The title of this article may sound critical because, in effect, the final interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) can only come to the rescue of a handful.

 

The eminent domain’s doctrine prescribes the power to the sovereign to dispossess a person of his property by way of compulsory acquisition for the larger interest of the State without the owner’s consent. In 1952, the Supreme Court, while laying down the broad contours of the eminent domain, held that:

 

  1.  … Shorn of all its incidents, the simple definition of the power to acquire compulsorily or of the term “eminent domain” is the power of the sovereign to take property for public use without the owner’s consent. The meaning of the power in its irreducible terms is, (a) power to take; (b) without the owner’s consent; and (c) for public use. The concept of the public use has been inextricably related to an appropriate exercise of the power and is considered essential in any statement of its meaning. Payment of compensation, though not an essential ingredient of the connotation of the term, is an essential element of the valid exercise of such power. Courts have defined “eminent domain” so as to include this universal limitation as an essential constituent of its meaning. Authority is universal in support of the amplified definition of “eminent domain” as the power of the sovereign to take property for public use without the owner’s consent upon making just compensation.[1]

 

In its original form, the Constitution of India guaranteed under Article 19(1)(f), the Indian citizens fundamental right to acquire, hold or dispose of the property. However, this fundamental right was subject to reasonable restrictions by the State either in the interests of the general public or for protecting the interests of any Scheduled Tribe. Article 31 made the right to property stronger as it provided that any acquisition of property by the State must only be upon enactment of law, for a public purpose and upon payment of compensation. Section 299 of the Government of India Act, 1935 provided for the protection of the property right against expropriation without proper compensation and also against procurement of land for any use other than for public purpose. Articles 19(1)(f) and 31 were deleted by the Constitution (Fortyfourth Amendment) Act, 1978 from Part III of the Indian Constitution. Instead, it introduced a new provision, Article 300-A, which provided that “no person shall be deprived of his property save by authority of law”.  By the forty-fourth amendment, right to property lost its “fundamental right” status and obtained the status of only a constitutional right, which meant that it could not be challenged directly before the Supreme Court under Article 32.

 

The assessment of market value for the acquisition of land is a long battle for a landowner. In many cases, the finality of what a landowner is entitled to for acquiring his land remains pending for decades barring a whole generation to get its due. The increasing pressure made land pricier, and forcible acquisitions have started causing grave injustice to the landowners. With industrialisation and growth in the residential sectors for the ever-increasing population, the land became more scarce and costlier. The inequity in the quantum of compensation started to look immense, and people started to protest against the acquisitions. The land acquisition seems a civil death for some, as what was offered was meagre compensation and no rehabilitation or resettlement, inflicting the loss to their livelihoods.

 

Then came the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Section 24 in the 2013 Act was enacted to undo the historical wrong done after the British rule by the Land Acquisition Act, 1894 (hereinafter referred to as “1894 Act”). The lawmakers could not bring the new legislation to acquire land until 2013 which was demanded by the changing scenario and needs. Section 24 of the 2013 Act contemplated the following situations:

 

(i) In case no award had been made on the date of the commencement of the 2013 Act i.e. 1-1-2014, then all provisions for determination of compensation in the 2013 Act shall apply.

(ii) In case the award has been passed, then the 2013 Act will have no application.

(iii) In case of land acquired 5 years or more prior to 1-1-2014, where physical possession has not been taken, or compensation has not been paid the proceedings shall be deemed to have lapsed with the Government having the power to acquire afresh.

(iv) In case the award has been made, and compensation in respect of the majority of land holdings has not been deposited, all beneficiaries will be entitled to compensation under the 2013 Act.

 

So, in a literal interpretation of Section 24, who gets the redressal from the historical wrong done by the 1894 Act?

 

Questions arose regarding compensation as to what constitutes a proper payment and whether an amount deposited in the court or treasury as the 1894 Act envisaged would be considered sine qua non to a payment in the beneficiaries’ bank account except additional interest as per Section 31 of the 1894 Act. The first view that came from the Supreme Court was that payment in case the compensation is lying in the treasury, the same will not constitute payment. The other dispute arose as to what constitutes possession, whether it is an entry in the inquest report/memorandum (rapat roznamcha) or the actual physical possession. There was no dispute to the post-position of law that in case no award was passed on 1-1-2014 then the compensation has to be determined as per the new Act.

 

But barring these technicalities beyond the comprehension of a common man, Section 24 was intended to be a saviour to undo the wrong perpetrated at the government’s hands in payment of compensation. To put in common parlance, it meant that the land that is not utilised for the public purpose for which it was acquired, in case it is vacant for the last few years, it will vest back in the original owner by lapsing of the acquisition proceedings or if the Government has not paid the compensation then it will meet the same fate, in both these situations it can be acquired afresh.

 

“There is no question of ‘come and get’ the compensation while compulsorily acquiring the land; the approach required under the law is ‘go and give’ ” said the Supreme Court in 2016.[2]

 

The interpretation given by the Constitution Bench of the Supreme Court on Section 24 in Indore Development Authority v. Manoharlal[3] is a narrow view. The judgment closed all such windows as it held on the following six counts:

 

(1) Firstly, the word “or” used between possession or compensation in Section 24(2) will be read as “and”, in other words, the acquisition will only lapse in case possession has not been taken and compensation has not been paid.

(2) Secondly, the proviso that in case compensation for the majority of land holdings has not been paid will only be read in a situation where there is no lapsing as per Section 24(2); therefore, it cannot be read with Section 24(1).

(3) Thirdly, the word “paid” shall include a deposit of compensation made in a court or treasury.

(4) Fourthly, the mode of taking possession under the 1894 Act and as contemplated under Section 24(2) shall be by drawing of inquest report/memorandum.

(5) Fifthly, the period of subsistence of interim orders passed by the court has to be excluded in the computation of five years as per Section 24(2).

(6) Sixthly, Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013 i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of the mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury.

 

The redressal promised by Section 24 faded away.

“The final cause of law”, writes Cardozo, “is the welfare of society”. So much for the formalist idea, whose scientistic provenance and pretensions are evident, of law as a body of immutable principles. Cardozo does not mean, however, that Judges “are free to substitute their own ideas of reason and justice for those of the men and women whom they serve. Their standard must be an objective, one” — but objective in a pragmatic sense, which is not the sense of correspondence with an external reality. “In such matters, the thing that counts is not what I believe to be right. It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right.”[4]

 

To conclude, Section 24 looked like it brought life to the rights of those whose land was compulsorily acquired by the Government, but the land has not been put to use for the purpose it was acquired or achieve the object of acquisition but, the interpretation is otherwise. Section 24 also sought to undo the wrong in payment of compensation since some persons were deprived of the payment, but the fact that it has been held that payment in treasury will be considered as “paid” has closed the door for the same. So, in essence, the interpretation is that even if one of the conditions, that is, taking over of possession “or” the payment of compensation is fulfilled then the benefit of Section 24(2) will not accrue to a person, the word “or” used in Section 24(2) has to be read as “and”.

 

Advocate-on-Record, Supreme Court and former Additional Advocate General, Haryana, e-mail: siddharth.batra@satramdass.com.

[1] State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 : 1952 SCR 889.

[2] Aligarh Development Authority v. Megh Singh, (2016) 12 SCC 504.

[3] (2020) 8 SCC 129.

[4] B. Cardozo, The Nature of the Judicial Process.

14 comments

  • With stay order is there also no officer is giving repect to court order and take position with out land owner concern.

  • Allahabad High Court
    Ashok Kumar vs State Of U.P. Thru. Secy., Housing … on 8 May, 2017
    Bench: Amreshwar Pratap Sahi, Sanjay Harkauli
    HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
    Reserved A.F.R.
    Court No. – 1
    Case :- LAND ACQUISITION No. – 1818 of 2017
    Petitioner :- Ashok Kumar
    Respondent :- State Of U.P. Thru. Secy., Housing & Urban Planning & 3 Ors.
    Counsel for Petitioner :- Kshemendra Shukla
    Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Mukund Tiwari
    Hon’ble Amreshwar Pratap Sahi,J.
    Hon’ble Sanjay Harkauli,J.
    1. This writ petition prays for a mandamus that the proceedings for execution for Plot No.224, measuring 3 bighas of Khata No.77, Village – Aurdaunamau, Tehsil – Sadar, District – Lucknow be declared to have been lapsed in terms of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the 2013 Act’).
    2. The ground taken is that since on the exchange of affidavits it is evident that only part of the advance compensation had been paid and 2/3rd of the compensation has now been deposited on 2nd of February, 2017 in the Court of the learned District Judge, Lucknow under Section 31(2) of the 1894 Act, then in that event the judgments of the Hon’ble Supreme Court in the case of Delhi Development Authority Vs. Sukhbir Singh & Ors. – AIR 2016 (8) SC 4275 read with the ratio of the Division Bench judgment of this Court in the case of Bimlendra Mohan Pratap Mishra & Anr. Vs. State of U.P. & Ors. – Writ Petition No.170 (L/A) of 2014 decided on 14.02.2017 are clearly attracted. Consequently, the writ petition deserves to be allowed with a suitable direction in this regard.
    3. It may be clarified at the very outset that this writ petition is only by one Ashok Kumar contending that he was entitled to receive the entire compensation of the said land and therefore, it is he who can now successfully invoke the provisions of Section 24(2) of the 2013 Act.
    4. The facts shorn of unnecessary details are that the land in dispute became subject matter of acquisition under the Land Acquisition Act, 1894 for being handed over to the Lucknow Development Authority (L.D.A.) vide notifications under Section – 4 & Section – 6 of the said Act dated 05.09.2000 & 16.02.2001 respectively.
    5. According to the counter affidavit filed on behalf of the State, the possession of the land was taken and handed over to the Lucknow Development Authority, the respondent no.4 herein, on 14.05.2002 which fact is however, been contested by the petitioner by filing a rejoinder affidavit. Nonetheless after the issuance of the notification the petitioner filed his objection on 26th of September, 2001 under Section 9(2) of the 1894 Act and a supporting affidavit was filed in relation thereto on 28th of February, 2002. According to the respondent-State, the petitioner had only 1/3rd share and therefore, he received advance compensation to the tune of Rs.2,17,800/- as per the rates prescribed then being Rs.10/- per sq. feet. Even though the petitioner has described the same to be a 50% amount in Para-4 of the writ petition, yet in the same paragraph the petitioner has admitted the same to be 80% of the amount. The petitioner had already filed his objections and was claiming higher compensation and ultimately the proposed award was put in abeyance as the tenure holders of the area including the petitioner entered into a compromise on 08th of January, 2004 to receive compensation at the rate of Rs. 23/- per sq. feet. The said compromise has been appended as Annexure-1 to the supplementary affidavit filed by the petitioner on 17.02.2017. The said settlement in Para-9 clearly stipulates that the settlement at Rs. 23/- per sq. feet would include solatium, additional compensation etc.., and no other compensation would be payable nor any claim would be put forward by the tenure holders in this regard in future.
    6. The same paragraph also stipulates that the entire amount payable shall be disbursed by the Addl. District Magistrate (Land Acquisition) through a camp within three months and in the event there is any dispute about title or ownership then the amount should be deposited in the competent Court. In the event any amount remains due after 30th of June, 2004, then interest would be payable in accordance with the land acquisition rules.
    7. In terms of the aforesaid settlement, the revised amount that became payable to the petitioner has been calculated to the tune of Rs. 6,26,175/-.
    8. The State and the Lucknow Development Authority in their counter affidavits have come up with a case that since the exclusive claim of the petitioner to receive the entire compensation became disputed, the compensation was not disbursed to the petitioner, as the real brothers of the petitioner namely Rajendra Kumar and Babu Lal filed their objections on 2nd of February, 2006 contending that the petitioner was entitled only to 1/3rd share and hence, the remaining amount of the compensation to be paid with respect to the extent of the share of the petitioner, was deposited under Section 31(2) of the 1894 Act in the Court of the learned District Judge, Lucknow which admittedly was done on 2nd of February, 2017.
    9. It is on the strength of these facts that Shri Kshemendra Shukla, learned counsel for the petitioner, contends that even assuming for the sake of arguments that a dispute had been raised, the fact that the compensation amount to the extent of the deficit indicated in the counter affidavit itself was deposited on 2nd of February, 2017 and in the absence of any valid deposit as admitted, the ratio of the judgments referred to hereinabove are clearly attracted and the proceedings of acquisition will be deemed to have lapsed. He further submits that as a matter of fact the two real brothers of the petitioner had raised an objection but they did not turn up after 2004 and this dispute was in respect of the one bigha of land which is 1/3rd exclusive share of the petitioner.
    Ashok Kumar vs State Of U.P. Thru. Secy., Housing … on 8 May,
    My question agreement is clearly broken now new agreement is to made or not as we lost case in Supreme Court as for lapes
    is concerned

  • Sir in uttar pradesh there is uttar pradesh karar niyamawali 1997 under which land is to be acquired and compensation is to be given my question is if in this agreement there is a clause which very clearly mention payment to be made in three months and if in duration if there is any dispute who would get then that must be deposited in court so if payment is not made in three months and after two years some dispute arises as per government notice issued and case disposed off by ADM in year 2005 and award was made in 2007 and but when we approach high court in year 2017 then they deposited compensation in court saying there is dispute so we deposited my question there is clearly agreement is broken so now new agreement is to be made or not as per legal view as above acquisition was done in 2000 2001 in lucknow ad sheedpeth gomti nagar vistar .please do answer

  • I completely concur with your view. Sec.24 was to bring about some solace, however, Constitutional bench in Indore Development Authority’s Judgment has completely narrowed it down. Day in day out I see land owners suffering more and more. In one of the cases I am handling, physical possesion is though with the owner, possession receipt was executed long back. Award is passed long back. No compensation is given at all. HC says execute the award. That too in terms of old Act where the amount awarded is a peanut. The land is not put to any intended use. Political bigwigs are usurping land so called acquired by local authority (which did not pay a farthing in the name of having no funds for compensation) getting it alloted to their institutions free of cost. Its no doubt, not civil death, but actual death of the owner.

  • My Land was acquired by NHAI vide Notification dt 30-4-03 for Forming of Bye Pass Road and road was completed in 2007. The Land was classified in the Notification as Government and we objected to this to Special DRO with Documentary Poof for payment of Full Land Cost to SIDCO(Govt Dept) for starting an Industry. The Dist. Collector had asked the Revenue Divisional Officer Order in Aug.2004 to make a thorough enquiry into the mqtter. We were not called for an enquiry and orders for Compensation was passed in February 2005 for Compensation but our Survey No was not included in the List for Compensation. After Lots of Letters by SIDCO orders for Compensation were released in by DRO in Oct 2014 and payment made to SIDCO in Sept 2015 and then passed onto us. As per the above are we elegible for Compensation under LARR Act 2013.

  • My quarry —

    I need to know that the impact / applicability of order / judgement of 319 pages , ( passed on 06-03-2020 by the five judges constitution bench
    ( Justice Arun Mishra and ors. ) of Hon’ble Supreme Court of India in land acquisition matters under / regarding sec. 24 (2) of new land act 2013 ) , is retroactive or prospective , means the above said judgement is applicable or not on previously decided matters (Past Matters) by the double bench of Hon’ble Supreme Court of India in the year 2016 – 2017 .

    In some matters even the Review Petition filed against the dismissal of SLPs / CAs was also dismissed by the Hon’ble Supreme Court and in some matters the Review Petition is not filed against the dismissal of SLPs/ CAs , till now , by the concerned / involved Government Departments.

    Please tell about the law position in this regard .

    Thanks .

    V. Kumar , 9958124581

  • My ancestor land acquired for SUNIYOJIT INDUSTRIAL DEVELOPMENT under LAND ACQUISITION ACT 1894 in The year 1976 vide Notification u/s 4/17 was dated 01-06;1976 , u/s 6/17 was dated 16-09-1976 no 80% paid by S.L.A.O Possession taken over on 28-10-1976 Award declared by S. L. A. O on 29-04-1978 (no fund for payment of compensation Available at the time of Award) Payment made on 30-09-1979 after one year five months of declaration of Award. LAND USE CHANGE BY BENEFICIARS WITHOUT PRIOR PERMISSION OF HIGHER AUTHORITIES
    OLTAL ACQUIRE LAND IN THE AWARD USE AS RESIDANCIAL SECTORS. NOT EVEN A SINGLE INCH USED FOR INDUSTRIAL DDEVELOPMENT CAN I/WE TAKE BENEFITS OF SEC. 24 OF RIGHT TO FAIR —————ACT 2013 FOR MY ACQUIRE LAND INSTAND OF L.A.ACT 1894

  • My ancestor land acquired for SUNIYOJIT INDUSTRIAL DEVELOPMENT IN The year 1976 vide Notification u/s 4/17 dated 01-06;1976 , u/s 6/17 was dated 16-09-1976 no 80% paid by S.L.A.O Possession taken over on 28-10-1976 Award declared by S. L. A. O on 29-04-1979 (no fund for payment of compensation Available at the time of Award) Payment made on 30-09-1979
    (TOTAL ACQUIRE LAND IN THE AWARD USE AS RESIDANCIAL SECTORS. NOT EVEN A SINGLE INCH USED FOR INDUSTRIAL DEVELOPMENT) .

    CAN I/WE TAKE BENEFITS OF SEC. 24 OF RIGHT TO FAIR —————ACT 2013 FOR MY ACQUIRE LAND INSTAND OF L.A.ACT 1894

  • My quarry —

    I need to know that the impact / applicability of order / judgement of 319 pages , ( passed on 06-03-2020 by the five judges constitution bench
    ( Justice Arun Mishra and ors. ) of Hon’ble Supreme Court of India in land acquisition matters under / regarding sec. 24 (2) of new land act 2013 ) , is it’s impact is , retroactive or prospective , means the above said judgement is applicable or not on previously decided matters (Past Matters) by the double bench of Hon’ble Supreme Court of India in the year 2016 – 2017 .

    In some matters even the Review Petition filed against the dismissal of SLPs / CAs was also dismissed by the Hon’ble Supreme Court and in some matters the Review Petition is not filed against the dismissal of SLPs/ CAs , till now , by the concerned / involved Government Departments.

    Please tell about the law position in this regard .

    Thanks .

    V. Kumar , 9958124581

  • My lands and comm bldg wàs ac

  • In my case award has been passed in the month of December 2013 but majority has not been paid till commencement of ACT 2013. But lateron paid in the Month of March 2014 then whether Compensation would be determine as per Old Act or New Act. According to 24(1)(b) Compensation would determine as per Old Act which is held in Indore Dev. Case.

  • I request government of Telangana to please pay the full compensation to the effected people because they are losing their hard earned property they are loosing base where they were living since birth iam sorry to say that ghmc spends lots of money for unnecessary reasons I think this is 100 % genuine reason to spend money by giving full compensation for those who are giving their houses their land and heard earned properties please don’t kill someone for others life and please live and let us live and once again iam sorry if I wrote anything wrong thanks.

  • Matter belongs to acquisition of land with respect to Lucknow airport. There is stay order on section 4 and 6 from Allahabad High Court (Lucknow Bench). Papers shown by sdm indicate farmers got compensation for crops. Superior propriters got compensation for land. Physical possession of land is with farmers. Kindly advise

  • Commendable study on development in the relevant field. Thanks, dear Author.

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