Land Acquisition

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Rohinton Fali Nariman and B.R. Gavai, JJ., settled a decade-old land-acquisition dispute by directing NOIDA (New Okhla Industrial Development Authority) to pay compensation to the aggrieved land-owners who were dispossessed of their land by the authority without any land acquisition proceeding and without the authority of law.

Background

The Petitioner was the lawful and absolute owner and in possession of total land admeasuring 0.44325 hectares (4432.5 sq. meters) in Khasra No. 135 and 138 in Gautam Budh Nagar. In the year 2010, he was wrongfully and illegally dispossessed from his land by the Respondent without following due process of law and without any land acquisition proceedings. Being aggrieved, the petitioner approached the High Court of Judicature of Allahabad and later on to the Supreme Court seeking demarcation and peaceful vacant possession of the Petitioner’s land located inside the Dalit Prerna Sthal developed by the Respondent. The said petition was joined by a similarly placed and aggrieved intervener-petitioner 2, who had also lost his land admeasuring 1.32975 hectares (13,297.5 sq. meters) in Khasa No. 135 and 138 Gautam Budh Nagar, which was wrongfully taken over by the Respondent.

To unravel the issue, the Supreme Court had appointed Mr. Gaurav Agrawal as Advocate Commissioner to make a site inspection and produce a map stating who was in possession of what portion. Following the report filed by Mr. Gaurav Agrawal, the Bench had directed the ADM, Gautam Budh Nagar to furnish a report of demarcation. The report filed by the ADM made it clear that the parties’ lands had never been acquired and further revealed that NOIDA was indeed in possession of lands in excess of what was acquired under various notifications.

Final Order of the Court

After considering the ADM’s report, the Bench had directed the NOIDA to allot the petitioners appropriate land elsewhere admeasuring the extent to which the petitioner’s and the applicant’s land was taken over by them without authority of law. However, the matter was further contested by the NOIDA.

It was in the abovementioned backdrop that the Bench had appointed a valuer to conduct a valuation exercise on the disputed land and determine the market value as it was in the year of their dispossession; which was determined and even reiterated on being objected by the NOIDA at Rs. 20,000/- per sq. meter.

Consequently, while disposing of the matter, the Bench had awarded compensation to the petitioners at the rate determined by the valuer. The NOIDA was directed to pay the aforesaid sum to the petitioner and the applicant within a period of eight weeks. Though, the said final order was assailed by NOIDA in a review petition but the same was dismissed.

Contempt Petition

The instant contempt petition was filed to highlight wilful non-compliance of the above mentioned final order by the contemnor CEO of NOIDA by sleeping over repeated claim applications made by the petitioners seeking release of the awarded compensation.

In view of the above, the Bench directed NOIDA to release the awarded compensation (Approx 36 crores) in favour of petitioners.[Nayan Tara v. Ritu Maheshwari, Contempt Pet. (C) No. 316/2021, decided on 30-07-201]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For Petitioner(s): Mr. Vijay Hansaria, Sr. Adv.
Mr. Sanjay Sarin, Adv.
Mr. Mohit Paul, AOR
Mr. Pratyush Miglani, Adv.
Mr. Nikhil Verma, Adv.

Ms. Sunaina Phul, Adv.
For Respondent(s): Mr. Ravindra Kumar, AOR
Mr. Kamlendra Mishra, AOR

Mr. Gaurav Agrawal, AOR
Mr. Mohit Paul, AOR
Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has upheld the validity of the Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 and has found it to be consistent with and within the four corners of Article 254 of the Constitution of India.

Legislative Trajectory

  • The State of Tamil Nadu carved out three public purposes for which a law, different from the Land Acquisition Act, 1894, was required to be enacted. The Tamil Nadu legislative assembly, hence, enacted the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and Tamil Nadu Highways Act, 2001.
  • The Right   to   Fair   Compensation   and   Transparency   in   Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force after the 1894 Act was found to be inadequate on certain aspects.
  • The State of Tamil Nadu also sought to protect and reserve its three State enactments — and hence, a State amendment, namely, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Act whereby Section 105-A came to be inserted in the 2013 Act.
  • The 2014 Act, along with the 1997 Act and 2001 Act, came to be challenged before the High Court of Judicature at Madras, primarily on twin grounds of repugnancy with the 2013 Act and violation of Article 14 due to manifest arbitrariness and discrimination in the operation of the State Acts.
  • The Madras High Court vide judgment and order dated 03.07.2019 rejected the challenge as regards the violation of Article 14 and non-application of mind by the President while granting assent. On the point of repugnancy, however, it found that the State enactments became repugnant to the 2013 Act and thus void, on 27.09.2013 itself (date of Presidential assent to the 2013 Act). Resultantly, subsequent enactment of 2014 Act w.e.f. 01.01.2014 would not go on to reactivate the three enactments. The High Court held that the State enactments could only be revived through re-enactment by the Legislative Assembly followed by fresh assent of the President in accordance with Article 254 of the Constitution.
  • The State Government then made an attempt to revive the three enactments held to be void and unconstitutional by the High Court by using a legislative tool. The Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 was then enacted to revive the operation of the 1978, 1997 and 2001 Acts. Notably, the 2019 Act was applied retrospectively from 09.2013 with the objective to validate all pending acquisitions on and after that date under the State enactments, otherwise quashed by the High Court.

Analysis

Legislative competence to pass a retrospective validating Act:

(i) The legislature must be having power over the subject matter as also competence to make a validating law.

(ii) There must be a clear validating clause coupled with substantive change in the earlier position.

(iii) The retrospective operation must be specified clearly.

(iv) There can be no express or declaratory overruling of the judgment of the Court.

(v) It is permissible for the legislature to make a decision of the Court ineffective by removing the material basis of the decision in the manner that the Court would not have arrived at the same   conclusion had the corrected/modified position prevailed at the time of rendering the said earlier decision.

Why was the 2019 Act enacted?

The 2019 Act is a conscious attempt by the State legislature to bring four material aspects of land acquisition under the three State enactments at par with the 2013 Act i.e., compensation, rehabilitation, resettlement and infrastructure facilities.

While enacting the 2019 Act, the State legislature neither individually placed the 1997 Act and 2001 Act in the form of fresh bills before the House, nor introduced amending Acts for the said three enactments in order to incorporate the provisions of compensation, resettlement and rehabilitation. Instead, it framed one bill that sought to achieve four purposes –

  1. amend the State enactments to provide for different provisions of compensation to bring them in line with the law made by the Parliament;
  2. add fresh provisions relating to resettlement, rehabilitation and infrastructure amenities at par with the 2013 Act;
  3. revive the enactments declared to be repugnant and void by the High Court and validate them after passing this bill in the assembly and placing it before the President; and
  4. restore the validity of all past acquisitions under the State legislations, quashed by the High Court by making the Act operative from a retrospective date.

The legislative intent behind the 2019 Act and more particularly, the assent accorded thereto by the Governor and the President of India for overcoming repugnancy with the Act made by   the   Parliament, was to revive the operation of the State enactments declared as null and void being unconstitutional and repugnant to the Act made by the Parliament and to amend the same, as well as, validate the actions already taken by the State authorities thereunder.

Failure to import all provisions of the law made by the Parliament – Effect of

“To say that failure to import all provisions of the law made by the Parliament in the State enactments results into non-removal of defects pointed by the High Court, is nothing but a palpable misreading of the judgment of the High Court.”

Notably, the judgment of the High Court nowhere points out the exact provisions from the State enactments which are repugnant to the law made by the Parliament. The only defect pointed out by the High Court was the impermissibility of Section 105-A (coming into effect from 01.01.2014), as a tool for reviving the State enactments once rendered repugnant (on 27.09.2013) due to law made by the Parliament. The State has since been advised to accept that defect pointed out by the High Court and has moved on from that thought process by devising a new legislative tool for validating the State enactments in line with Article 254(2).

“Had the legislature re-enacted Section 105-A even after the declaration of invalidity by the High Court, it would have been a case of non-removal of defect pointed out by the High Court. In fact, that would have been declaratory overruling of the judgment of the Court by the legislature, which is simply impermissible.”

The effect of the 2019 Act is to change the law retrospectively and not to overrule the judgment of the Court. Hence, there is no irreconcilability between the High Court judgment and the 2019 Act.

“The 2019 Act is an evolution, not reiteration of the earlier position much less regression thereof.”

The actual repugnancy not pointed out to the President while obtaining assent – Effect of

After duly specifying the existence of distinctive provisions in various enactments, particularly relating to compensation, resettlement, rehabilitation and infrastructural facilities, the letter clearly states that some provisions of the 2019 Act could be said to be repugnant to the 2013 Act and thus, the Act is being placed for consideration of the President as per Article 254.

As per the law laid down in Kaiser­I­Hind Pvt. Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182, so far the assent under Article 254 is concerned, mere supply of copy of the bill may obviate the need to pin¬point provisions thereunder but the law made by the Parliament which is sought to give way to the State law must be clearly specified.

In the present case, the letter seeking assent clearly,

  • demonstrated that the three State enactments were made for the purpose of speedy acquisitions.
  • stated that the law made by the Parliament rendered the three enactments repugnant and out of operation owing to the Madras High Court judgment.
  • stated that the State has considerable interest, having a strong bearing on the public exchequer, in saving and reviving the three State enactments.
  • specified the law made by the Parliament, which could be coming in the way of the State enactments for due consideration by the President.

Hence, the communication was in compliance with the mandate of Article 254 as well as with the decision of this Court in Kaiser-I-Hind Pvt. Ltd.

[G. Mohan Rao v. State of Tamil Nadu, 2021 SCC OnLine SC 440, decided on 29.06.2021]

*Judgment by: Justice AM Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Appearances before the Court by:

For Petitioners: Senior Advocate P. Wilson and Advocate Suhrith Parthasarthy

For State: K.K. Venugopal, Attorney General for India

For Respondents: Senior Advocate Aman Sinha

Case BriefsSupreme Court

Supreme Court: In an interesting case regarding land acquisition by government of Assam for setting up a plastic park, the Division Bench of S. Abdul Nazeer* and Sanjiv Khanna had held,

“Once the award has been approved, compensation has been paid and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of Land Acquisition Act, 1894.”

Assam Industrial Development Corporation Limited (AIDC) had filed this appeal against the order of Guwahati High Court for the determination of question, whether an award in respect of the first respondent’s land was approved by the Government on 05-03-2010 or the approval was for the estimate only?

Initial Proceedings for Acquisition

In order to set up a plastic park, the Government of Assam decided to acquire a portion of land belonging to the respondent situated at Gillapukri Tea Estate. The Government, in exercise of the power under Section 4 of the Land Acquisition Act, 1894 issued a notification dated 04-08-2008, expressing its intention to acquire 1,166 biggas, 1katha, 14 lessas of land. The Deputy Commissioner and Collector, addressed a letter dated 30-01-2010 to the Government to seek approval of the award and the land acquisition to which the government addressed a letter dated 05-03-2010 to the Deputy Commissioner whereby approval, as sought was granted.

Initiation of Fresh Proceedings

The respondent contended that pursuant to the letter dated 05-03-2010 only the land acquisition estimate was approved and not the award. Therefore, the respondent contended, it led to lapsing of the proceedings and initiation of fresh acquisition proceedings on 21-07-2012 which culminated in approval of the award for the first time in 2014. On 04-01-2014, a fresh award was passed and the respondent argued that since the award under the fresh proceedings was approved and made after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, he was entitled for compensation in terms of Section 24(1) (a) of the 2013 Act.

Analysis by Court

Award was approved by the government on 05-03-2010 and that the same had been paid within two years of declaration. Pursuant to the award, possession of the land was taken from the respondent by the acquiring authority and the land was then handed over to the appellant. The Bench observed that entire compensation had been paid to the respondent and as contended by government,

Need for an additional award arose only because some of the land owners of the land initially proposed to be acquired were left out in the original award that was approved on 05-03-2010.

Noticing that not only did the respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05-05-2010 u/s 18 of the L.A. Act the Bench said, letters dated 21-07-2012 and 06-01-2014 could not have the effect of re-acquiring the land in question since it already stood vested in the State Government. A combined reading of letter dated 05-03-2010 with the preceding letter dated 30-01-2010 and the subsequent conduct of the parties, including the respondent, made it evident that the award stood approved on the said date.

In D. Hanumanth SA v. State of Karnataka, (2010) 10 SCC 656 , it was held, “if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land”. Hence, considering the subsequent actions of the parties, viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation and the fact that the plastic project for which the subject Land Acquisition was initiated had already been developed on the acquired land, the Bench held,

“Once the land stood vested in the State, it could not have been acquired again. Therefore, any issuance of fresh notification under Section 4 and 6 or even preparing of a fresh award by the State Government in respect of the first respondent’s land would be infructuous.”

In view of the above, the impugned order of the High Court was set aside.
[Assam Industrial Development Corp. Ltd. v. Gillapukri Tea Co. Ltd., 2021 SCC OnLine SC 44, decided on 28-01-2021]

Kamini Sharma, Editorial Assistant has put this story together 

*Justice SA Nazeer has penned this judgment 

Know Thy Judge | Justice S. Abdul Nazeer

Case BriefsHigh Courts

Kerala High Court: The Division Bench of C. T. Ravikumar and K. Haripal, JJ., partly allowed the instant petition filed under Section 37 of Arbitration and Conciliation Act, 1996.

The grievances of the appellant were that, 0.0336 hectares of land owned and possessed by him was acquired by the Nation Highway Authority (NHA) for the purpose of developing National Highway-47. The Special Land Acquisition Officer had fixed the compensation at the rate of Rs 2,14,000 per Are, thereby the appellant was awarded total compensation of Rs 7,19,040. Aggrieved by the same, the appellant filed an arbitration petition under Section 3(c) (5) of the National Highways Act seeking enhancement of compensation.

The District Collector being the Arbitrator, enhanced the land value to Rs 5,88,000 per Are, i.e. at Rs 2,38,057 per cent. The Arbitrator, after considering the report of the District level Arbitral Committee appointed under Section 27(1)(a) of the Act, enhanced the compensation and fixed it at Rs 12,56,640.

The appellant again challenged the award before the District Court. The Court, while observing the constraints under Section 34 of the Act, stated that,

An award of the Arbitrator could be challenged only on the grounds enumerated in Section 34 of the Act and it could not be set aside merely on the ground that compensation awarded was insufficient.

The Bench though concurred with the findings of lower Court, observed that in arbitral award no amount was paid towards solatium or interest thereon. Reliance was placed by the Court on the judgment of Supreme Court in Union of India v. Tarsem Singh, (2019) 9 SCC 304, wherein, the Court had declared that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of proviso to Section 28 would apply to acquisitions made under the National Highways Act and had held Section 3J of the National Highways Act violative of Article 14 of the Constitution and declared it unconstitutional.

Thus, the Court while relying on Tarsem Singh case said that the verdict of Supreme Court in the said case had become the law of the land under Article 141 of the Constitution. Therefore, even in the absence of specific plea or proof, the appellant would be entitled to get solatium and interest on solatium as provided in Section 23(1A) and (2) and interest in terms of proviso to Section 28 of the Land Acquisition Act. [V.M. Mathew v. National Highway Authority of India,  2021 SCC OnLine Ker 387, decided on 25-01-2021]

Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a case where the Union of India was sitting over certain lands since 33 years without any authority, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ directed the Union of India to hand back possession of the suit lands to the appellants, within three months.

“33 years (based upon cessation of the Union’s legal possession) is a long enough time, even in India, to be kept away from one’s property.”

Background of the Case

  • Requisitioning and Acquisition of Immovable properties Act, 1952 was brought into force on 15.03.1952 with the object to enable the Union to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose. By Section 1(3), the Requisitioning Act was to be in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose; Section 7 provided the procedure to requisition (or acquire) lands. It also spelt-out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one.
  • On 27.02.1958, the Requisitioning Act was amended and the period of its operation extended. In the meanwhile, the Defence of India Act, 1962 (DIA) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act.
  • The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in 1963.
  • By Act 48 of 1963, Section 1(3) of the Requisitioning Act was amended, and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile, the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended, incorporating Section 25, which enacted that the immovable property requisitioned under the DIA, which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA.
  • The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987.
  • Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. The impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years.

Analysis

Legal effect of requisitioning immovable property

Temporarily- i.e. for the period the requisition order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through authority of law, in keeping with fair procedure, the law provides for payment of compensation in accordance with predetermined principles.

“Yet, the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring it, is initiated.”

Right to Property

Stating that it is not open to the state: in any of its forms (executive, state agencies, or legislature) to claim that the law – or the constitution can be ignored, or complied at its convenience, the Court noticed that although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. Though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

“The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked- they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s property (bereft of lawful sanction)– whatever be the pretext, is no less than condoning lawlessness.”

It was further stated that any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose, at any future time- aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Discussion on facts

Union’s assertion that it had acquired at least some parts of the suit lands was examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union.

“The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. These facts paint a stark, even sordid picture.”

The Court, hence, held that the impugned judgment of the Karnataka High Court committed an error in refusing relief to the appellants.

Directions

  • The Union of India is directed to hand back possession of the suit lands to the appellants, within three months.
  • It is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value, based on the different five- year periods for the last 20 years. Such a claim shall be referred to arbitration, within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months.
  • The appellants shall be paid costs, quantified at ₹ 75,000/-.

[BK Ravichandra v. Union of India, 2020 SCC OnLine SC 950, decided on 24.11.2020]

*Justice S. Ravindra Bhat has penned this judgment

For Appellant: Senior Advocate Mohan Parasaran

For Respondent: Additional Solicitor General K.M. Natraj

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): V.K. Jain (Presiding Member), held that homebuyers cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid

Developer Company was selected by Government of Uttar Pradesh for the development of a township in Greater Noida in the name of ‘Sushant-Megapolis’.

No Time Frame

Large number of complainants booked residential plots and executed agreements with the OP. In the agreement, no time frame for delivering possession of the plots to the allottees was incorporated but the complainants were verbally told that the possession would be handed over within 36 months from the execution of the agreement.

Case of the Complainants

Complainants stated that the township has not been developed, hence no possession was offered to them along with other allottees.

Class Action

Therefore complainants approached the commission by way of class action under Section 12(1)(c) of the Consumer Protection Act seeking a refund of the amount paid by the allottees along with compensation.

Vide an order in 2017, Commission granted the permission to the complainants to institute this complaint on behalf of all the allotted who wanted a refund of the amount paid to the OP. Hence, public notice in two newspapers, circulated in Delhi/NCR were published and several allottees were permitted to join the complaint.

Preliminary objection raised by the OP was that the complaint is barred by limitation.

Analysis & Decision

OP having not completed the development and having not offered possession of the allotted plots to the allottees, they had a recurrent cause of action to file the Consumer Complaint, bench relied on the decision of Meerut Development Authority v. Mukesh Kumar Gupta, (2012) CPJ 12 (SC).

Commission found no merit in the above contention.

Farmers’ Protest | Compulsory Acquisition

With regard to delay in development due to the farmer’s protest, bench on perusal of the communication sent by OP noted that there was no dispute with the farmers as the land comprised in the project namely ‘Megapolis’ was concerned, the said land having been purchased by the complainant on market rate with the consent of landowners, the said case is not of compulsory acquisition of land by the State government.

Small Parcels of Land | Patches required to be acquired from State Government

The proposed project was a large land acquired directly from the farmers, though there were some small patches which were to be acquired from the State Government. OP having advertised the project and having executed the agreements for development and sale of plots, it was for them to purchase those small patches of land from the landowners at a negotiated price even if they had to pay a price higher than the price they were willing to pay.

Hence, it could not be said that the non-acquisition of such small parcels of land delayed the project.

Further, the bench stated that even if the plea taken by the OP with respect to non-acquisition of those small parcels of land is accepted on its face value, the allottees cannot be made to suffer for the inability of the OP to acquire those land parcels.

It’s been 12 years since the sale of the said plots started, but till this date, it is not known whether the OP will be able to complete the development work and if so when the said development would be completed.

Class Action

Counsel for the complainant stated that they have settled with eleven allottees other than the original complainants and they are in negotiations with thirteen other allottees.

For the above-stated, Commission stated that even if the above situation prevails, that would not lead to the dismissal of the class action. Once the jurisdiction of this Commission by way of a class action is invoked, the Commission is required to take the matter to its logical conclusion unless the matter is settled with each and every member of the class.

No Specific Time Period

Commission added to its analysis that though no specific time period for completing the development and offering possession to the allottees was indicated in the agreement, that would not entitle the builder to prolong the development work to an indefinite period.

As far as the development of plots is concerned, such a work does not require as much time as required for construction of group housing flats in multistoried buildings.

“…the development work of the plots, even on a large scale, must be completed within a period of three years from the approval of the lay-out plans.”

Bench relied on the Supreme Court decision of Pioneer Urband Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 and Kolkata West International City (P) Ltd. v. Devasis Rudra II, (2019) CPJ 29 (SC).

In view of the above discussion, Commission held that the allottees of residential plot in the project namely ‘Sushant Megapolis’ cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid to the OP along with appropriate compensation.

Further, the OP shall refund the entire principal amount received and pay Rs 50,000 as cost of litigation.[Bhrigu Kaushik v. Ansal Hi-Tech Township Ltd., Consumer Case No. 1951 of 2016, decided on 16-10-2020]

Case BriefsHigh Courts

Bombay High Court: B.U. Debadwar, J., observed the difference between Sections 28 and 34 of the Land Acquisition Act, 1894 in determining the award to be granted to a person, in the absence of an exact date of possession.

Respondent–claimant was the exclusive owner in possession of the lands situated to village leet, Taluka Bhoom, Osmanabad.

Appellant-State acquired two lands for the Dokewadi Medium Project. Preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 13-04-1990. Possession of both the lands was also taken in the same year.

Award

On 31-12-1994, Special Land Acquisition Officer, after following due process, passed the award thereby determining the compensation at the rate of 15,000 per acre and separately awarded compensation as well.

Section 18 of the Land Acquisition Act

Reference application was moved under Section 18 of the Land Acquisition Act, 1894 for enhancement of compensation after accepting the award under protest.

Civil Judge, Senior Division, Osmanabad allowed the reference partly and enhanced the compensation to Rs 30,000 per acre with statutory benefits.

Appellant–State preferred the present appeal on being aggrieved by the aforestated judgment and award passed by the Joint Civil Judge, Osmanabad and respondent — claimant filed a cross objection under Order 41 Rule 22 of the Code of Civil Procedure, 1908.

Analysis and Decision

On perusal of the impugned Judgment, Court noted that Joint Civil Judge, Senior Division, Osmanabad treated the acquired lands as fertile ‘jirayat lands’ and awarded compensation at the rate of Rs 30,000 per acre.

The Joint Civil Judge appeared to have discarded the evidence of claimant on the aspect of nature of acquired land i.e. ‘bagayat land’, only for the reason that it is not supported by pleadings raised in reference application.

It is pertinent to note that State has awarded separate compensation of various trees, well and taal (dike) situated in acquired land, to the respondent – claimant.

When the appellant – State has awarded separate compensation of well, the question of denying the existence of well in acquired land does not arise.

Having regard to the area of land covered by sale instance proved by the respondent — claimant, area of lands under acquisition by owned by him, nature of acquired lands, i.e. seasonally irrigated lands, source of irrigation, Court held that the compensation determined by the reference Court is not adequate and just compensation.

Further, the Court added that the compensation needs to be raised to Rs 50,000 per acre from Rs 30,000 per acre. Hence, the respondent-claimant is entitled to compensation at the rate of Rs 50,000 per acre.

In the absence of the date of taking possession of lands under acquisition, it is difficult to know whether possession of lands under acquisition was taken prior to publication of the preliminary notification under Section 4(1) of the Land Acquisition Act, 1894, or after the publication of the same.

Though it is clear that possession of acquired lands was taken prior to the passing of award i.e. prior to 31-12-1994.

Section 16 of the Land Acquisition Act, 1894 deals with the power to take possession. According to this provision, when the Collector has made an award and under Section 11 he may take the possession of the land, which shall thereupon absolutely vests in the Government, free from encumbrances.

Whereas, Section 17 of the Land Acquisition Act, 1894, speaks about special powers in case of urgency. According to this provision, in case of urgency, wherever appropriate Government directs the Collector, though no such award has been made, may, on expiration from 15 days from the publication of notice mentioned in Section 9 Sub-Section (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government free from encumbrances.

In the present matter, there is absolutely no evidence about taking possession of lands under acquisition by invoking special powers contemplated under Section 17 of the Land Acquisition Act, 1894.

In view of the decision of State of Maharashtra v. Kailash Shiva Rangari,2016 SCC OnLine Bom 2236 the respondent-claimant would be entitled to interest under Section 34 of the Land Acquisition Act, 1894 from the date of passing of an award under Section 11 of the Land Acquisition Act, 1894 i.e. 31-12-1994 and not from 1990 when possession of acquired lands were taken.

Further, the Court added that the Section under which interest is awarded is neither mentioned in the body of the judgment nor in the operative part.

However, looking to the operative part in its entirety it appears that interest awarded in clause (4) is awarded either under Section 28 or Section 34 of the Land Acquisition Act, 1894 and interest awarded in clause (6) is in the form of rental compensation.

Hence, the claimant is entitled to interest under both Sections of the Land Acquisition Act, 1894 i.e. Section 28 and Section 34 and that has to be awarded from the date of award till realisation of the compensation amount.

Therefore, Joint Civil Judge in Clause 96 of the operative part of the impugned judgment committed a mistake in awarding rental compensation in the form of interest covered under Sections 28 and 34 of the Land Acquisition Act, 1894.

Court partly allowed the appeal and cross objection in the present matter. [State of Maharashtra v. Laxman, 2020 SCC OnLine Bom 894, decided on 04-09-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a landmark ruling the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Land Acquisition Act, 2013).

The bench also held that under the provisions of Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in case the award is not made as on 1.1.2014, the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

Giving elaborate explanation to the provision under Section 24 of the Land Acquisition Act, 2013, the Court, further, held,

  • In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
  • The word ‘or’ used in Section 24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid.

“in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.”

  • The expression ‘paid’ in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court.

“Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the Act of 1894.”

  • In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1).
  • The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).
  • The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
  • The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
  • Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land 319 acquisition. 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 mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

He, however, said that if recusal is made, it would tantamount to giving room to unscrupulous litigant to have a Judge of their choice who can share the views which are to be canvassed by them. The plea cannot be termed anything other than Bench hunting, if it is said that until and unless the one which suits a litigant is found the matters are not to be argued.

[Indore Development Authority v. Manohar Lal Sharma, 2020 SCC OnLine SC 316, decided on 06.03.2020]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Abhay S. Oka, CJ and H.T. Narendra Prasad, J. dismissed the appeals on the ground of delay and laches.

Under the provisions of Karnataka Acquisition of Lands for Grant of House Sites Act, 1972 (the Act of 1972), lands of appellants were acquired. The complete process was followed. Firstly, the Preliminary Notification under Section 3(1) of the Act of 1972 was published on 24-07-1976. Secondly, the final Notification followed on 22-01-1979. Lastly, an award was made for compensation on 09-04-1982 and redetermined dated 04-02-1999.        

Counsel for the appellants, K.N. Nitish submitted that the lands were never acquired. As per Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the acquisition proceedings had lapsed. It was further submitted that no record was placed by the respondents to show that the land was acquired by the fourth respondent (Town Municipal Council). The counsel also submitted that the fact that compensation was not accepted by the appellants was not disclosed by the respondents. The appellants remain aggrieved as they have not been paid the redetermined compensation. 

The Court observed that the writ petitions were filed thirty-four years after the award was made and forty years after the first preliminary notification was issued. Considering the enormous delay, the Single Judge rightly declined to exercise the jurisdiction under Article 226 of the Constitution of India. The Court upheld the view taken by the Single Judge. [K.M. Krishna v. State of Karnataka, Writ Appeal Nos. 777-779 of 2019(LA-HS), decided on 18-06-2019]

Case BriefsHigh Courts

Tripura High Court: A Single Judge Bench comprising of Arindam Lodh, J. disposed of an appeal filed under Section 54 of Land Acquisition Act 1984 and directed the appellant to file his claim before the LA Judge.

The appeal was filed against the decision of the LA Judge who dismissed the reference filed by the appellant (land loser) as he was not able to file claim statement despite repeated opportunities and six adjournments. Learned counsel for the appellant submitted that the appellant could not take appropriate steps at the appropriate time due to inadvertence of the previous counsel.

The High Court, after due consideration of the submissions made on behalf of the petitioner, opined that a litigant should not suffer due to the conduct of the counsel. A counsel is an officer of the Court. Placing reliance on the maxim “actus curiae neminem gravabit”, which means that a litigant should not suffer due to act of the court, The High Court held it just and proper to remand the matter back to the LA Judge while directing the appellant to file claim statement. Lastly, it was observed that legislature has enacted the Land Acquisition Act for the benefit of land losers who are to be compensated in a just and fair manner. [Swapan Gope v.  ONGC Ltd., 2018 SCC OnLine Tri 102, dated 30-05-2018]

 

 

Case BriefsSupreme Court

Supreme Court: In interesting turn of events, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ disagreed with the decision rendered by another 3-judge bench of Arun Mishra, AK Goel and MM Shantanagoudar, JJ in Indore Development Authority v. Shailendra, 2018 SCC Online SC 100, which had on 08.02.2018, overturned the decision of another 3-judge bench of RM Lodha, Madan B. Lokur and Kurian Joseph, JJ in Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183, in the issue relating to land acquisition.

Senior Advocate Mukul Rohatgi submitted before the Court that when a Bench of 3 learned Judges does not agree with the decision rendered by another Bench of 3 learned Judges, the appropriate course of action would be to refer the matter to a larger Bench. He also submitted that a Bench of 3 learned Judges cannot hold another decision rendered by a Bench of 3 learned Judges as per incuriam.

Noticing that some matters have already been decided on the basis of the Indore Development Authority decision and that similar matter were listed before the Supreme Court and various High Courts, the bench requested the concerned Benches dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to larger Bench or not.

Making it clear that the hearing is not concluded on the issue whether the matter should at all be referred to a larger Bench or not, the bench directed:

“it would be appropriate if in the interim and pending a final decision on making a reference (if at all) to a larger Bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.”

The matter will now be heard on March 7, 2018. [State of Haryana v. G.D. Goenka Tourism Corporation Limited, 2018 SCC OnLine SC 145, order dated 21.02.2018]

Case BriefsSupreme Court

Supreme Court: In the case where the Court was deciding the issue relating to interpretation of section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and section 31 of the Land Acquisition Act, 1894, the 3-judge bench of Arun Mishra, AK Goel and MM Shantanagoudar, JJ decided the following questions:

  1. What is the meaning of the expression ‘paid’/ ‘tender’ in Section 24 of the Act of 2013 and section 31 of the Act of 1894?
    The word ‘paid’ in section 24 of the Act of 2013 has the same meaning as ‘tender of payment’ in section 31(1) of the Act of 1894. They carry the same meaning and the expression ‘deposited’ in section 31(2) is not included in the expressions ‘paid’ in section 24 of the Act of 2013 or in ‘tender of payment’ used in section 31(1) of the Act of 1894. The words ‘paid’/tender’ and ‘deposited’ are different expressions and carry different meanings within their fold.
  2. Whether non-deposit of compensation in court under section 31(2) of the Act of 1894 results into a lapse of acquisition under section 24(2) of the Act of 2013? In section 24(2) of the Act of 2013 in the expression ‘paid,’ it is not necessary that the amount should be deposited in court as provided in section 31(2) of the Act of 1894. Non-deposit of compensation in court under section 31(2) of the Act of 1894 does not result in a lapse of acquisition under section 24(2) of the Act of 2013.
  3. What are the consequences of non-deposit in Court especially when compensation has been tendered and refused under section 31(1) of the Act of 1894 and section 24(2) of the Act of 2013? Due to the failure of deposit in court, the only consequence at the most in appropriate cases may be of a higher rate of interest on compensation as envisaged under section 34 of the Act of 1894 and not lapse of acquisition.
  4. Whether such persons after refusal can take advantage of their wrong/conduct?
    Once the amount of compensation has been unconditionally tendered and it is refused, that would amount to payment and the obligation under section 31(1) stands discharged and that amounts to discharge of obligation of payment under section 24(2) of the Act of 2013 also and it is not open to the person who has refused to accept compensation, to urge that since it has not been deposited in court, acquisition has lapsed. Claimants/landowners after refusal, cannot take advantage of their own wrong and seek protection under the provisions of section 24(2) of 2013 Act.
  5. Mode of taking physical possession as contemplated under section 24(2) of the Act of 1894.
    The normal mode of taking physical possession under the land acquisition cases is drawing of Panchnama.
  6. Whether section 24 of Act of 2013 revives barred and stale claims?
    The provisions of section 24 of the Act of 2013, do not revive barred or stale claims such claims cannot be entertained.
  7. Whether the conscious omission referred to in paragraph 11 of the judgment in Shree Balaji Nagar Residential Association v. State of Tamil Nadu [(2015) 3 SCC 353] makes any substantial difference to the legal position with regard to the exclusion or inclusion of the period covered by an interim order of the Court for the purpose of determination of the applicability of Section 24(2) of the 2013 Act?
    Provisions of section 24(2) do not intend to cover the period spent during litigation and when the authorities have been disabled to act under section 24(2) due to the final or interim order of a court or otherwise, such period has to be excluded from the period of five years as provided in section 24(2) of the Act of 2013. There is no conscious omission in section 24(2) for the exclusion of a period of the interim order. There was no necessity to insert such a provision. The omission does not make any substantial difference as to legal position.
  8. Whether the principle of “actus curiae neminem gravabit”, namely act of the Court should not prejudice any parties would be applicable in the present case to exclude the period covered by an interim order for the purpose of determining the question with regard to taking of possession as contemplated in Section 24(2) of the 2013 Act?
    The principle of “actus curiae neminem gravabit” is applicable including the other common law principles for determining the questions under section 24 of the Act of 2013. The period covered by the final/ interim order by which the authorities have been deprived of taking possession has to be excluded. Section 24(2) has no application where Court has quashed acquisition.

[Indore Development Authority v. Shailendra,  2018 SCC OnLine SC 100, decided on 08.02.2018]

Case BriefsSupreme Court

Supreme Court: The Bench of Arun Mishra and Amitava Roy, JJ asked CJI to form a larger bench to decide the question as to whether by virtue of the provisions contained in Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, a land acquisition proceeding can lapse if the landowners refuse to accept compensation. As per Section 24 of the 2013 Act, the land acquisition proceedings will be deemed to be lapsed if the ‘compensation has not been paid’.

The Court was hearing the matter where landowners had refused to accept the compensation deposited by Indore Development Authority (IDA) in lieu of the land acquired for the purpose of development of rings roads. The Madhya Pradesh High Court had held that the proceedings had lapsed in view of the decisions of this Court in Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 and Shree Balaji Nagar Residential Association v. State of Tamil Nadu, (2015) 3 SCC 353 on the ground that the compensation was not paid to the landowners and that the award was made 5 years or more prior to the commencement of the 2013 Act.

IDA, hence, appealed before the Supreme Court and said:

“there was no lapse of proceedings in the instant case as compensation was offered but was not accepted by landowners. For their own refusal they cannot lay the blame at the door of the IDA.”

It was argued before the Court that in spite of not accepting the compensation deliberately and statements are made in the court by the landowners that they do not want to receive the compensation at any cost and they are agitating the matter time and again after having lost the matters and when proceedings are kept pending by interim orders by filing successive petitions, the provisions of section 24 of 2013 Act cannot be invoked by such landowners.

IDA also submitted before the Court that the object of the deposit under Section 31 of Land Acquisition Act, 1894 is to prevent unnecessary prolongation of the proceedings and accumulation of Collector’s liability for interest. When a party willfully refuses to receive payment by depositing the money in the court, the liability for interest will cease.

Considering the fact that many issues relating to lapse of proceedings under Section 24 of 2013 Act were not considered by the 3-judge bench in in Pune Municipal Corporation case, the bench referred the matter to a larger bench. [Indore Development Authority v. Shailendra, 2017 SCC OnLine SC 1426, decided on 07.12.2017]

Case Briefs

Supreme Court: Answering an important question of law, the bench of Kurian Joseph and R. Banumathi, JJ held that the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Rejecting the contention that subsequent purchasers do not have locus standi to challenge the acquisition proceedings, the Court said that it is one thing to say that there is a challenge to the legality or propriety or validity of the acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the persons mentioned above do not have any locus standi.

Stating that the 2013 Act has made a sea change in the approach on the acquisition of land and compensation and that the Act proposes to protect the interest of those persons, among others who are affected by the acquisition, the Court said that the subsequent purchasers/successors, etc., are all people affected by the acquisition, and therefore, also they are entitled to seek a declaration on lapse under the 2013 Act. [Govt. of NCT of Delhi v. Manav Dharam Trust, CIVIL APPEAL NO. 6112 OF 2017, decided on 04.05.2017]

Case BriefsHigh Courts

Allahabad High Court: Recently, an issue arose before the Court as to whether a person interested, who has not accepted the award made under Section 11 of the Land Acquisition Act, 1894, and has filed an application before the Collector under Section 18 of the Act, can file an application under Section 28-A of the Act for redetermination of the amount of compensation. The Additional District Magistrate answered it in negative stating that the remedy under Section 18 of the Act had earlier been invoked by the predecessor in interest of the petitioners by filing a reference application.

Counsel for the petitioner contended that Section 28-A of the Act does not contemplate that if a reference application is filed under Section 18 of the Act, a tenure holder cannot invoke the provisions of Section 28-A of the Act and submitted that the first appeal by his predecessor was not decided on merits, but was dismissed under O VII, R 11 of CPC. The counsel for respondent supported the view adopted by ADM.

On hearing both the parties, the Court discussed the relevant provisions highlighting that the award is made by the Collector under Section 11 of the Act. Section 18 provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter may be referred by the Collector for the determination of the amount of compensation by the Court and Section 28-A of the Act deals with re-determination of the amount of compensation on the basis of the award of the Reference Court.

The Division Bench referred to Scheduled Castes Co-operative Land Owning Society Limited, Bhatinda v. Union of India, (1991) 1 SCC 174 in which the Supreme Court had held that Section 28-A of the Act applies only to those claimants who had failed to seek a reference under Section 18 of the Act and would, therefore, not apply to a case where the claimant had sought and secured a reference under Section 18 of the Act. The Court held that there was no illegality in the order passed by the ADM in rejecting the application filed by the petitioners under Section 28-A of the Act as the same is not maintainable. [Dheer Singh v. State of UP, 2017 SCC OnLine All 596 , decided on 20.02.2017]

 

Case BriefsSupreme Court

Supreme Court: The Bench of A.K. Goel and U.U. Lalit, JJ held that a post-acquisition allottee of land is necessary or proper party or has any locus to be heard in the matter of determination of compensation under the scheme of the Land Acquisition Act, 1894.

In the present case, large land was acquired by the State of Haryana in different phases for the public purpose of setting-up Industrial Model Township by the Haryana State Industrial Development Corporation (HSIDC) in Gurgaon District in Haryana and a substantial part of the acquired land was allotted to Maruti Suzuki India Limited (MSIL). MSIL had sought for Impleadment as a necessary party in the matter relating to enhancement of compensation on the ground that it was a “person interested”. Rejecting the said contention, the Court said that the expression “person interested” could include a company or local authority for whose benefit the land was acquired under Part VII of the LA Act but the post-acquisition allottee cannot by any stretch of imagination be treated at par with beneficiary for whom the land was acquired.

Explaining the scheme of the LA Act, 1894, the Court said that if the acquisition is for a public purpose, the land vests in the State after the Collector makes an award and the possession is taken. Once the land vests in the State, the acquisition is complete. Any transferee from the State is not concerned with the process of acquisition. The State may transfer the land by public auction or by allotment at any price with which the person whose land is acquired has no concern. The mere fact that the Government chooses to determine the allotment price with reference to compensation price determined by the Court does not provide any locus to an allottee to contest the claim for enhancement of compensation. [Satish Kumar Gupta v. State of Haryana, 2017 SCC OnLine SC 159, decided on 21.02.2017]

Case BriefsHigh Courts

Allahabad High Court: While deciding a matter concerning acquisition of land of church by government the Divisional Bench of V.K. Shukla and Mahesh Chandra Tripathi, JJ. held that land belonging to religious bodies can be acquired by the government if the purpose for which it is acquired is a public purpose.

In the present case the petitioner, Bishop of the Church contented that Section 3 of the Place of Worship (Special Provisions) Act, 1991 prohibits conversion of a place of worship of any religious denomination, in view of which the said acquisition by NHAI (National Highway Authority Of India) for extending of 4 lane road to 6 lane highway, should be annulled. The Court relying on case of Yusuf Ajij Shaikh v. Special Land Acquisition Officer, 1994 SCC OnLine Bom 246 : 1995(1) MhLJ 483, held that the intent of legislators in the said Act was to prevent the conversion by persons of the place of worship of one community or section to religious place of worship of some other community or section. Hence the said acquisition which is for public purpose cannot be annulled according to the provision of said Act. The petitioner also contended that such acquisition is violative of Article 25 (right to freedom of religion) and Article 26 (freedom to manage religious affairs).

The Court did away with said contention by relying on the case of Mohammad Ali Khan v. The Special Land Acquisition Officer, Lucknow Nagar Mahapalika Lucknow, AIR 1978 (All) 280, where it was held by the Supreme Court that Article 25 is a personal right which has to be exercised by the individual. It has no nexus with the place or territory where it has to be exercised. The Court observed that Article 26 guarantees inter alia the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2). [Church Of North India Trust Association v. Union Of India, 2016 SCC OnLine All 1185, decided on 19/12/2016]

Case BriefsSupreme Court

Supreme Court: Stating that sections 305, 306 and 387 of the Madhya Pradesh Municipal Corporation Act, 1956 are quite reasonable, the Court said that reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to section 305(1) and compensation for inclusion of land in public street is payable under section 306(3) of the Act. Rejecting the contention that no time period was prescribed for payment of compensation, the Court said that law envisages speedy action without unreasonable delay and that is what is expected of the concerned authorities, in respect of the obligation imposed on them to be discharged. Due to this, the provision cannot be struck down as arbitrary nor can it be said to be confiscatory in nature. The Court was hearing the matter relating to ‘Bus Rapid Transit System Corridor’ where the land was being acquired for widening of roads.

The Court further explained that after the abolition of ‘the right to property’ as a fundamental right, the provisions are quite consistent with Article 300A of the Constitution and reasonable compensation is paid under sections 305 and 306 which if not acceptable, the remedy of arbitration and approaching the District Court under section 387 is available to seek the compensation which has to be on the basis of procedure prescribed in the Land Acquisition Act. Article 300A of the Constitution enables the State to put restrictions on the right by law but the same should not be arbitrary or excessive or beyond what is required in public interest. The imposition of restriction must not be disproportionate to a situation or statute. Legislation providing for deprivation of property under Article 300A must be just, fair and reasonable. Thus, it cannot be said that illusory compensation is provided under section 306 read with section 387 of the Act.

The bench of Jagdish Singh Khehar and Arun Mishra, JJ said that there is restriction put on the ownership rights and in the area no construction can be raised derogatory to the development plan/master plan. When the property vests is clearly culled out in section 305, however the property is held by owner once a development plan is prepared, subject to that use and it is not necessary to acquire the land for the purposes mentioned under section 305. Section 305 is otherwise also a reasonable method of acquisition of the property and it follows a detailed procedure for preparation of development plan/master plan or a town improvement scheme, as the case may be, which involves adjudicatory process and once action is taken under section 305, reasonable compensation follows, special procedure as prescribed, is a complete Code in itself and even if a person is not satisfied, he can claim adjudication under section 387 of the Act where the procedure of the Land Acquisition Act, 1894 is applicable.

The Court also said that development plan itself is binding and has to be implemented by the Corporation not only under the provisions of section 292 but also under the provisions of section 66(1)(y) of the Act of 1956 which mandates a duty upon the Corporation for fulfilling any obligation imposed by the Act or under any other law for the time being in force. [Ravindra Ramchandra Waghmare v. Indore Municipal Corporation, 2016 SCC OnLine SC 1405, decided on 29.11.2016]

Supreme Court

Supreme Court: Dismissing the present appeals filed on the issue of land acquisitions in several villages of Noida, Gautam Budh Nagar and Greater Noida, the 3 Judge Bench comprising of H.L.Dattu, C.J, A.K. Sikri and Arun Mishra, JJ., observed that the Allahabad High Court had studied the ground realities to come up with a practical solution by adequately compensating the land owners namely- increasing the compensation by 64.7% is payable immediately without taking away the rights of the land owners to claim higher compensation under the machinery provided in the Land Acquisition Act; and directing allotment of developed abadi land to the extent of 10% of the land acquired of each of the land owners. The Bench thus affirmed the decision of the Allahabad High Court.  

The case evolved from plethora of writ petitions filed challenging the validity of the Notification dated 12.03.2008 which was issued by the State of U.P under Section 4 read with Section 17 of the Land Acquisition Act, 1894, for colorful exercise of power by acquiring land arbitrarily and with mala fide intentions for the stated purpose of “Planned Industrial Development”. The Notification issued had taken away the right of objection under Section 5A through Section 17(4).Various land owners also filed writ petitions against the decision of the Government to provide the land to a third party for development. The Notification was challenged before the full Bench of Allahabad High Court, wherein the High Court held that the State Government was wrong to invoke the urgency provisions of Section 17 (1); and (4) of the Land Acquisition Act, 1894.

The learned counsel for the appellants Amrendra Sharan, along with other counsels, pointed out the illegalities that were committed in issuing the Notification for acquisition, and argued that the Notification for the acquisition should be quashed due to fraud committed by the Government by not using the land acquired for the stated purpose. Whereas, counsel for the respondents, L.N. Rao contended that the appeals should be dismissed on the ground of inordinate delay and laches, since majority of the land owners have already accepted the compensation provided by the Government, thereby accepting the Government’s proposition of acquiring the land.

Upon perusing the contentions, the Court observed that on one hand, invocation of urgency provisions under Section 17 of the 1894 Act and dispensing with the right to file objection under Section 5A of the Act, was found illegal; and on the other hand, there arose a situation where because of delay in challenging these acquisitions by the land owners, developments have took place in these villages and in most of the cases, third party rights have been created. The Court further observed that the present case does not call for the Court’s interference under Article 136.  Savitri Devi v. State of Uttar Pradesh, 2015 SCC OnLine SC 507, decided on 14.05.2015

Foreign LegislationLegislation Updates

Lok Sabha passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 on 10-03-2015. The objective of the Bill is to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and repeal the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014.

The Bill proposes following amendments in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013:

  • Substitutes the word “private company” with “private entity”;
  • Substitutes the words and figures “Companies Act, 1956” with that of “Companies Act, 2013”;
  • Inserts a definition for “private entity” as “any entity other than a Government entity or undertaking and includes a proprietorship, partnership, company, corporation, non-profit organisation or other entity under any law for the time being in force”;
  • Inserts a new Chapter IIIA which provides for the power of the appropriate Government to exempt certain projects from the application of the provisions of Chapter II and Chapter III of the Act;
  • Provides for compulsory employment to atleast one member of the affected family of farm labourers;
  • Provides right to farmers to appeal/ complain over land acquisition hearing and redressal of grievances at the district level;
  • Court to take cognizance of the offence under the Act as per Section 197 of the CrPC against the persons who are/was employed in the Central Government or State Government;
  • Return of unutilized land – instead of after “a period of five years” to “a period specified for setting up of any project or for five years, whichever is later”;
  • Substitutes Section 105(3) with the following clause-

“(3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015″.