
on behalf of the respondents by placing reliance upon the decision of this
Court in the case of The Punjab Produce and Trading Co. Ltd. v. CIT, West
Bengal, Calcutta[7]. Neither the said legal issue is considered nor the law
laid down in the aforesaid judgment was brought to the notice of this Court
at the time of hearing of the case of Pune Municipal Corporation and other
cases referred to supra and thus have not been considered by this Court
while disposing of the cases on which reliance has been placed by the
appellant as they have to be referred to the larger Bench for its
reconsideration is the submissions of the learned senior counsel on behalf
of NCT. Further, it is contended that if the above provisions are read in
this manner, then it will be in harmony with the L.A. Act.
Further, it is contended that the appellant had filed writ petition in this
Court when this Court was pleased to grant "status quo" in respect of the
land in question. Although the High Court has dismissed the Writ Petition
on 26.03.2010 but extended the interim order of "status quo" regarding the
possession of the land till the representation filed by the appellant for
release of the land under Section 48 of the L.A. Act was decided by the
Competent Authority of NCT. When the appellant challenged the said order
before this Court by way of Special Leave Petition, this Court directed the
parties to maintain "status quo" in respect of the land in question
resultantly on the strength of the interim order passed by the High Court
as well as by this Court the possession of the land could not be taken by
the respondents and the same remained with the appellant. In the teeth of
the aforesaid fact that the appellant continued to be in possession of the
land in question only due to interim order of "status quo" passed in their
favour is not proper for the appellant to turn around and contend now at
this stage that physical possession of the land has not been taken by the
respondents and therefore, the acquisition proceedings of the land are
lapsed.
We have carefully gone through the factual and rival legal contentions
urged on behalf of both the parties in the backdrop of the case laws cited
above. On examining the facts and circumstances of the case on hand, it is
an undisputed fact that the award was made 5 years prior to the date of
commencement of the Resettlement Act, 2013 i.e. on 06.08.2007 vide Award
No. 1/2007-2008 and either physical possession of the land should have been
taken or compensation has been paid to the appellant in respect of his
acquired land. Therefore, the acquisition proceedings of the land of the
appellant are lapsed in view of Section 24(2) of the Act of 2013, which
provision has been rightly interpreted by this Court by a three Judge Bench
decision in the case of Pune Municipal Corporation and other cases referred
to supra, the relevant paras of the aforesaid case 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."
Further, with regard to the legal contention that physical possession of
the land could not have been taken by the respondents in view of the
interim order of "status quo" passed by this Court. This Court in the case
of Sree Balaji Nagar Residential Association v. State of Tamil Nadu &
Ors.[8], held that Section 24(2) of the Act of 2013 does not exclude any
period during which the land acquisition proceedings might have remained
stayed on account of stay or injunction granted by any court. It was
conclusively held that the Legislature has consciously omitted to extend
the period of five years indicated in Section 24(2) of the Act of 2013 for
grant of relief in favour of land owners even if the proceedings had been
delayed on account of an order of stay or injunction granted by a court of
law or for any reason. Thus, the said period has to be excluded as provided
under the amended proviso to Section 6 of the L.A. Act by way of an
amendment by the legislature to the above Section 6 through an Amendment
Act 68 of 1984, to add Explanation 1 to the Act, for the purpose of
excluding the period, when the proceedings suffered stay by an order of the
Court, in the context of limitation provided for publishing the declaration
notification under Section 6(1) of the Act. The Explanation to Section
11A, which was added by Amendment Act 68 of 1984 was to a similar effect.
This Court in the above case has examined this legal contention and held
that the legislature in its wisdom made the period of five years under
Section 24(2) of the Resettlement Act, 2013, absolute and unaffected by any
delay in the proceedings on account of any order of stay by a court of Law.
The plain wordings used by the Legislature under the provisions of Section
24(2) are made very clear and do not create any ambiguity or conflict. In
such a situation, the court is not required to depart from the literal rule
of interpretation, as held by this Court in the case of C.I.T., Mysore v.
The Indo Mercantile Bank Ltd.[9] as under:-
"10. Lord Macmillan in Madras & Southern Maharatta Railway Co. v. Bezwada
Municipality laid down the sphere of a proviso as follows:
"The proper function of a proviso is to except and deal with a case which
would otherwise fall within the general language of the main enactment, and
its effect is confined to that case. Where, as in the present case, the
language of the main enactment is clear and unambiguous, a proviso can have
no repercussion on the interpretation of the main enactment, so as to
exclude from it by implication what clearly falls within its express terms.
The territory of a proviso therefore is to carve out an exception to the
main enactment and exclude something which otherwise would have been within
the section. It has to operate in the same field and if the language of the
main enactment is clear it cannot be used for the purpose of interpreting
the main enactment or to exclude by implication what the enactment clearly
says unless the words of the proviso are such that that is its necessary
effect."
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 (supra) 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.
.....................................................................J.
[V. GOPALA GOWDA]
.....................................................................J.
[C. NAGAPPAN]
New Delhi,
December 10,2014
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