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Wednesday, August 19, 2015

LA.Act - we have already concluded that the 1981 acquisition had lapsed because of the failure of the Respondent State to pass an Award and secondly because it had launched upon a fresh acquisition in 1996. Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereafter 2013 Act) deserves to be placed here – “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), - 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 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 replealed”. (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 Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. 10 At first perusal, there seems to be an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. It appears that the State is in a better position in situations where it has been remiss in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. However, it is possible that the reason behind this differentiation is that Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. To give the State the discretion to set aside an acquisition for its own error in not passing an award would be in the face of the decision in Satendra Prasad Jain. The Parliament has therefore sought to give the erstwhile landowner the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. There still remains an incongruity, but which presently we are not burdened to unravel. Which provision in the 2013 Act governs a situation where the State has not progressed beyond making a Declaration under Section 6; where possession of the land has not assumed by the State; where neither part nor whole of the compensation has been paid or tendered! However, since in this Appeal we do not have to traverse this legal labyrinth, we shall refrain from indulging in a more detailed discussion of it. 11 In conclusion we declare that acquisition proceedings with regard to the subject lands have lapsed. The Respondent State is directed to initiate fresh acquisition proceedings or take any other action available to it in accordance with law within six weeks from today. The Appeals are allowed in these terms.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL Nos. 10394-10396 OF 2011

M/S.SOORAJMULL NAGARMULL                   .….. APPELLANT

                                   VERSUS

STATE OF BIHAR & ORS.                              ….. RESPONDENTS

                               J U D G M E N T

VIKRAMAJIT SEN, J.

1     The Appeal before us involves an acquisition of land under Section  17
of the Land Acquisition Act, 1894 (L.A. Act  for  brevity).  The  Respondent
State initiated acquisition  proceedings  in  1981  by  Notifications  under
Section 4 and Section 6 of the L.A. Act, both dated 25.3.1981, invoking  the
urgency provisions contained in Section 17. The operation of Section 5A  was
simultaneously made inapplicable by resorting to Section  17(4).  Possession
of the land was taken by the Respondent State after almost  five  months  on
20.8.1981. The land has  subsequently  been  declared  to  be  a  ‘Protected
Forest’ as envisaged in Section 29 of the Indian Forest  Act,  1927  as  per
Notification  dated  4.9.1990.  Thereafter,  proceedings  were  once   again
initiated by the Respondent State vide another Section 4 Notification  dated
24.5.1995. This was followed by a Notification dated 17.8.1996 issued  under
the urgency provisions of Section 17,  whereby  Section  5A  was  yet  again
dispensed with. The Appellant landowner challenged these proceedings by  way
of a writ petition. The High Court found that since the same land for  which
acquisition proceedings  had  initially  commenced  invoking  the  emergency
provisions fourteen years ago  was  being  re-acquired  once  again  for  an
unspecified public purpose, there was clearly  non-application  of  mind  by
the Respondent State and the action was mala fide in law. The writ  petition
came to be allowed on 22.7.1998 and has subsequently attained  finality.  It
is pertinent to note that the Respondent State, in its counter affidavit  in
that matter, stated that it was  initiating  fresh  acquisition  proceedings
because the 1981 acquisition had lapsed due to the delay in  publishing  the
Award. On 17.11.2003, the Respondent State took steps to  annul  the  second
proceedings by attempting to rely  on  Section  48  with  the  objective  to
withdraw from the acquisition. Subsequently,  the  Appellant  filed  another
writ petition seeking the issuance of a direction commanding the  Respondent
State to release the land in question and hand over its  possession  to  the
Appellant. A writ petition giving rise to CWJC No.15767  of  2004  was  also
filed by the  Divisional  Forest  Officer  challenging  the  action  of  the
Respondent  State  in  endeavouring  to  withdraw   from   the   acquisition
proceedings.  The Forest Officer also sought  a  direction  restraining  the
Authorities from dispossessing  the  Forest  Department  from  the  land.  A
Public Interest Litigation also came to be filed by one Sunil  Kumar  Singh,
a  self  proclaimed  social  activist,  with  the  intent  and  purpose   of
protecting and preserving  the  forest.  While  these  writ  petitions  were
pending, pursuant to an internal communication  dated  14.11.2005  of  which
the  Appellant  had  no  notice,  an  Award  was  published  on   27.9.2006,
purportedly  in  continuity  of  the  1981  acquisition   proceedings.   The
Respondent State has submitted that a  cheque  was  sent  to  the  Appellant
albeit bearing the wrong name. When the Appellant was asked  to  return  the
cheque so  that  a  new  one  could  be  issued,  the  Appellant  asked  the
Respondent State not to take any further  action  as  the  matter  was  sub-
judice. The Appellant, on the other hand, contends that upon its refusal  to
accept the compensation, the Respondent State ought to  have  complied  with
Section 31 of the L.A. Act by depositing the amount with  the  Court,  which
it neglected to do.

2     All three writ petitions were heard together by the  High  Court.  The
arguments put forward by the Appellant were that since  no  Award  had  been
passed till 2006, the acquisition had lapsed under  Section  11A;  that  the
1981 proceedings had lapsed by virtue of the proceedings initiated in  1995-
96; that the land was neither arable nor waste with  the  legal  consequence
that Section 17 was not available  to  the  Respondent  State;  and  that  a
Notification under Section 4 and a Declaration under Section 6  were  issued
on the same day.  However, it was not denied  that  the  Appellant  had  not
challenged 1981 acquisition proceedings or  the  Award  belatedly  published
pursuant thereto.

3     In light of the fact that the 1981  acquisition  proceedings  had  not
been withdrawn by the Respondent State  and  the  incontrovertible  position
that the Appellant had not challenged those proceedings, the Impugned  Order
held that the possession of the land as well as the title thereof vested  in
the Respondent State, notwithstanding the avowedly  delayed  publication  of
the Award. Reliance was placed upon Lt. Governor  of  Himachal  Pradesh  vs.
Shri Avinash Sharma (1970) 2 SCC  149,  according  to  which  land  that  is
statutorily vested in the Government cannot revert to the original owner  by
way of mere cancellation of the Notification. Support was  also  drawn  from
Satendra Prasad Jain vs. State of Uttar Pradesh (1993) 4 SCC 369, which  was
erroneously understood by the High Court to have held  that  the  provisions
of Section 11A do not apply to acquisitions under Section  17  of  the  L.A.
Act.

4     We have dealt  with  a  substantially  similar  factual  and  forensic
scenario in Laxmi Devi vs. State of Bihar, 2015 (7) SCALE 555  in  which  we
have discussed the relevant legal issues at length. Having had  the  benefit
of hearing the arguments in this matter prior to pronouncing that  Judgment,
we had taken into consideration the arguments raised in the present  Appeals
in coming to a considered conclusion on the legal regime pertaining  to  the
acquisition of land. We shall therefore decide these Appeals  in  accordance
with our decision in Laxmi Devi, on the strength of that decision.

5     It has been mentioned in these Appeals themselves that on  13.11.1979,
the Commissioner, Bhagalpur had recorded  that  the  subject  land  was  not
required by the Health  Department  and  it  may  be  given  to  the  Forest
Department instead. It is also the admitted position, and as  already  noted
above, that on  25.3.1981,  consequent  upon  contemporaneous  Notifications
under Sections 4, 6 and 17,  the  Appellant’s  property  was  sought  to  be
acquired for the  Office  of  the  Conservator  of  Forests  and  its  staff
quarters.  Thereafter,  possession  of  the  land  was  duly  taken  by  the
Respondent State, which however failed to pass an Award in respect  thereof.
 Since the acquisition  was  initiated  in  1981,  there  was  no  statutory
obligation to pass an award within two years, as  Section  11A  came  to  be
introduced by way of an  amendment  in  1984.   However,  upon  Section  11A
coming into force on 24.9.1984, the Respondent State was under  a  statutory
obligation to pass an Award within two years of its commencement.  No  Award
was passed in 1986 (i.e. within two years),  or  in  fact  even  till  2006,
causing grave prejudice to, nay deracinating, the Constitutional  rights  of
the Appellant landowner.  It  seems  to  us  that  the  realization  by  the
Respondent State that the failure to pass an Award for  over  a  decade  was
likely to render the acquisition void, is the reason  that  prompted  it  to
once again initiate steps to acquire the land, in terms of the  Notification
dated 13.8.1996. under Section 4 and 17(4) of the  L.A. Act.

6     It is thus clear that the validity of the 2005 revival  and  the  2006
Award is immaterial, as the 1981 acquisition in itself cannot be allowed  to
stand for its abject failure to comply with the requirements of Section  11A
of the L.A. Act. The Respondent State has argued that the Appellant has  not
challenged the 1981 acquisition proceeding, or indeed the 2006  Award,  till
today. While it is true that the Appellant  had  initially  prayed  for  the
issuance of a writ of mandamus commanding the Respondent State to hand  over
possession of the land, the restricted nature of  that  demand  was  because
the  Appellant’s  case  was  predicated  on  the  premise  that   the   1981
acquisition had lapsed, as is  clear  from  a  perusal  of  the  Appellant’s
Affidavit filed before this Court. We shall therefore not be  prejudiced  by
the  fact  that  the  Appellant  has  not  directly  challenged   the   1981
proceedings, but has instead done so indirectly. To penalize  the  Appellant
for a viewpoint that the Respondent State clearly adhered to as  well,  till
the time of initiating  the  2005  revival  of  the  acquisition,  would  be
patently unfair.

7     Furthermore, in light of the judgments in  Land  Acquisition  Officer-
cum-RDO vs. A. Ramachandra Reddy (2011) 2 SCC 447 and Bhimandas  Ambwani  vs
Delhi Power Company Limited (2013) 14 SCC 195, the  1981  acquisition  stood
superseded upon the issuance of the fresh Notifications in 1996. This  Court
has consistently held that old notifications are superseded and  obliterated
by subsequent ones, as the subsequent acquisition  proceeding  manifest  and
indicate the intention of the State to abandon the preceding  one.  This  is
particularly clear in the case at hand, where the Respondent State,  in  its
Counter Affidavit in previous litigation, had asserverated that it  believed
that the 1981 acquisition had lapsed. We find no reason or  basis  to  allow
the Respondent State to revive the lapsed acquisition.

8     We therefore conclude that the actions of the  Respondent  State  have
denied the Appellant just and fair compensation as envisaged and  postulated
in the L.A. Act, for its land from  which  it  was  dispossessed  well  over
three decades ago. The 1981 acquisition is accordingly set  aside  for  non-
compliance with the provisions of Section 11A  of  the  L.A.  Act.  We  must
hasten to reiterate the submission made by the learned Solicitor General  to
the effect that Section 11A, or the necessity  to  pass  an  Award,  is  not
necessary in view of the exposition of the law in Satendra Prasad Jain.   We
may adumbrate, since it already been discussed by  us  in  detail  in  Laxmi
Devi, that the ratio of the Three judge bench in  Satendra  Prasad  Jain  is
confined to the proposition that the errant Respondent  State  is  precluded
from endeavouring to have the acquisition set aside for its own  failure  to
carry out compliance with Section 11A, and that  once  possession  has  been
taken by the State under Section 17 of the L.A. Act, it is  no  longer  open
to the State to relinquish or return the land to the legal  entity  who  had
been dispossessed from it. Accordingly, we refrain from passing  any  orders
or directions interfering with the possession of the Respondent  State  over
the subject land.
9     In this situation the current acquisition law needs  to  be  analysed.
We have already concluded that the 1981 acquisition had  lapsed  because  of
the failure of the Respondent State to pass an Award  and  secondly  because
it had launched upon a fresh acquisition in 1996.  Section 24 of  The  Right
to Fair Compensation and Transparency in  Land  Acquisition,  Rehabilitation
and Resettlement Act, 2013 (hereafter 2013 Act) deserves to be  placed  here

“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), -
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
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 replealed”.
(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 Land Acquisition Act, shall  be  entitled
to compensation in accordance with the provisions of this Act.

10           At  first  perusal,  there   seems   to   be   an   unexplained
inconsistency between Section  24(1)(a),  which  allows  an  acquisition  to
stand  despite  a  failure  to  pass  an  award  while  only  requiring  the
compensation to be determined under the 2013 Act, and Section  24(2),  which
deems the acquisition to have lapsed for a failure to  pay  compensation  or
take physical possession of the land where an award  has  been  passed  over
five years prior to the commencement of the 2013 Act. It  appears  that  the
State is in a better position in situations where  it  has  been  remiss  in
taking any action, towards publication of an award than in situations  where
it has taken  partial  steps  towards  the  completion  of  the  acquisition
proceedings.  However,  it  is  possible  that  the   reason   behind   this
differentiation is  that  Section  24(2)  gives  the  State  the  option  to
initiate fresh proceedings, as opposed to placing an obligation upon  it  to
do so. To give the State the discretion to set aside an acquisition for  its
own error in not passing an award would be in the face of  the  decision  in
Satendra Prasad Jain. The  Parliament  has  therefore  sought  to  give  the
erstwhile landowner the benefit of  enhanced  compensation  under  the  2013
Act, while restraining the State from taking advantage  of  its  own  wrong.
Section 24(2), on the other hand, seeks to allow the land to be returned  to
the landowner party in situations where there is genuinely no need  for  it,
thus benefiting both the dispossessed landowner and the State.  There  still
remains an incongruity, but which presently we are not burdened to  unravel.
Which provision in the 2013 Act governs a situation where the State has  not
progressed beyond making a Declaration under Section 6; where possession  of
the land has not assumed by the State; where neither part nor whole  of  the
compensation has been paid or tendered! However, since in this Appeal we  do
not have to traverse this legal labyrinth, we shall refrain  from  indulging
in a more detailed discussion of it.

11    In conclusion we declare that acquisition proceedings with  regard  to
the subject lands have lapsed. The Respondent State is directed to  initiate
fresh acquisition proceedings or take any other action available  to  it  in
accordance with law within six weeks from today. The Appeals are allowed  in
these terms.


……….…………………………J.
[VIKRAMAJIT SEN]




………………………………….J.
[ABHAY MANOHAR SAPRE]

New Delhi;
August 17, 2015



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