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Sunday, September 28, 2014

Land acquisition Act - Award passed -Award stands cancelled as possession not taken - stay not bars - New Act applies - Apex court held that there is no dispute that physical possession of the lands belonging to the appellants under consideration in these appeals has not been taken by the State or any other authority on its behalf and more than five years have elapsed since the making of the award dated 30.11.2006 and 01.01.2014 when the 2013 Act came into force. Therefore, the conditions mentioned in Section 24(2) of the 2013 Act are satisfied for allowing the plea of the appellants that the land acquisition proceedings must be deemed to have lapsed in terms of Section 24(2) of the 2013 Act. The appeals are disposed of accordingly. It goes without saying that the Government of Tamil Nadu shall be free, if it so chooses to initiate proceedings of such land acquisition afresh in accordance with the provisions of 2013 Act. In the facts and circumstances of the case there shall be no order as to costs.= CIVIL APPEAL NO.8700 OF 2013 Sree Balaji Nagar Residential Association …..Appellant Versus State of Tamil Nadu & Ors. …..Respondents = 2014 -Sept. Month - http://judis.nic.in/supremecourt/filename=41900

     Land acquisition Act - Award passed -Award stands cancelled as possession not taken - stay not bars - New Act applies -  Apex court held that there  is  no  dispute that physical possession of the lands  belonging  to  the  appellants  under consideration in these appeals has not been taken by the State or any  other authority on its behalf and more than five  years  have  elapsed  since  the making of the award dated 30.11.2006 and 01.01.2014 when the 2013  Act  came into force.  Therefore, the conditions mentioned in  Section  24(2)  of  the 2013 Act are satisfied for allowing the plea  of  the  appellants  that  the land acquisition proceedings must be deemed  to  have  lapsed  in  terms  of Section 24(2) of the 2013 Act.  The appeals  are  disposed  of  accordingly. It goes without saying that the Government of Tamil Nadu shall be  free,  if it so chooses to initiate proceedings of such  land  acquisition  afresh  in accordance with the provisions of 2013 Act.  In the facts and  circumstances of the case there shall be no order as to costs.=

  Whereas in Civil  Appeal  No.8700  of  2013,  filed  by  an  Association  of
Residents of a particular  locality,  the  challenge  is  to  the  order  of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998  containing  a
scheme for development of a proposed canal by  name  Madhavaram  Left  Flank
Water Surplus Course, on the ground that  the  scheme  is  misconceived  and
technically flawed which shall lead to unnecessary acquisition of  land  and
building belonging to the residents of the affected area,  the  other  Civil
Appeals contain specific challenge to proceedings initiated under  the  Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken  by
the Tamil Nadu State Government for the purpose  of  implementation  of  the
said  scheme  covered  by  G.O.  No.122  relating  to  the  proposed   canal
improvement works. 
The actual land acquisition proceedings  commenced  with
issuance of Notification under  Section  4(1)  of  the  Act  on  02.02.2005,
insofar as the lands under dispute are concerned.  
The  Award  was  made  on
30.11.2006 but in the meantime as appears from  the  facts  stated  in  C.A.
No.8700 of 2013, upon a challenge made to  the  Notification  under  Section
4(1) of the Act, the High Court stayed dispossession of the  concerned  land
holders by order dated 17.2.2005  
but  ultimately  the  writ  petitions  and other tagged matters were dismissed on 27.4.2007.  =

The parties have been heard only on this narrow legal  aspect  to  find  out
whether the appellants’ prayer noted above deserves to be  allowed  in  view
of Section 24(2) of 2013 Act or not.  
In view  of  the  order  proposed,  we
find it futile to refer to and  discuss  the  facts  involved  in  different
civil appeals.  
Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this  Act,  in  any  case  of
land acquisition proceedings  initiated  under  the  Land  Acquisition  Act,
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,
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.” =

whether  compensation  has  been  paid  for
majority of land holdings under acquisition or  not,  there  is  no  dispute
that physical possession of the lands  belonging  to  the  appellants  under
consideration in these appeals has not been taken by the State or any  other
authority on its behalf and more than five  years  have  elapsed  since  the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013  Act  came
into force.  Therefore, the conditions mentioned in  Section  24(2)  of  the
2013 Act are satisfied for allowing the plea  of  the  appellants  that  the
land acquisition proceedings must be deemed  to  have  lapsed  in  terms  of
Section 24(2) of the 2013 Act.  The appeals  are  disposed  of  accordingly.
It goes without saying that the Government of Tamil Nadu shall be  free,  if
it so chooses to initiate proceedings of such  land  acquisition  afresh  in
accordance with the provisions of 2013 Act.  In the facts and  circumstances
of the case there shall be no order as to costs.

  2014 -Sept. Month -  http://judis.nic.in/supremecourt/filename=41900

                                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8700 OF 2013

Sree Balaji Nagar Residential Association                …..Appellant

      Versus

State of Tamil Nadu & Ors.                         …..Respondents

                                   W I T H

                CIVIL APPEAL NOS.8701 OF 2013; 8702 OF 2013;
                       8703 OF 2013;  AND 8704 OF 2013


                               J U D G M E N T



SHIVA KIRTI SINGH, J.

These civil appeals have been heard together  because  they  involve  common
questions of law and fact and, therefore, they  are  being  disposed  of  by
this common judgment and order.
Whereas in Civil  Appeal  No.8700  of  2013,  filed  by  an  Association  of
Residents of a particular  locality,  the  challenge  is  to  the  order  of
Government of Tamil Nadu bearing G.O. No.122 dated 14.07.1998  containing  a
scheme for development of a proposed canal by  name  Madhavaram  Left  Flank
Water Surplus Course, on the ground that  the  scheme  is  misconceived  and
technically flawed which shall lead to unnecessary acquisition of  land  and
building belonging to the residents of the affected area,  the  other  Civil
Appeals contain specific challenge to proceedings initiated under  the  Land
Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) undertaken  by
the Tamil Nadu State Government for the purpose  of  implementation  of  the
said  scheme  covered  by  G.O.  No.122  relating  to  the  proposed   canal
improvement works.  The actual land acquisition proceedings  commenced  with
issuance of Notification under  Section  4(1)  of  the  Act  on  02.02.2005,
insofar as the lands under dispute are concerned.  The  Award  was  made  on
30.11.2006 but in the meantime as appears from  the  facts  stated  in  C.A.
No.8700 of 2013, upon a challenge made to  the  Notification  under  Section
4(1) of the Act, the High Court stayed dispossession of the  concerned  land
holders by order dated 17.2.2005  but  ultimately  the  writ  petitions  and
other tagged matters were dismissed on 27.4.2007.  The matter  reached  this
Court and as  a  result  of  an  interim  order  passed  by  this  Court  on
18.05.2007 in C.A.No.8701 of 2013 [arising out of S.L.P.(C)No.9492 of  2007]
the land holders have remained protected from being dispossessed from  their
lands in question.
The various orders passed by this Court  in  these  cases  reveal  that  the
matter was taken up in a much wider  perspective  in  the  light  of  larger
issues raised in public interest that alternative  scheme  be  also  devised
and taken into account to prevent unnecessary displacement of  large  number
of residents and with a view to protect likely pollution of  some  lakes  on
account of flood waters entering into such lakes and thereby  affecting  the
cleanliness of possible sources for supply of drinking water.   This  Court,
long  back  on  10.02.2010  felt  the  need  for  and  hence  directed   the
respondents to submit a revised  comprehensive  plan  of  the  area  showing
location of various water  bodies,  the  construction  of  canal  which  had
already taken place and the natural flow of  water  from  Ambattur  tank  to
Korattur tank and from Korattur tank to Capt. Cotton Canal.  On  31.03.2010,
learned senior  counsel  for  the  State  of  Tamil  Nadu  referred  to  and
submitted a final report by Mott  MacDonald,  an  expert  appointed  by  the
Government of Tamil Nadu to study the entire scheme and prepare Storm  Water
Drainage Master Plan for Madras City and Pre-feasibility  Study  for  Madras
Metropolitan Area.  On going through the relevant portions of  that  Report,
this Court decided to appoint an expert  body  to  study  the  environmental
aspect of the scheme under challenge because the  expert  appointed  by  the
State Government had suggested  further  study/monitoring  of  ground  water
outside the Chennai Metropolitan area.   By  order  dated  09.04.2010,  this
Court appointed a Committee of several experts  under  the  Chairmanship  of
Hon’ble Mr. Justice Doraiswamy Raju, a former  Judge  of  this  Court.   The
terms of reference included eight points and the Committee was requested  to
submit its report within three months.   The  Committee’s  report  was  made
available to this Court,  belatedly and for one reason  or  the  other,  the
matter could not be heard finally for  a  long  period.   At  the  stage  of
hearing, on 10.07.2014, the State of Tamil Nadu  expressed  its  willingness
to explore the possibility of arriving at some consensus.  This  course  was
adopted in view of relevant map and materials which showed that  as  a  part
of  Chennai  City  Waterways  Alignment  of  Surplus  Course   Package   IV,
considerable part of the proposed canal had  already  been  constructed  but
the balance part remained incomplete only on account of present  proceedings
against acquisition of lands for  the  purpose.   However,  the  High  Level
Committee meeting under Chairmanship of the Chief  Secretary  of  the  State
involving  the  petitioners  in  public  interest  litigation  as  well   as
representatives of the land owners’ Association could not prove fruitful.
In the meanwhile, on account of a subsequent  legislation  –  The  Right  to
Fair Compensation and Transparency in Land Acquisition,  Rehabilitation  and
Resettlement Act, 2013 (for brevity, ‘2013 Act’)  coming  into  effect  from
01.01.2014, through I.A. No.3 filed in Civil Appeal No.8701 of 2013, a  plea
was raised on behalf of the appellants that the appeals be allowed in  terms
of Section 24(2) of the 2013 Act by holding that the acquisition  proceeding
initiated under the Act has lapsed.
The parties have been heard only on this narrow legal  aspect  to  find  out
whether the appellants’ prayer noted above deserves to be  allowed  in  view
of Section 24(2) of 2013 Act or not.  In view  of  the  order  proposed,  we
find it futile to refer to and  discuss  the  facts  involved  in  different
civil appeals.  Section 24 of 2013 Act is as follows :
“24. (1) Notwithstanding anything contained in this  Act,  in  any  case  of
land acquisition proceedings  initiated  under  the  Land  Acquisition  Act,
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,
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.”

It  has  been  contended  by  learned  senior  counsel  appearing  for   the
appellants that in view of the non obstante clause  in  sub-section  (2)  of
Section 24, notwithstanding an award passed under Section 11 of the  Act  in
respect of acquisition proceedings under challenge, such proceedings  cannot
continue under the provisions of the Act  because  the  award  was  made  on
30.11.2006, i.e., more than five years  earlier  and  undisputedly  physical
possession of the land of the concerned appellants has  not  been  taken  as
yet. It has further been contended that proceedings have lapsed  because  in
several cases the alleged payment is only by way of deposit in  treasury  on
30.03.2007 and not by deposit in Court, as required by  law.   Reliance  has
been placed upon a judgment of this Court in  the  case  of  Pune  Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & Ors. (2014) 3  SCC  183
in support of the contention that compensation cannot be said to  have  been
paid  only  by  its  deposit  with  the  Revenue  authorities  such  as  the
Government treasury, it can be accepted to have been  paid  only  if  it  is
actually paid to the land  owner  or  is  deposited  in  the  Court  as  per
requirement of Section 31 of the Act.  For showing  that  at  least  in  the
case of some land holders, the compensation  was  simply  deposited  in  the
Revenue Deposit Account in the sub-treasury and not in the concerned  Court,
a letter of Spl. Thasildar  (LA),  Chennai  Corporation  Waterways  Project,
Ambattur, Chennai, dated 30.03.2007 has been annexed with I.A. No.3 of  2014
in C.A.No.8701 of 2013.
 In reply Mr. Subramonium Prasad, AAG  for  the  State  of  Tamil  Nadu  has
produced some charts and documents to  submit  that  compensation  has  been
deposited in several cases with the concerned Civil Court also and  in  some
cases the payments have been accepted by the land owners.  However, even  as
per the chart containing details of award and payments for 3.31 hectares  of
land involved in the case of Vishwanathan & Ors. in  C.A.  No.8701  of  2013
[arising out of S.L.P.(C) No.9492 of 2007] an amount of   Rs.26,73,851/-  is
shown to be lying in Revenue deposit whereas only for  a  small  portion  of
land an amount of Rs.5,50,056/- is in Civil Court  deposit.   However,  this
issue  need  not  be  pursued  any  further  because   admittedly   physical
possession of the land involved in these appeals has not been taken over  by
the State and on that account alone, the land acquisition  proceeding  under
challenge will have to be treated or  declared  as  lapsed  unless  we  find
merit in the contention raised on behalf of State that this plea  cannot  be
used against the  State  because  it  was  prevented  from  taking  physical
possession of the lands on account of interim  orders  passed  by  the  High
Court and this Court.
There is no dispute that writ petitions were filed even  before  the  making
of award and interim orders have operated against the State  of  Tamil  Nadu
and,  therefore,  the  State  was  not  at  fault  in  not  taking  physical
possession of the concerned lands under acquisition.  But the  intention  of
the Legislature in enacting Section 24(2) of the 2013 Act will  have  to  be
culled out from its wordings and on the basis of other  relevant  provisions
of this Act and the relevant case law for deciding  whether  the  period  of
stay/injunction is required to be excluded  in  computing  the  five  years’
period or not.
  From a plain reading of Section 24 of  the  2013  Act  it  is  clear  that
Section 24(2) of the 2013 Act does not exclude any period during  which  the
land acquisition proceeding might have remained stayed on  account  of  stay
or injunction granted by any court.  In the same  Act,  proviso  to  Section
19(7) in the context of limitation  for  publication  of  declaration  under
Section 19(1) and the Explanation to  Section  69(2)  for  working  out  the
market value of the  land  in  the  context  of  delay  between  preliminary
notification under Section 11  and  the  date  of  the  award,  specifically
provide that the period or periods during which the acquisition  proceedings
were held up on account of any stay or injunction by the order of any  court
be excluded in computing the relevant period.  In that view  of  the  matter
it can be safely concluded that the Legislature has consciously  omitted  to
extend the period of five years indicated  in  Section  24(2)  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.  Such casus omissus  cannot  be
supplied by the court in view of law on the  subject  elaborately  discussed
by this Court in the case of Padma Sundara Rao (Dead) &  Ors.  v.  State  of
T.N. & Ors. (2002) 3 SCC 533.
Even in the Land Acquisition Act of 1894, the Legislature had brought  about
amendment in Section 6 through an Amendment Act of 1984 to  add  Explanation
1 for the purpose of excluding the period when the proceeding suffered  stay
by an order of  the  court,  in  the  context  of  limitation  provided  for
publishing the declaration under Section 6(1) of  the  Act.   To  a  similar
effect was Explanation to Section 11A which was added by  Amendment  Act  68
of 1984.  Clearly the Legislature has, in its wisdom,  made  the  period  of
five years under Section 24(2) of the 2013 Act absolute  and  unaffected  by
any delay in the proceedings on account of any order of  stay  by  a  court.
The plain wordings used by the Legislature are 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.
It was faintly suggested by Mr. Subramonium  Prasad,  learned  AAG  for  the
State of Tamil Nadu that the proviso may come to the  rescue  of  the  State
and save the proceedings from suffering lapse  if  it  is  held  that  since
there was an award leading to payment of compensation in respect of some  of
the land holdings only, therefore all the beneficiaries may now be  entitled
to compensation in accordance with the provisions of  the  2013  Act.   This
contention  could  have  been  considered  with  some  more  seriousness  if
physical possession of the land had been taken but since that has  not  been
done, the proviso dealing only with compensation cannot be of  any  help  to
the State.  Therefore, we are not required to go deeper into the effect  and
implications of the proviso which prima facie appears to be for the  benefit
of all the land holders in a case where the award is subsisting because  the
proceedings have not lapsed and compensation in respect of majority of  land
holdings has not been deposited in the account of the beneficiaries.   There
is nothing in the language of the proviso to restrict  the  meaning  of  the
words used in Section 24(2) mandating that the proceedings shall  be  deemed
to have lapsed if the award is five years or more than five years’  old  but
the physical possession  of  the  land  has  not  been  taken  over  or  the
compensation has not been paid.   The  law  is  trite  that  when  the  main
enactment is clear and unambiguous, a proviso can have no effect  so  as  to
exclude from the main enactment by implication  what  clearly  falls  within
its express terms, as held by Privy  Council  in  the  case  of  Madras  and
Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality  AIR 1944  PC  71
and by this Court in the case of C.I.T. v. Indo Mercantile  Bank  Ltd.   AIR
1959 SC 713.
The judgment of three Judges’ Bench in  the  case  of  Harakchand  Misirimal
(supra) has been followed by another Bench of three Judges in  the  case  of
Union of India & Ors. etc. v. Shivraj & Ors. etc.  (2014)  6  SCC  564.   In
paragraphs 25 and  26  of  that  judgment,  this  Court  took  notice  of  a
clarification  issued  by  the  Government  of  India,  Ministry  of   Urban
Development,  Delhi  Division  dated  14.03.2014.   Part  of  the   circular
extracted in that case clearly shows that the period of five years  or  more
in Section 24(2) of the 2013 Act has been prescribed with a view to  benefit
the land-losers and the period spent in litigation due to challenge  to  the
award or the land acquisition proceedings cannot be excluded.
From the discussions made above, it is amply  clear  that  though  there  is
lack of clarity  on  the  issue  whether  compensation  has  been  paid  for
majority of land holdings under acquisition or  not,  there  is  no  dispute
that physical possession of the lands  belonging  to  the  appellants  under
consideration in these appeals has not been taken by the State or any  other
authority on its behalf and more than five  years  have  elapsed  since  the
making of the award dated 30.11.2006 and 01.01.2014 when the 2013  Act  came
into force.  Therefore, the conditions mentioned in  Section  24(2)  of  the
2013 Act are satisfied for allowing the plea  of  the  appellants  that  the
land acquisition proceedings must be deemed  to  have  lapsed  in  terms  of
Section 24(2) of the 2013 Act.  The appeals  are  disposed  of  accordingly.
It goes without saying that the Government of Tamil Nadu shall be  free,  if
it so chooses to initiate proceedings of such  land  acquisition  afresh  in
accordance with the provisions of 2013 Act.  In the facts and  circumstances
of the case there shall be no order as to costs.


      ..…………………………………………………….J.
      [FAKKIR MOHAMED IBRAHIM KALIFULLA]



       ……………………………………………………..J.
                 [SHIVA KIRTI SINGH]

New Delhi.
September 10, 2014.

                           -----------------------
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