The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, Section 24 - All the acquisition proceedings pending comes under the new act if award was not passed - and if award passed before commencement of this Act old Act applies for all purposes - and if though award passed 5 years or more back itself but compensation was not paid and no possession was taken, then it can be considered as the acquisition proceedings are lapsed once for all after the commencement of this Act - if desires Fresh proceedings to be initiated afreshly as per new Act =
in view of Section 24(2) of The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, the subject land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (for short, ‘1894 Act’) have lapsed.
The
question for decision relates to true meaning of the expression:
“compensation has not been paid” occurring in Section 24(2) of the 2013
Act.
2013 Act puts in place entirely new regime for compulsory
acquisition of land and provides for new scheme for compensation, rehabilitation and resettlement to the affected families whose land has been acquired or proposed to be acquired or affected by such acquisition.
9. To turn, now, to the meaning of the expression “compensation
has not been paid” in Section 24(2) of the 2013 Act and its effect on the
subject acquisition, it is necessary to refer to Section 24 which reads 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Acquisition Act, as if the said Act has not been repealed.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 holding 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.”
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 Agnelo Santimano Fernandes[2], relying upon the earlier decision
in Prem Nath Kapur[3], 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.
20. 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.
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 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.
22. In view of the foregoing discussion, it is not necessary to
consider the correctness of the impugned judgment on merits.
23. The appeals fail and are dismissed with no order as to costs.
2014 ( January - Vol - 1) Judis.nic.in/ S.C./ file name =41177
R.M. LODHA, MADAN B. LOKUR, KURIAN JOSEPH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 877 OF 2014
(Arising out of SLP(C) No. 30283 of 2008)
Pune Municipal Corporation & Anr. … Appellants
Versus
Harakchand Misirimal Solanki & Ors. … Respondents
WITH
CIVIL APPEAL NO. 878 OF 2014
(Arising out of SLP(C) No. 30455 of 2008)
WITH
CIVIL APPEAL NO. 879 OF 2014
(Arising out of SLP(C) No. 30470 of 2008)
WITH
CIVIL APPEAL NO. 880 OF 2014
(Arising out of SLP(C) No. 30467 of 2008)
WITH
CIVIL APPEAL NO. 881 OF 2014
(Arising out of SLP(C) No. 30465 of 2008)
WITH
CIVIL APPEAL NO. 882 OF 2014
(Arising out of SLP(C) No. 30469 of 2008)
WITH
CIVIL APPEAL NO. 883 OF 2014
(Arising out of SLP(C) No. 30543 of 2008)
WITH
CIVIL APPEAL NO. 884 OF 2014
(Arising out of SLP(C) No. 30546 of 2008)
WITH
CIVIL APPEAL NO. 885 OF 2014
(Arising out of SLP(C) No. 30548 of 2008)
AND
CIVIL APPEAL NOS. 886-894 OF 2014
(Arising out of SLP(C) Nos. 15847-15855 of 2010)
JUDGMENT
R.M. LODHA, J.
Delay condoned in S.L.P. (C) Nos.15847-15855 of 2010. Leave
granted.
2. In these 18 appeals, by special leave, it is argued on behalf
of the respondents-landowners that
in view of Section 24(2) of The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, the subject land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (for short, ‘1894 Act’) have lapsed.
The
question for decision relates to true meaning of the expression:
“compensation has not been paid” occurring in Section 24(2) of the 2013
Act.
3. It may not be necessary at all to go into the legality and
correctness of the impugned judgment, if the subject land acquisition
proceedings are held to have lapsed. We, therefore, deal with this aspect
first.
4. The brief facts necessary for consideration of the above
question are these.
On 06.08.2002, the proposal of the Municipal
Commissioner, Pune Municipal Corporation (for short, “Corporation”) duly
approved by the Standing Committee for acquisition of lands admeasuring
43.94 acres for development of “Forest Garden” was sent to the Collector,
Pune.
The Collector sanctioned the proposal and on 20.02.2003 forwarded
the same to Special Land Acquisition Officer (15), Pune for further action.
On 30.09.2004, the notification under Section 4 of the 1894 Act was
published in the official gazette. Then notices under Section 4(1) were
served upon the landowners/interested persons. On 26.12.2005, the
declaration under Section 6 was published in the official gazette and on
02.02.2006, it was also published at the site and on the notice board of
the Office of Talaltti. Following the notices under Section 9, on
31.01.2008 the Special Land Acquisition Officer made the award under
Section 11 of the 1894 Act.
5. The landowners challenged the above acquisition proceedings
before the Bombay High Court in 9 writ petitions. Of them, 2 were filed
before making award and 7 after the award. The challenge to the
acquisition proceedings and the validity of the award was laid on diverse
grounds including
(i) absence of resolution of the General Body of the
Corporation;
(ii) non-compliance with the provisions of Section 5A,
(iii)
non-compliance with the provisions of Section 7, and
(iv) lapsing of
acquisition proceedings under Section 11A.
The High Court on consideration
of the arguments advanced before it by the parties has held that the
acquisition proceedings for the development of “Forest Garden” could not be
initiated by the Commissioner with the mere approval of the Standing
Committee without resolution of the General Body of the Corporation. The
acquisition proceedings were also held bad in law for non-compliance of
Section 7 and other statutory breaches. Inter alia, the High Court has
quashed the acquisition proceedings and gave certain directions including
restoration of possession.
6. It is argued on behalf of the landowners that by virtue of
Section 24(2) of the 2013 Act, the subject acquisition shall be deemed to have been lapsed because the award under Section 11 of the 1894 Act is made more than five years prior to the commencement of 2013 Act and no compensation has been paid to the owners nor the amount of compensation has
been deposited in the court by the Special Land Acquisition Officer.
7. On the other hand, on behalf of the Corporation and so also for
the Collector, it is argued that the award was made by the Special Land
Acquisition Officer on 31.01.2008 strictly in terms of 1894 Act and on the
very day the landowners were informed regarding the quantum of compensation
for their respective lands. Notices were also issued to the landowners to
reach the office of the Special Land Acquisition Officer and receive the
amount of compensation and since they neither received the compensation nor
any request came from them to make reference to the District Court under
Section 18, the compensation amounting to Rs.27 crores was
deposited in the government treasury. It is, thus, submitted that there was
no default on the part of the Special Land Acquisition Officer or the
government and, hence, the acquisition proceedings have not lapsed.
Moreover, reliance is also placed on Section 114 of the 2013 Act and it is
argued that the concluded land acquisition proceedings are not at all
affected by Section 24(2) and the only right that survives to the
landowners is to receive compensation.
8. 2013 Act puts in place entirely new regime for compulsory
acquisition of land and provides for new scheme for compensation, rehabilitation and resettlement to the affected families whose land has been acquired or proposed to be acquired or affected by such acquisition.
9. To turn, now, to the meaning of the expression “compensation
has not been paid” in Section 24(2) of the 2013 Act and its effect on the
subject acquisition, it is necessary to refer to Section 24 which reads 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 holding 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.”
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.
11. 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.
12. 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:
“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:
xxxx xxxx xxxx xxxx”
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 (sub-section (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.
18. 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[1]) 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.
19. 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 Agnelo Santimano Fernandes[2], relying upon the earlier decision
in Prem Nath Kapur[3], 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.
20. 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.
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 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.
22. In view of the foregoing discussion, it is not necessary to
consider the correctness of the impugned judgment on merits.
23. The appeals fail and are dismissed with no order as to costs.
…..………………………….J.
(R.M. Lodha)
…..………………………….J.
(Madan B. Lokur)
…..………………………….J.
(Kurian Joseph)
New Delhi,
January 24, 2014.
-----------------------
[1] Nazir Ahmad v. King Emperor; [A.I.R. 1936 Privy Council 253(2)]
[2] Ivo Agnelo Santimano Fernandes and Others v. State of Goa and
Another; [(2011) 11 SCC 506]
[3] Prem Nath Kapur v. National Fertilizers Corpn. of India Ltd.;
[(1996) 2 SCC 71]
-----------------------
14
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, Section 24 - All the acquisition proceedings pending comes under the new act if award was not passed - and if award passed before commencement of this Act old Act applies for all purposes - and if though award passed 5 years or more back itself but compensation was not paid and no possession was taken, then it can be considered as the acquisition proceedings are lapsed once for all after the commencement of this Act - if desires Fresh proceedings to be initiated afreshly as per new Act =
in view of Section 24(2) of The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, the subject land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (for short, ‘1894 Act’) have lapsed.
The
question for decision relates to true meaning of the expression:
“compensation has not been paid” occurring in Section 24(2) of the 2013
Act.
2013 Act puts in place entirely new regime for compulsory
acquisition of land and provides for new scheme for compensation, rehabilitation and resettlement to the affected families whose land has been acquired or proposed to be acquired or affected by such acquisition.
9. To turn, now, to the meaning of the expression “compensation
has not been paid” in Section 24(2) of the 2013 Act and its effect on the
subject acquisition, it is necessary to refer to Section 24 which reads 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 holding 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.”
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 Agnelo Santimano Fernandes[2], relying upon the earlier decision
in Prem Nath Kapur[3], 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.
20. 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.
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 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.
22. In view of the foregoing discussion, it is not necessary to
consider the correctness of the impugned judgment on merits.
23. The appeals fail and are dismissed with no order as to costs.
2014 ( January - Vol - 1) Judis.nic.in/ S.C./ file name =41177
R.M. LODHA, MADAN B. LOKUR, KURIAN JOSEPH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 877 OF 2014
(Arising out of SLP(C) No. 30283 of 2008)
Pune Municipal Corporation & Anr. … Appellants
Versus
Harakchand Misirimal Solanki & Ors. … Respondents
WITH
CIVIL APPEAL NO. 878 OF 2014
(Arising out of SLP(C) No. 30455 of 2008)
WITH
CIVIL APPEAL NO. 879 OF 2014
(Arising out of SLP(C) No. 30470 of 2008)
WITH
CIVIL APPEAL NO. 880 OF 2014
(Arising out of SLP(C) No. 30467 of 2008)
WITH
CIVIL APPEAL NO. 881 OF 2014
(Arising out of SLP(C) No. 30465 of 2008)
WITH
CIVIL APPEAL NO. 882 OF 2014
(Arising out of SLP(C) No. 30469 of 2008)
WITH
CIVIL APPEAL NO. 883 OF 2014
(Arising out of SLP(C) No. 30543 of 2008)
WITH
CIVIL APPEAL NO. 884 OF 2014
(Arising out of SLP(C) No. 30546 of 2008)
WITH
CIVIL APPEAL NO. 885 OF 2014
(Arising out of SLP(C) No. 30548 of 2008)
AND
CIVIL APPEAL NOS. 886-894 OF 2014
(Arising out of SLP(C) Nos. 15847-15855 of 2010)
JUDGMENT
R.M. LODHA, J.
Delay condoned in S.L.P. (C) Nos.15847-15855 of 2010. Leave
granted.
2. In these 18 appeals, by special leave, it is argued on behalf
of the respondents-landowners that
in view of Section 24(2) of The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, ‘2013 Act’) which has come into effect
on 01.01.2014, the subject land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (for short, ‘1894 Act’) have lapsed.
The
question for decision relates to true meaning of the expression:
“compensation has not been paid” occurring in Section 24(2) of the 2013
Act.
3. It may not be necessary at all to go into the legality and
correctness of the impugned judgment, if the subject land acquisition
proceedings are held to have lapsed. We, therefore, deal with this aspect
first.
4. The brief facts necessary for consideration of the above
question are these.
On 06.08.2002, the proposal of the Municipal
Commissioner, Pune Municipal Corporation (for short, “Corporation”) duly
approved by the Standing Committee for acquisition of lands admeasuring
43.94 acres for development of “Forest Garden” was sent to the Collector,
Pune.
The Collector sanctioned the proposal and on 20.02.2003 forwarded
the same to Special Land Acquisition Officer (15), Pune for further action.
On 30.09.2004, the notification under Section 4 of the 1894 Act was
published in the official gazette. Then notices under Section 4(1) were
served upon the landowners/interested persons. On 26.12.2005, the
declaration under Section 6 was published in the official gazette and on
02.02.2006, it was also published at the site and on the notice board of
the Office of Talaltti. Following the notices under Section 9, on
31.01.2008 the Special Land Acquisition Officer made the award under
Section 11 of the 1894 Act.
5. The landowners challenged the above acquisition proceedings
before the Bombay High Court in 9 writ petitions. Of them, 2 were filed
before making award and 7 after the award. The challenge to the
acquisition proceedings and the validity of the award was laid on diverse
grounds including
(i) absence of resolution of the General Body of the
Corporation;
(ii) non-compliance with the provisions of Section 5A,
(iii)
non-compliance with the provisions of Section 7, and
(iv) lapsing of
acquisition proceedings under Section 11A.
The High Court on consideration
of the arguments advanced before it by the parties has held that the
acquisition proceedings for the development of “Forest Garden” could not be
initiated by the Commissioner with the mere approval of the Standing
Committee without resolution of the General Body of the Corporation. The
acquisition proceedings were also held bad in law for non-compliance of
Section 7 and other statutory breaches. Inter alia, the High Court has
quashed the acquisition proceedings and gave certain directions including
restoration of possession.
6. It is argued on behalf of the landowners that by virtue of
Section 24(2) of the 2013 Act, the subject acquisition shall be deemed to have been lapsed because the award under Section 11 of the 1894 Act is made more than five years prior to the commencement of 2013 Act and no compensation has been paid to the owners nor the amount of compensation has
been deposited in the court by the Special Land Acquisition Officer.
7. On the other hand, on behalf of the Corporation and so also for
the Collector, it is argued that the award was made by the Special Land
Acquisition Officer on 31.01.2008 strictly in terms of 1894 Act and on the
very day the landowners were informed regarding the quantum of compensation
for their respective lands. Notices were also issued to the landowners to
reach the office of the Special Land Acquisition Officer and receive the
amount of compensation and since they neither received the compensation nor
any request came from them to make reference to the District Court under
Section 18, the compensation amounting to Rs.27 crores was
deposited in the government treasury. It is, thus, submitted that there was
no default on the part of the Special Land Acquisition Officer or the
government and, hence, the acquisition proceedings have not lapsed.
Moreover, reliance is also placed on Section 114 of the 2013 Act and it is
argued that the concluded land acquisition proceedings are not at all
affected by Section 24(2) and the only right that survives to the
landowners is to receive compensation.
8. 2013 Act puts in place entirely new regime for compulsory
acquisition of land and provides for new scheme for compensation, rehabilitation and resettlement to the affected families whose land has been acquired or proposed to be acquired or affected by such acquisition.
9. To turn, now, to the meaning of the expression “compensation
has not been paid” in Section 24(2) of the 2013 Act and its effect on the
subject acquisition, it is necessary to refer to Section 24 which reads 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 holding 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.”
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.
11. 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.
12. 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:
“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:
xxxx xxxx xxxx xxxx”
13. 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.
14. 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.
15. 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.
16. 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.
17. 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 (sub-section (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.
18. 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[1]) 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.
19. 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 Agnelo Santimano Fernandes[2], relying upon the earlier decision
in Prem Nath Kapur[3], 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.
20. 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.
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 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.
22. In view of the foregoing discussion, it is not necessary to
consider the correctness of the impugned judgment on merits.
23. The appeals fail and are dismissed with no order as to costs.
…..………………………….J.
(R.M. Lodha)
…..………………………….J.
(Madan B. Lokur)
…..………………………….J.
(Kurian Joseph)
New Delhi,
January 24, 2014.
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[1] Nazir Ahmad v. King Emperor; [A.I.R. 1936 Privy Council 253(2)]
[2] Ivo Agnelo Santimano Fernandes and Others v. State of Goa and
Another; [(2011) 11 SCC 506]
[3] Prem Nath Kapur v. National Fertilizers Corpn. of India Ltd.;
[(1996) 2 SCC 71]
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