Land Acquisition Archives

Supreme Court June 2022 Roundup| Clean chit to PM Modi; Maharashtra Political Crisis; Psychological Evaluation of Death Row Convicts; and more

Clean Chit to PM Modi in 2002 Gujarat riots case

“SIT Officials have come out with flying colours unscathed despite all odds”; SC upholds SIT’s clean chit to PM Modi in 2002 Gujarat riots

“The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State.”

Maharashtra Political Crisis

Supreme Court refuses to stay Trust Vote; Uddhav Thakrey resigns as CM

No stay on floor test, disqualification proceedings to be kept in abeyance till July 11; Read SC’s directions on Eknath Shinde’s plea

Psychiatric & Psychological Evaluation of death row convicts

Supreme Court mandates call for mental health report before pronouncing death sentence

“Implicit in this shift is the understanding that the criminal is not a product of only their own decisions, but also a product of the state and society’s failing, which is what entitles the accused to a chance of reformation.”

Insolvency and Bankruptcy

Liability in respect of a claim arising out of a Recovery Certificate is a “financial debt” under Section 5(8) of the IBC

The words “means a debt along with interest, if any, which is disbursed against the consideration for the time value of money” are followed by the words “and includes”. By employing the words “and includes”, the Legislature has only given instances, which could be included in the term “financial debt”. However, the list is not exhaustive but inclusive.

NEET-PG 2021

“Process of admission and that too in the medical education cannot be endless”; SC says no to Stray Round of counselling for unfilled NEET-PG 2021 seats

“There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.”

Fact Check of this Supreme Court story from a Leading Newspaper

On June 14th 2022, a leading newspaper had published an article with the headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”. While on the face of it, it appeared to be a landmark judgement, on our correct analysis of the judgment, we found out that neither the couple was held to be cohabitating “without marriage” nor was the son considered to be “illegitimate”.

Read the Fact Check: We fact-check a leading newspaper’s misleading headline “Illegitimate child of cohabiting couple to get assets share: Supreme Court”

Read the accurate analysis by the SCC Online Blog: Long co-habiting couple’s child cannot be disentitled from family property in absence of proof against presumption of marriage

Most Read Story of the Month

Beyond Reasonable Doubt versus Preponderance of Probabilities: Supreme Court explains why circumstances guide the Courts in deciding Right to Private Defence cases

“The underlying factor should be that such an act of private defence should have been done in good faith and without malice.”

Cases Reported in SCC

2022 SCC Vol. 4 Part 2 : In 2022 SCC Volume 4 Part 2, read this very pertinent matter of the Supreme Court wherein it was decided whether culpable homicide tantamounts to murder or not. [State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227]

2022 SCC Volume 4 Part 3: This part consists a very pertinent decision of the Supreme Court wherein it was held that it cannot be said that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property as such interpretation will be against the provisions Section 83(1) of Act. [Rashid Wali Beg v. Farid Pindari, (2022) 4 SCC 414]

2022 SCC Volume 4 Part 4: This part encapsulates, a very interesting decision, wherein while criticizing the practise of granting cryptic bail in a casual manner, the Court expressed, “It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.” [Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497]

2022 SCC Vol. 5 Part 1: This part encapsulates, a very interesting decision of the Supreme Court wherein the Court while dealing with Appointment of Vice-Chancellor, held, that it cannot be made dehors the applicable UGC Regulations, even if the State Act concerned prescribes diluted eligibility criteria vis-à-vis the criteria prescribed in the applicable UGC Regulations. [Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179]

2022 SCC Vol. 5 Part 2: This part covers the decision wherein the scope of “deemed authorization” clause under S. 16 provisio of the Petroleum and Natural Gas Regulatory Board Act, 2006 has been dealt with. It has been held that if one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. [Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210]

2022 SCC Vol. 5 Part 3: This part consists of an important decision on the menace of “dowry”, wherein it has been held that “Dowry” ought to be ascribed an expansive meaning so as to encompass any demand made on a woman, whether in respect of a property or a valuable security of any nature. [State of M.P. v. Jogendra, (2022) 5 SCC 401]

2022 SCC Vol. 5 Part 4: This part covers a pertinent decision on Section 29-A(h) of the Insolvency and Bankruptcy Code, 2016, wherein it has been held that existence of personal guarantee invoked by creditor is sufficient to render disqualification against the person executing guarantee, even when the application seeking initiation of insolvency resolution process is filed by some other creditor. [Bank of Baroda v. MBL Infrastructures Ltd., (2022) 5 SCC 661]

SCC Snippet

Why Reason is the Soul of Justice : The bench of GS Singhvi and AK Ganguly, JJ, in Kranti Associates Private Limited v. Masood Ahmed Khan, (2010) 9 SCC 496, stressed upon the importance of reasoned judicial orders and elaborated on why “reason is the soul of justice.”

Experts Corner Siddharth Batra

Section 24 of Land Acquisition Act 2013 and Doctrine of Finality: An Overview

Just before the country stepped into the grasp of COVID-19 Pandemic, the Supreme Court of India delivered a verdict in Indore Development Authority v. Manoharlal[1] hereinafter “Indore Development Authority (5-Judge Bench)”, which gave a new interpretation to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter “2013 Act”).

Subsequently, the Court overruled the three-Judge Bench decision in Pune Municipal Corpn. v. Harakchand Misirimal Solanki[2] (hereinafter “Pune Municipal Corporation”) and even the decisions which were decided on the basis of Pune Municipal Corpn. case[3], which rose a wall of conflict because and leads to the question as to whether a case that has attained finality be “reopened” merely because there’s a change in interpretation of law?

In this piece we analyse whether overruling of a precedent on the basis of change in interpretation of Section 24 of the Land Acquisition Act, 2013 by a bigger Bench could lead to reopening of the cases which are already decided and have attained finality.

In 2013, the government brought the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which replaced the Land Acquisition Act of 1894 (hereinafter “1894 Act”).

The 2013 Act was a ray of hope which was blocked since decades in terms of fair compensation and rehabilitation across the country. The Act was said to correct the historical wrongs in the process of land acquisition by the state for development projects and insisted on fair compensation for landowners, past and present.

The Controversy Around “Section 24” of Land Acquisition Act, 2013

Section 24 of the 2013 Act provides for retrospective operation of the 2013 Act qua pending acquisition proceedings under the 1894 Act. Section 24(1) says that in case of a pending land acquisition proceeding, where a compensation award has not been passed under the 1894 Act, then the landowners would be entitled to compensation prescribed under the 2013 Act.

On the other hand, Section 24(2) says that in case the compensation award has been made under the Land Acquisition Act, 1894, then the land acquisition proceedings under the 1894 Act would be deemed to have lapsed.

Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.—(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,—

(a) where no award under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

Pune Municipal Corpn. v. Harakchand Solanki (three-Judge Bench)[4]

In 2014, a three-Judge Bench comprising of Justice Lokur, Justice Joseph and Justice Lodha in Pune Municipal Corpn. case[5] held that deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. The court remarkably said that if such compensation is not paid to the landowner then “the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act”.

Indore Development Authority v. Shailendra (Three-Judge Bench)[6]

The precedent laid down in Pune Municipal Corpn. case[7] was overruled by another three-Judge Bench comprising of Justice Arun Mishra, Justice A.K. Goel and Justice Shantanagoudar in Indore Development Authority v. Shailendra[8] [hereinafter “Indore Development Authority (3-Judge Bench)”]. The Court opined that the compensation under Section 24 of the Act was deemed to have been paid if the money were deposited in the government treasury and the same need not be deposited in court.

We unanimously agree to the answers given to all the questions except to the aspect decided by majority whether Pune Municipal Corpn. Harakchand Misirimal Solanki[9], is per incuriam or not. As the majority has taken the view that it is per incuriam, it is declared to be per incuriam. The questions referred stand answered in terms of the majority judgment. Hence, ordered accordingly.

The court remarked that the provision has been sought to be blatantly misused and the law never envisages such absurd results as is being sought to be achieved.

75. … The beneficial provisions of the 2013 Act are put to misuse that tantamounts to grossest abuse of the provisions of law to reopen such acquisitions and the court has to thwart all such attempts at the threshold and not to receive such cases even for consideration for a moment. We see development has taken place in the area that has been acquired….

Conflict between the two Benches

In 2020, there was a conflict whether a three-Judge Bench can overrule another three-Judge Bench judgment which we saw in Indore Development Authority[10] (3-Judge Bench). Accordingly, the same was referred to a larger Bench, which also turned out to be controversial as Justice Arun Mishra was part of the larger Bench.

In this regard, an application was filed before the court for the recusal of Justice Arun Mishra from the larger Bench, as he had decided the issue in the three-Judge Bench. Senior Advocate Shyam Divan, in the course of his submissions, referred to the phrase “no man can be a Judge in his own cause”.

Later, Justice Mishra refused to rescue from the larger Bench and said:

(…) The previous judgment cannot constitute bias or a predisposition nor can it seem to be such, so as to raise a reasonable apprehension of bias…. Accepting the plea of recusal would sound a death knell to the independent system of justice delivery where litigants would dictate participation of Judges of their liking in particular cases or causes.[11]

Indore Development Authority v. Manoharlal (Constitution Bench) [12]

In March 2020, a five-Judge Constitution Bench led by Justice Arun Mishra in Indore Development Authority[13] (5-Judge Bench), held that proceedings under Section 24 of the 2013 Act will not lapse if compensation has been deposited in the treasury, not requiring the payment to the landowner or court concerned. In doing so, the Court upheld an earlier judgment in Indore Development Authority[14] (3-Judge Bench) which was also headed by Justice Arun Mishra.

The Court further held that landowners cannot say in court that proceedings have lapsed if the Government has rendered the amount of treasury and there was no need to actually deposit the amount with landowners or court.

Resultantly, the decision rendered in Pune Municipal Corpn.[15] is hereby overruled and all other decisions in which Pune Municipal Corpn.[16] has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. v. State of T.N.[17] cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra[18], the aspect with respect to the proviso to Section 24(2) and whether ‘or’ has to be read as ‘nor’ or as ‘and’ was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment. Held the Court in Indore Development Authority, [19] (5-Judge Bench).

In September 2020, Former Chief Justice of India, Sharad A. Bobde also questioned the infallibility of the Constitution Bench judgment in Indore Development Authority[20] (5-Judge Bench) delivered by Justice Arun Mishra.

Justice Bobde said the order gifted the Government “laxity” in several aspects, which even Parliament did not bother to provide under the 2013 Act.

“The judgment has given the Government laxity, which Parliament did not want the Government to have. Parliament had said the Government cannot do this, the law said the compensation should not be kept pending … the Government cannot just take over land and not pay compensation.” Chief Justice Bobde said:

The judgment in Indore Development Authority[21] (5-Judge Bench) also missed a chance to apply to the doctrine of prospective overruling and rather the Court held that other decisions which were finalised/decided on the base of Pune Municipal Corpn.[22] would also be overruled. This was not only problematic but bad in law also, because once the matter/suit has been concluded between the parties then it cannot be reopened due to a subsequent change in position of law.

There have been many instance where the courts have clarified that if matter has been concluded between parties, the same parties cannot be reopen the case due to a subsequent change in position of law which is not expressly retrospective.

Prospective and Retrospective Overruling

Prospective overruling

The doctrine of prospective overruling has been borrowed from the American judicial system. It states that when a decision made in a particular case would have operation only in the future and will not carry any retrospective effect on any past decisions.

The concept of prospective overruling was not into the picture before C. Golak Nath v. State of Punjab[23], as it was in C. Golak Nath case[24] that the said doctrine was firmly established by then Chief Justice Kokka Subba Rao. It was a judgment rendered by an eleven-Judge Bench in the C. Golak Nath[25]. Before C. Golak Nath[26], the prospective overruling was mostly used by American Courts and hence Indian law borrowed the concept from there.

Retrospective overruling

Retrospective overruling accords with the declaratory theory of common law that the Judges do not make or change the law but merely declare it. The retrospective overruling doctrine allows old transactions to be reopened.

Clarifying the position on retrospective operation in Rangarao v. Kamlakant[27], the Supreme Court in clearly stated that no judgment of any court can have any retrospective operation because that is the plenary power of Parliament (legislature as well).

On our careful consideration, we find that the appellant is entitled to succeed. It is undeniable that on the date when the compromise memo fruitioned into a decree on 3-1-1985, the civil court had every jurisdiction to pass such a decree. It is true the notification issued under Clause 30 of C.P. and Berar Letting of Houses and Rent Control Order, 1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19-6-1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3-1-1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (legislature as well). The courts do not have such power. If that be so, the High Court had clearly gone wrong in holding that the decree on the date of execution is a nullity. As correctly contended by Mr Sanghi, learned counsel for the appellant, the jurisdiction will have to be decided on the date of the decree, namely, 3-1-1985. On that date undoubtedly it had every jurisdiction. Therefore, we hold that the High Court fell into an error in upsetting the concurrent findings of the courts below. Accordingly, we set aside the judgment of the High Court and allow the civil appeal.

In ECIL v. B. Karunakar[28], the court placed reliance on Supreme Court of United States and highlighted that while overruling previous law or laying a new principle, the US Supreme Court had made its operation prospective and given the relief to the party succeeding and in some cases given retrospectively and denied the relief in other cases.

As a matter of constitutional law, retrospective operation of an overruling decision is neither required nor prohibited by the Constitution but is one of judicial attitude depending on the facts and circumstances in each case, the nature and purpose of the particular overruling decision seeks to serve. The court would look into the justifiable reliance on the overruled case by the administration; ability to effectuate the new rule adopted in the overruling case without doing injustice; the likelihood of its operation whether substantially burdens the administration of justice or retard the purpose. All these factors are to be taken into account while overruling the earlier decision or laying down a new principle. The benefit of the decision must be given to the parties before the court even though applied to future cases from that date prospectively would not be extended to the parties whose adjudication either had become final or matters are pending trial or in appeal. The Court held.

Doctrine of Finality of Judgment and Res Judicata

Section 11 of the Code of Civil Procedure envisages the doctrine of res judicata or the rule of inclusiveness of a judgment, as to the points decided either of facts, or of law, or of fact and law in every subsequent suit between the same parties.

The doctrine of res judicata is based on three Roman maxims:

(a) Nemo debet bis vaxari pro una et eadem causa (no man should be vexed twice for the same cause);

(b) interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation);

The doctrine of finality of judgments puts an end to the judicial process, prohibiting subsequent appeals, new proceedings and disputing clearly established facts. Hence, the decision in Indore Development Authority (5J Bench)[29], where the Supreme Court had ordered the “reopening” of cases which have been already decides, goes against the aforementioned principle (doctrine of finality) and here are some of the decisions where the courts have taken a view about it.

In Chanchal Kumar Chatterjee v. State of W.B.[30], the Calcutta High Court held that the principle of finality of litigation is based on a sound firm principle of public policy and in the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation.

In this regard, the Court held:

In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Supreme Court of a country cannot and should not be unsettled lightly.

Further, in Indu Bhusan Jana v. Union of India[31], the Calcutta High Court also stressed that the principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. In this regard, the Court held:

… Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. The principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution[32].

Even, the Supreme Court in Union of India v. S.P. Sharma[33], held that the main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court.

In M. Nagabhushana v. State of Karnataka[34] this Court held that the doctrine of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. The main object of the doctrine is to promote a fair administration of justice and to prevent abuse of process of the court on the issues which have become final between the parties. The doctrine is based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. The Court held.

Hence, the finality of judgments, particularly at the Supreme Court is an aspect of public policy and fundamentally linked to the doctrines or res judicata and stare decisis.

Significantly, the Court also held that finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court.

The Court held:

In a country governed by the rule of law, finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse affect on the administration of justice. It would also nullify the doctrine of stare decisis a well-established valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly the Supreme Court of a country cannot and should not be unsettled lightly.

With regard to endless litigation and reopening of cases, the court said that the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation.

“The doctrine of res judicata has been evolved to prevent such anarchy” the court remarked.

In Atam Prakash v. State of Haryana[35], the Court held that the suits which have been decreed and such decrees have become final since no appeals have been filed against the same, the said decrees are binding inter-parties and the declaration made by the Supreme Court is of no avail to the parties thereto.

The court was dealing with some suits which were pending in various courts, where decrees have been passed, appeals were pending in appellate courts.

In this regard, the Court opined that:

(…) Such suits and appeals will now be disposed of in accordance with the declaration granted by us. We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those decrees. The decrees will be binding inter-partes and the declaration granted by us will be of no avail to the parties thereto[36].

Similarly, the Supreme Court in Shanti Devi v. Hukum Chand[37], agreed with the position laid down in Atam Prakash case[38] and held:

(…) As such the direction of this Court in Atam Prakash case[39] that such decrees shall be binding inter-partes notwithstanding the declaration of this Court in the aforesaid judgment, was fully applicable in the present case. The High Court has rightly come to the conclusion that notwithstanding the judgment of the Constitution Bench in Atam Prakash[40] the decree in the suit for pre-emption filed on behalf of the respondent was binding between the parties.

Notably, while affirming with High Court’s view the Supreme Court in Union of India v. Ranbir Singh Rathaur[41], held that review of the earlier orders passed by this court was “impermissible” and approach of the High Court of reopening the case was “erroneous” and the issue of maintainability of the petitions was of paramount importance.

It further said that to say that “justice stood at the higher pedestal” then the finality of litigation was not an answer enabling the court to reopen a finally decided case.

Furthermore, in Kalinga Mining Corpn. v. Union of India[42], the Supreme Court held that it is well settled that judicial review of the administrative action/quasi-judicial orders passed by the Government is limited only to correcting the errors of law or fundamental procedural requirements which may lead to manifest injustice.

(…) When the conclusions of the authority are based on evidence, the same cannot be reappreciated by the court in exercise of its powers of judicial review. The court does not exercise the powers of an appellate court in exercise of its powers of judicial review. It is only in cases where either findings recorded by the administrative/quasi-judicial authority are based on no evidence or are so perverse that no reasonable person would have reached such a conclusion on the basis of the material available that the court would be justified to interfere in the decision. The scope of judicial review is limited to the decision-making process and not to the decision itself, even if the same appears to be erroneous.

To conclude, it is pertinent to refer to what Supreme Court remarked in Ambika Prasad Mishra v. State of U.P. [43],

“6. It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority ‘merely because it was badly argued, inadequately considered and fallaciously reasoned“.

The question that ultimately arises is whether Doctrine of Finality become a causality after Indore Development Authority: Can the cases where rights are already frozen be reopened? In my view, in case the cases decided are reopened, it will certainly lead to an anomaly in the settled principle of law.

†Siddharth Batra, Advocate on Record, Supreme Court of India. Email: siddharth.batra@satramdass.com

†† Chinmay Dubey, Associate Satramdass B & Co., Delhi Email: chinmay.dubey@satramdass.com

[1] (2020) 8 SCC 129.

[2] (2014) 3 SCC 183.

[3] (2014) 3 SCC 183.

[4] (2014) 3 SCC 183.

[5] (2014) 3 SCC 183.

[6] (2014) 3 SCC 183.

[7] (2014) 3 SCC 183.

[8] (2018) 3 SCC 412, 584, 477.

[9] (2014) 3 SCC 183.

[10] (2018) 3 SCC 412.

[11] Indore Development Authority v. Manohar Lal, (2020) 6 SCC 304, 359.

[12] (2020) 8 SCC 129

[13] (2020) 8 SCC 129.

[14] (2018) 3 SCC 412.

[15] (2014) 3 SCC 183.

[16] (2014) 3 SCC 183.

[17] (2015) 3 SCC 353.

[18] (2018) 3 SCC 412.

[19] (2020) 8 SCC 129, 393.

[20] (2020) 8 SCC 129.

[21] (2020) 8 SCC 129.

[22] (2014) 3 SCC 183.

[23] AIR 1967 SC 1643.

[24] AIR 1967 SC 1643.

[25] AIR 1967 SC 1643.

[26] AIR 1967 SC 1643.

[27] 1995 Supp (1) SCC 271, 273.

[28] (1993) 4 SCC 727, 783, 784.

[29] (2020) 8 SCC 129.

[30] 2018 SCC OnLine Cal 12970.

[31] 2014 SCC OnLine Cal 21487.

[32] Chanchal Kumar Chatterjee case, 2018 SCC OnLine Cal 12970.

[33] (2014) 6 SCC 351, 390, 391.

[34] (2011) 3 SCC 408.

[35] (1986) 2 SCC 249.

[36] (1996) 5 SCC 768, 769, 770.

[37] (1996) 5 SCC 768, 770.

[38] (1986) 2 SCC 249.

[39] (1986) 2 SCC 249.

[40] (1986) 2 SCC 249.

[41] (2006) 11 SCC 696.

[42] (2013) 5 SCC 252, 273.

[43] (1980) 3 SCC 719, 723.

Case Briefs Supreme Court

Land Acquisition| Compensation under 2013 Act cannot be claimed if award under 1894 Act couldn’t be passed due to pendency of proceedings or interim stay: Supreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that in a case where on the date of commencement of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, no award has been declared under Section 11 of the Act, 1894, due to the pendency of any proceedings and/or the interim stay granted by the Court, such landowners shall not be entitled to the compensation under Section 24(1) of the Act, 2013 and they shall be entitled to the compensation only under the Act, 1894.

It was argued before the Court that there is no express provision in Section 24, that excludes the period during which any interim order was operative, preventing the State from making an award. The Court, however, rejected the contention and held that preventing the State from taking the possession of acquired land or from giving effect to the award, in a particular case or cases, cannot result in the inclusion of such period or periods for the purpose of reckoning the period of five years.

It cannot be disputed that there shall be a very huge difference between the quantum of compensation payable under the Act, 1894 and the compensation payable under the Act, 2013. It cannot be said that there was any inaction on the part of the Authority in not declaring the award because of the interim order passed by the Court.

“Therefore, should the State and the Public Exchequer be made to suffer when there is no inaction on the part of the Authority in declaring the Award? The intention of the Parliament while enacting Section 24(1) of the Act, 2013 cannot be to give benefit to a litigant, who has obtained a stay order and because of that the award could not be declared and thereafter the litigant may be awarded the compensation as per Act, 2013. It may even result in discrimination between the landowners, whose lands have been acquired under the same notification.”

Stating that no party could take advantage of a litigation, the Court held that the principle of restitution is a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that an unsuccessful litigant who had the benefit of an interim order in his favour cannot encash or take advantage of the same on the enforcement of the Act, 2013 by initially stalling the acquisition process and later seeking a higher compensation under the provisions of Act, 2013.

The Court, hence, observed that

“If at the instance of a landowner, who has challenged the acquisition, an interim order has been passed by a Court is successful then the proceeding of acquisition or the acquisition notification would be quashed. Then there would be no occasion to determine any compensation. But on the other hand, if a landowner, who has the benefit of an interim order in his favour whilst a challenge is made to the acquisition, is unsuccessful, he cannot then contend that he must be paid compensation under the provision of the Act, 2013 on its enforcement, whereas a landowner, who did not have the benefit of any interim order is paid compensation determined under the provisions of the Act, 1894, which is lesser than what would be computed under the Act, 2013.”

[Faizabad-Ayodhya Development Authority v. Dr. Rajesh Kumar Pandey, 2022 SCC OnLine SC 679, decided on 20.05.2022]

*Judgment by: Justice MR Shah

Case Briefs Supreme Court

Land Acquisition| Can market value be determined retrospectively based on the market value of land acquired two years later? SC answers

Supreme Court: In a case where the Court was posed with the question as to whether determination of market value subsequent to the notification would be relevant to determine the market value of the land acquired more than two years earlier, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the same was not permissible.

In the present case, the notification dated 26.10.1990 was published intending to acquire 32 acres 6 kanal and 3 marlas of land in Village Sohana and 90 acres 7 kanal and 18 marlas of land in Village Lakhnaur. The said notification was followed by a notification dated 6.11.1991 issued under Section 6 of the Land Acquisition Act, 1894. The Land Acquisition Collector awarded compensation of Rs.1,75,000/- per acre. Aggrieved by the market value determined by the Land Acquisition Collector, the land owners sought reference under Section 18 of the Act. The Reference Court awarded compensation of Rs.4 lakhs per acre apart from the compensation for super-structures. The said award of the amount of compensation was based upon a judgment dated 11.10.2002 by the Reference Court pertaining to the same notification in respect of land situated in Village Lakhnaur.

It is important to note that the land situated at Village Sohana was also acquired vide notification dated 11.11.1993. The Reference Court awarded Rs.6,96,000/- per acre. However, the High Court has awarded compensation @ Rs.8 lakhs per acre. It was hence argued before the Supreme Court that suitable deduction should be made from such determination of the market value of the land acquired vide notification dated 26.10.1990.

The Court, however, noticed that, in the case at hand, when the later notification is issued, the development activities had already been taken place in view of the earlier two notifications. Therefore, it was not the percentage of increase in the market value but increase due to the development which has taken place on account of earlier notifications.

The Court, hence, held that the market value of the land cannot be based upon the land acquired vide notification dated 11.11.1993 i.e., more than two years later of the notification in question and when there were other notifications intervening on 26.10.1990 and 25.7.1991.

[Bhag Singh v. Union of India, 2022 SCC OnLine SC 553, decided on 05.05.2022]

*Judgment by: Justice Hemant Gupta

Counsels

For Land Owners: Senior Advocate Rameshwar Singh Malik

High Court Round Up Legal RoundUp

110 Reports from 20 High Courts: Money Laundering, Child Marriages, Rule of Law, PC & PNDT Act, Adultery, Media Trial and more | April RoundUp 2022

110 Reports from 20 High Courts

Allahabad High Court

Money Laundering

For money launderers “jail is the rule and bail is an exception”

While addressing a matter with regard to anticipatory bail, Krishan Pahal, J., observed that, Money Laundering being an offence is economic threat to national interest and is committed by the white-collar offenders who are deeply rooted in society and cannot be traced out easily.

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Right to Approach the Court

Person whose case is based on falsehood has no right to approach the Court

Expressing that Courts of law are meant for imparting justice, Sanjay Kumar Singh, J., observed that more often the process of Court is being abused by unscrupulous litigants to achieve their nefarious design.

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Bail

Cogent and clinching evidence found regarding conversion of deaf and dumb students to Islam; Bail denied

The Division Bench of Brij Raj Singh and Ramesh Sinha, JJ. dismissed a criminal appeal which was filed under Section 21 (4) of the National Investigation Agency Act, 2008 of refusal of bail to the appellant.

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Unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans; foundations of our nation are more enduring: All HC while granting bail to Kashmiri Students

Expressing that Students travelling freely to different parts of the country in the quest for knowledge is the true celebration of India diversity and a vivid manifestation of India’s unity, Ajay Bhanot, J., stated that it is the duty of the people of the hosting State to create enabling conditions for visiting scholars to learn and to live the constitutional values of our nation.

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Andhra Pradesh High Court

Arms Act

Will carrying of toy gun in public attract S. 25 of Arms Act? Bail granted to a man giving stills as a hero with an air gun in a cinema theatre

“…the offences punishable under Sections 290, 506(2) IPC are bailable in nature. As regards the offence punishable under Section 25 of the Arms Act, 1959, is concerned, the pistol which was seized from the possession of A-1 is an air gun. It is a toy gun.”

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Wilful Negligence

No offence made out under POA Act against bank officials who misplaced the house documents and title deeds of a claimant as FIR does not show wilful Negligence by a public servant

The Court after perusing Section 3(1) (v) and 3(2) (vii) and Section 4 of POA, Act, which deals with punishment for neglect of duties it is clear that these cannot be made applicable to the facts in issue. Section 3(2)(vii) postulates a situation where a person being a public servant commits any offence under this section i.e., Section 3(2) shall be punishable with imprisonment for a term which shall be less than one year but which may extend to the punishment provided for that offence.

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Vakalat and Written

Signatures on the Vakalat and the Written Statement cannot be considered as signatures of comparable and assured standard for want of expert opinion under S. 45 Evidence Act

Ninala Surya, J., decided to not interfere with the impugned order and dismissed the civil writ petition.

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Bombay High Court

Child Marriages

Child marriages will have to be stopped and no person can be allowed to take advantage of any such situation

Vibha Kankanwadi, J., expressed that Child marriages are hazardous to the social fabric of this Country.

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Decorum of Court

Advocate to maintain dignity & decorum of Court, no room for arrogance and no license to intimidate Court

Anuja Prabhudessai, J., expressed that an advocate as an Officer of the Court is under an obligation to maintain the dignity and decorum of the Court. There is no room for arrogance and there is no license to intimidate the Court, make reckless accusations and allegations against a Judge and pollute the very fountain of justice.

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Compassionate Appointment

Can legal heir of deceased employee be granted compassionate appointment, who took voluntary retirement due to being medically unfit?

Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

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Religious Verses

Declaration of reciting religious verses at someone’s residence: Act of breaching personal liberty of another person?

Stating that, “Great power comes with greater responsibility”, the Division Bench of Prasanna B. Varale and S.M. Modak, JJ., expressed that, the expectation of responsible behaviour or responsible conduct from those persons who are active in public life cannot be an extra expectation but would be a basic expectation.

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Eviction

Son not expected to brand his aged father a ‘swindler’ or allege that aged parents have lost mental balance

In a matter wherein, the parents sought eviction of their son, Rohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

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Arbitration and Conciliation Act

Can mere filing of proceedings under S. 7 IBC be treated as an embargo on Court exercising jurisdiction under S. 11 of Arbitration & Conciliation Act?

A very interesting question was considered by G.S. Kulkarni, J., the question being, whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016 would amount to an embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act, 1996, to appoint an arbitral tribunal?

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Land Acquisition

For determining land acquisition compensation, market value, if any, specified in Stamp Act for registration of Sale Deed and/or Agreement of Sale has to be considered

The Division Bench of S.V. Gangapurwala and Vinay Joshi, JJ., expressed that only because 83% of the property for the project is acquired, it would be egregious not to apply the provision of the statute for determination of compensation.

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Pension

If service of an employee at his superannuation is less than ten years, then previous temporary or officiating service needed to be counted for qualifying service for pension

The Division Bench of R.D. Dhanuka and S.G. Mehare, JJ., expressed that, for condoning the interruption in service, the total service pensionary benefit in respect of which will lost should not be less than five years duration, excluding one or two interruptions.

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Partition

In a suit for partition, the heads of all the branches are necessary parties

Mangesh S. Patil, J., decided on the following questions for consideration:

Whether in a suit for partition and possession of the field all the sharers and co-partners are necessary parties?
Whether suit for partition and possession is bad for non-joinder of necessary parties and therefore ought to have been dismissed?
Whether in the circumstances of the case, the observation regarding non-joinder of necessary parties, made by the appellate court, are proper?

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Maintenance

Can filing of a maintenance proceeding, a criminal case for harassment be said to be sufficient to jump to a conclusion that wife intended to harass husband and his relations?

In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

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“No Confidence”

If directly elected Sarpanch acts in a manner rendering functioning of Panchayat at a standstill, would member of panchayat get right to move motion of ‘no confidence’?

Stating that in the democratic setup, the will of the majority is the rule, the Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., held that if the directly elected Sarpanch fails to call the meetings of the Panchayat or acts in a manner rendering the functioning of the Panchayat at a standstill, the member of the Panchayat would certainly get a right to move a motion of no confidence.

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Motor Accident Case

Determination of a just compensation cannot be equated to be a bonanza

Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

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Society

Can minority members of a Society act against will of majority members and foist delay in commencement of redevelopment work of Society?

Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigation, G.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

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Abortion

Past pregnancy can be determined on account of permanent changes in the body of a woman

While addressing a matter, wherein the accused who was a doctor charged for raping a minor stated that there was not any proof that the girl ever conceived or had undergone any abortion, M.G. Sewlikar, J., expressed that, Medical science is so advanced that now a days past pregnancy also can be determined on the basis of changes in the body of a woman on account of pregnancy.

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Custody of Child

Non-custodial parent cannot be deprived of his right to spend quality time and enjoy company of children

Anuja Prabhudessai, J., expressed that the children also have the right to love and affection from both parents as well as grandparents as it is essential for the personal development and overall well-being of the children.

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Partnership Act

Every partner is liable, jointly with all other partners and also severally for all acts of firm done while he is a partner: Is it true?

Expressing that, a firm is not a legal entity, N.J. Jamadar, J., held that a partnership firm is only a collective or compendious name for all the partners.

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Constitutional Validity of S. 29A of Consumer Protection Act

Whether absence of President of State Commission or District Forum for reasons beyond control is sufficient for striking down S. 29A as unconstitutional?

Stating that, the Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., addressed a matter wherein the constitutional validity of Section 29A of the Consumer Protection Act, 1986 has been challenged.

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Lawyer-Client Relationship

Lawyer-client relationship is a fiduciary one; any act which is detrimental to legal rights of clients’ needs to be punished

Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.

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Sale Deed

Whether a natural guardian having executed sale-deed of property of a minor in favour of a third party and thereafter repurchased part of it, can be prosecuted for offences under Ss. 420, 467, 468, 471 of IPC that too, after more than 35 years from date of attaining majority by minor?

The Division Bench of V.M. Deshpande and Amit Borkar, JJ., expressed that a transaction by a natural guardian of a minor with respect to his immovable properties is valid till a Court strikes it down.

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Muslim Personal Law

Under Muslim Personal law, can Family Court dissolve the marriage of a couple?

The Division Bench of V.K. Jadhav and Sandipkumar C. More, JJ., addressed whether Family Court under Muslim Personal Law (Shariat) Application Act, 1937 read with Section 7(1)(b) Explanation (b) of the Family Courts Act, 1984 declare the matrimonial status of a wife and husband.

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Competition Commission of India

Competition Commission of India not to take any coercive actions against Asianet, Disney and Star India until 8th June

The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., directed the Competition Commission of India not to take any coercive actions against Asianet Star Communications Private Limited, Disney Broadcasting and Star India.

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Alimony

Whether the husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955?

Bharati Dangre, J., held that provision of maintenance/permanent alimony being a beneficial provision for the indigent spouse, Section 25 can be invoked by either of the spouse, where a decree of any kind governed by Sections 9 to 13 has been passed and marriage tie is broken, disrupted or adversely affected by such decree of the court.

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Properties

Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants?

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

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Calcutta High Court

Departmental Proceedings

DGP directed to initiate departmental proceedings against Police Officers; CID to take over investigation

Rajasekhar Mantha, J. while adjudicating a case involving serious offences under Section 365, 354B and other provisions of IPC directed the Director General of Police, West Bengal to initiate appropriate departmental proceeding against the ASI, Arnab Chakraborty and any other person that he may feel was responsible for misleading the Court further handing over the investigation to CID, West Bengal.

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Policy Decisions

Policy decisions of State not to be disturbed unless found to be grossly arbitrary or irrational; prayer for extension of lease rejected

Shampa Sarkar, J. decided on a petition which was filed for a direction upon the respondents 7 and 8 to cancel and/or quash the notice dated April 6, 2022, with regard to handing over the possession of the ferry ghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner.

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Currency Notes

There are many known heroes and unsung heroes, if everybody starts making such a claim there will not be an end; Petition for printing Netaji’s picture on currency notes dismissed

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. dismissed a petition which was filed by the petitioner with the plea that having regard to the contribution of Netaji Subhas Chandra Bose in the freedom struggle, his picture should be printed on the Indian currency.

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Arbitration and Conciliation Act

Scope of S. 9 of A&C Act cannot be extended to enforcement of award or granting fruits of award to award holder as an interim measure; application dismissed

Ravi Krishan Kapur, J. dismissed an application which was filed under Section 9 of the Arbitration and Conciliation Act, 1996 (‘the Act’) wherein liberty to withdraw a sum of Rs 4,11,89,759/- deposited by the award debtor, State of West Bengal, with the Registrar, Original Side of this Court upon furnishing of appropriate security was sought.

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Rape

Lady IPS Officer directed to investigate in the recent matter of 4 rape cases in the villages

The Division Bench of Prakash Shrivastava, CJ. and Rajarshi Bharadwaj, J. took up a petition and directed Damayanti Sen, IPS presently working as Special Commissioner of Police to Kolkata Police to investigate in the matter of rape cases at village Nehalpur, Nandipara, incident on Dol Purnima and English Bazar.

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Indian Forest Act

Court orders release of vehicles confiscated under the Indian Forest Act with unprecedented observations

Rabindranath Samanta, J. allowed a criminal revision petition which was filed aggrieved by the order of Magistrate wherein he had rejected the prayers made by the petitioners for return of two vehicles which were seized by the Deputy Ranger (Beat Officer), Bamonpokhari Range Office of the Forest Range, Kurseong Forest Range, Darjeeling

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GST Act

The interest of revenue has been safeguarded; Order of detention against the State upheld in matter of GST Act

The Division Bench of T. S. Sivagnanam and Hiranmay Bhattacharyya, JJ., dismissed an appeal and connected application which was filed by the State against the order of detention passed by the authority detaining two trucks containing consignment of steel and other products in WPA 17611 of 2021 dated: 07-12-2021 wherein petitioner was the wife of late Mohit Madhogoria, who was a registered dealer under the provisions of the W.B.V.A.T. Act presently under the GST Act.

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Chhattisgarh High Court

Legislation

Whenever substantive obligation/rights/ interests are impaired/adversely affected through any piece of subordinate legislation, then its source must be traced within express provisions in four corners of parent enactment

“…the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.”

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Unlawful Detention

Writ of habeas corpus is a writ of right, it is not a writ of course; a prima facie case of unlawful detention must be made

The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the applicant must show a prima facie case of unlawful detention of the subject.

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Section 304 B of Penal Code, 1860

An order of acquittal is not to be set aside lightly; Chh HC observes in a case where daughter in law committed suicide in unnatural circumstances

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record.

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Will

Daughters also entitled for getting equal share in the property inherited by their parents; Court reiterates and allows appeal deciding validity of will

Narendra Kumar Vyas, J. allowed an appeal filed by the defendants setting aside the judgment and decree by the Trial Court whereby trial Court had decreed the suit filed by plaintiff/respondent 1, dismissed the counter claim filed by appellants/defendants 1 to 3.

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Criminal Trial

Criminal trial and confiscation proceedings may run simultaneously; Once the information of confiscation proceeding under S. 52 (e) Indian Forest Act is given to DM, Trial Magistrate has no power over it

“…a bare reading of Section 52, Indian Forest Act, 1927 makes it clear that Forest Officer has power to confiscate the vehicle and the Competent Authority after giving show cause notice to the petitioner.”

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Abduction

If a girl runs away voluntarily without any persuasion, can boy with whom she eloped be held responsible for abducting the girl?

Deepak Kumar Tiwari, J., held that, when the accused has not played any active role or persuaded the victim and the victim voluntarily left the protection of her parents and having capacity to know her action, no offence of abduction is made out.

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Delhi High Court

Maintenance

Husband with sufficient means, is obligated to maintain wife and children?

In a maintenance matter, Subramonium Prasad, J., expressed that, if a husband has sufficient means, he is obligated to maintain his wife and children and not shirk away from his moral and familial responsibilities

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Rule of Law

Whether absence of rule of law or utter disregard for the same propels a country towards inevitable ruin?

Expressing that, attempts to circumvent or undermine judicial decisions need to be viewed seriously in order to ensure that the functioning of our country is unhindered, especially during turbulent times, Subramonium Prasad, J., held that,

“It is only the rule of law which not only cements the civilised functioning of a country, but also drives a country towards progress and development.”

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Framing of Charge

Does framing of charge means that accused is guilty or does it imply that accused may be guilty?

“The beauty of procedural law lies in the stages and remedies available during the course of a criminal proceeding.”

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Levy of Liquidated Damages

If a contract comprises, several components awarded to different contractors, would it be inapposite to blame contractor that was last in completing work for loss suffered on account of delay in completing Project?

While reiterating the law on award of liquidated damages, Vibhu Bakhru, J., expressed that, where a contract comprises, several components awarded to different contractors, it is inapposite to blame the contractor that is last in completing the work for loss suffered on account of delay in completing the Project.

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Arbitration Agreement

Rule of priority in favour of arbitrators is counterbalanced by Courts’ power to review existence and validity of arbitration agreement

“Once a valid arbitration agreement exists between the parties, the issue whether the petitioner is entitled to any relief in the absence of a third party to the agreement or that third party is required to be impleaded in the proceedings, is covered by the Doctrine of Competence-Competence and it will be for the Arbitrator to decide the said issue.”

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PC & PNDT Act

Can Court take cognizance of complaint filed by single-member Appropriate Authority for offences under PC&PNDT Act, 1994?

Mukta Gupta, J., held that, the Metropolitan Magistrate/ Judicial Magistrate of the first class is competent to take cognizance and try the offence punishable under the PC&PNDT Act on the complaint of an Appropriate Authority or any officer authorised on this behalf by the Central Government or the State Government or the Appropriate Authority under sub-Section (1) of Section 28 of the Pre-Conception and Pre Natal-Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

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Jurisdiction

Can power under S. 482 CrPC be exercised where allegations are required to be proved in Court of law?

Rajnish Bhatnagar, J., expressed that the Court in the exercise of its jurisdiction under Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the complaint or delve into the disputed question of facts.

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Recusal of Judge

When a Judge recuses without reasons, can a litigant or third party intervene, comment or enquire?

Asha Menon, J., held that, when a Judge recuses, no litigant or third party has any right to intervene, comment or enquire. The recusal has to be respected, whether a reason has been spelt out in detail or not.

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Adultery

Only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of provision under S. 125(4) CrPC

While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

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Civil Contempt

Disobedience of an order of Court, if permitted, will result in striking at root of rule of law

Whether the third party can be absolved from contempt if they are informed that their conduct would violate the Court order, Subramonium Prasad, J., reiterated the well-settled position that though broadly a person who is not a party to the proceedings cannot be proceeded against for violation of the order, but a third party cannot seek to absolve themselves if they are informed about the fact that their conduct amounts to a violation of the Court and that despite the information, they choose to willfully flout the mandate of the Court.

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Denial of Sex

Whether denial of sex can qualify as “exceptional depravity” under S. 14 of the Hindu Marriage Act and allow waiver of one-year mandatory period?

Noting that, Section 14 of the Hindu Marriage Act intends to discourage the couples from breaking the sacred bond of marriage in haste, the Division Bench of Vipin Sanghi, ACJ and Jasmeet Singh, J., held that, a mandatory one year period granted under Section 14 of the Act, encourages couples to cool down, and give a rethink to preserve their marriage.

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Bail

Person accused of defrauding Government: Will Del HC grant bail to the accused?

Prateek Jalan, J., grants bail to a person who was alleged to cause fraudulent transactions and loss to the government.

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Cocoon of protection, afforded by a bail order insulates suspect and he could thwart interrogation reducing it to futile rituals

Asha Menon, J., expressed that, personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

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Arbitration and Conciliation Act

Scope of examination under S. 11 of A&C Act is confined to existence of arbitration agreement or does it extend to adjudicating nature of contract as well?

Vibhu Bakhru, J., held that whether claims are barred by limitation is a mixed question of fact and law and is required to be examined by the Arbitral Tribunal.

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Whether an award passed under S. 34(4) of the A&C Act is a fresh award for the purpose of S. 34 of the Act?

Vibhu Bakhru, J., allowed an amendment application seeking amendment of a petition filed under Section 34 of the Arbitration and Conciliation Act.

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Infringement

Red Bull v. Sting | Injunction application against Pepsico’s tagline “STIMULATES MIND ENERGIZES BODY”: Whether Pepsi has committed infringement?

Amit Bansal, J., observed that the taglines of ‘Red Bull’ and ‘Sting’ are descriptive and laudatory in nature.

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Scholarship Advertisement

If an advertisement regarding scholarship was published in Urdu language, can it be presumed that it was targeted at students belonging to a particular community only?

The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

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COVID-19

Can Delhi High Court direct State for payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19?

The Division Bench of Vipin Sanghi, ACJ and Navin Chawla, J., held that this Court cannot direct payment of ex gratia compensation of Rs 1 Crore to families whose members died due to COVID-19.

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Physical relations on Promise to Marry

Long term relationship with intent of marriage ended on hostile terms, would it be covered under S. 376(2)(n) IPC?

Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

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Political Clearance

Judges required to seek political clearance qua private visits abroad: Did Del HC strike down Ministry of External Affairs’ Office Memorandum requiring the same?

The Division Bench of Rajiv Shakdher and Jasmeet Singh, JJ., strikes down the OM dated 13-7-2021, to the extent it requires Judges of the Supreme Court and the High Court to seek political clearance qua private visits abroad.

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Natural Justice

Refusal of a trade mark without even affording a hearing would be contrary to fundamental tenets of natural justice

Prathiba M. Singh, J., expressed that, refusing trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice.

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LOC issued against Rana Ayyub

Infringement of Human Rights and restraint of her freedom of speech and expression?

While expressing that a LOC is a coercive measure to make a person surrender, Chandra Dhari Singh, J., noting that the petitioner had appeared on each and every date before the Investigating Agency when summoned, quashed the LOC issued against Rana Ayyub.

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Arbitration and Conciliation Act

Vibhu Bakhru, J., forms an arbitration tribunal to adjudicate the matter with regard to use the brand name/trademark “Hero”.

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Custodial Interrogation

Father of deceased accuses brother-in-law for her suicide: If chargesheet has already been filed, is there any need of custodial interrogation?

Chandra Dhari Singh, J., decides a bail matter wherein a woman was alleged to have committed suicide due to harassment and dowry demands by in-laws.

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Gujarat High Court

Reinstatement of Employee

Court directs reinstatement of employee alleged of corruption charges; termination order quashed

Biren Vaishnav, J. allowed a petition which was filed challenging the order of termination passed by the respondent – authority, by which, the services as Assistant Motor Vehicle Inspector, Class-III of the petitioner has been terminated on the ground of lodging of an FIR under Sections 7, 8, 12, 13(1)(D) and 13(2) of the Prevention of Corruption Act.

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Bail

First step of turning him into a hardcore criminal will be sending him behind bars; Court allows bail

A.S. Supehia, J. allowed a bail application in connection with FIR filed for the offences under Sections 363, 366, 376(2)(n), 376(3) of the Penal Code, 1860 as well as Sections 4, 6, and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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Custody of Children

Mother alleged to have extra-marital affair, will father be granted custody of children?

Ashok Kumar C. Joshi, J., denied granting child custody to father, wherein the mother was alleged to have extra-marital affairs.

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Himachal Pradesh High Court

COVID-19

PIL filed by an advocate for grant of stipend to her as well other Advocates, who have not completed 3 years of practice on account of Covid-19; HP HC directs to approach State Bar

A Division Bench of Mohammad Rafiq CJ. and Jyotsna Rewal Dua JJ. disposed of the petition and directed to approach State Bar Council.

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Jharkhand High Court

Natural Justice

Principles of natural justice required to be followed and cannot be waived out depending upon quantum of punishment; Reiterated mandate of natural justice in blacklisting cases

The Court remarked that the cardinal principle of natural justice is mandatory to be followed in a case where any adverse decision/action is being taken against one or the other. The issuance of notice means that the person against whom any adverse action proposed to be taken, is required to be provided with the opportunity of hearing.

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Jammu and Kashmir and Ladakh High Court

Advocates are officers of Court and deserve same respect and dignity as is being given to Judicial and Presiding Officers of Courts

Sanjay Dhar, J., expressed that, there may be stray incidents where the advocates have resorted to levelling allegations against the Judicial Officers in order to seek transfer of their cases from one Court to another to suit their convenience, but then this cannot be generalized.

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Maintenance

Minor seeks maintenance but issue of her paternity is in question: Will J&K and Ladakh HC grant maintenance amidst the dispute?

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

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Kerala High Court

Sexual Assault

In the guise of applying makeup, a bridal make up artist alleged sexually assaulted several women: Can he be granted anticipatory bail?

Gopinath P., J., granted bail to the bridal make up artist who was alleged to have sexually assaulted several women in the guise of applying make up.

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Media Trial

Can media be given right to speculate on outcome of one going investigations or Court proceedings or criminal trials?

While addressing the matter with regard to the media trial, Mohammed Nias C.P., J., expressed that, half-truths and misinformation cannot be the basis of publications or telecast.

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Alimony

Can children claim any amount under the head of permanent alimony under S. 25 of the Hindu Marriage Act?

Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

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Consensual Sex

Can promise to marry a married woman be legally enforceable wherein she voluntarily formed sexual relations with a man?

Dr Kauser Edappagath, J., addressed a matter wherein a married woman voluntarily had sex with her former lover.

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Maintenance Tribunal

Whether power of Maintenance Tribunal under Senior Citizen Act is circumscribed to ordering of monthly allowance?

In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

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Family Court

Do Family Courts have to remain as a neutral umpire of the real dispute between the parties?

Expressing that, Family Court has been functioning in like manner of an ordinary Civil Court, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., remarked that, family courts have to be impartial or neutral.

Dissatisfaction with the administration of justice in the Family Courts is writ large on the face of many orders challenged before this Court.

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Karnataka High Court

Mere suspicion is not enough to prosecute the petitioner for offence punishable under S. 370 of the IPC for human trafficking; Kar HC observes in a case where AIO caught 3 Indian nationals on suspicion

The Court after perusing complaint, charge sheet and Section 370 of the IPC observed that the petitioner had indulged himself in human trafficking and thus the soul of the provision is exploitation.

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Election

Kar HC quotes “The Vajpayee led NDA–Government was toppled for want of one vote” and Benjamin Franklin while deciding a case of a returning candidate whose election was set aside

“…A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”

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Solid Waste Management

PIL filed seeking to shift the location identified for setting up solid waste management; directions issued

A Division Bench of Ritu Raj Awasthi CJ. and S. R Krishna Kumar JJ. issued directions regarding setting up of solid waste management units after expert opinion from concerned authorities.

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A&C Act

Kar HC deals whether an international commercial arbitral award rendered outside India between the parties who have no connection to India can be enforced in India

“…a foreign award under a New York Convention has been given a special status. India being a signatory to the said New York Convention it is required that all countries which are signatories to the New York Convention enable execution of a foreign arbitral award rendered in a reciprocating country in the event of a property against which the arbitral award is sought to be enforced is situated within the jurisdiction of that particular country.”

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Dishonour of Cheque

Kar HC decides contours of law in a classic case where cash of Rs 2 crore was borrowed as hand loan and a cheque obtained for the repayment of the same got dishonoured

The Court observed that the Act was amended by the Amendment Act of 2018 and Section 143A came to be inserted. The purport of the amendment is that the Court may in certain circumstances award interim compensation which shall not exceed 20% of the amount of the cheque and such interim compensation can be permitted to be withdrawn in terms of the said amendment.

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Madras High Court

Tax Liability

If an assessee under stress of investigation, signs a statement admitting tax liability and makes a few payments, can it lead to self-ascertainment?

Merely because an assessee has, under stress of investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment.

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Two-Finger Test

Ban the practice of two-finger test on victims of sexual offences by medical professionals

Stating that two-finger test cannot be permitted to be continued, the Division Bench of R. Subramanian and N. Sathish Kumar, JJ., directed the State Government to ban the practice of two-finger test on victims of sexual offences by the medical professionals.

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Co-parcenary Right

Are Coparcenary rights taken away by Hindu Succession Act?

Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters

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Legal Profession

Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice

Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the Constitution, M. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

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Law of Limitation

Exercise of power of discretion if made excessively, it would defeat the purpose and object of law of limitation; Courts not to travel beyond permissible extent

Expressing that, Power of discretion is to be exercised to mitigate the injustice if any occurred to the litigants, S.M. Subramaniam, J., remarked that,

“Litigations/appeals are expected to be filed within the period of limitation as contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable.”

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Madhya Pradesh High Court

Live-in Relationships

Live-in relationships are engulfing ethos of Indian society, and promoting promiscuity and lascivious behavior, giving further rise to sexual offences

Subodh Abhyankar, J., expressed that, the bane of live-in-relationship is a by-product of the Constitutional guarantee as provided under Article 21 of the Constitution of India.

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Divorce

Woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman; Appeal for divorce dismissed

“Based on Hindu law, marriage is a sacred tie and the last of ten sacraments that can never be broken. Also, it is a relationship that is established by birth to birth. Also, it is not only considered as sacred but it is also a holy union. The main objective of marriage is to enable a woman and a man to perform their religious duties. Along with this, they also have to beget progeny. Based on ancient writings, a woman is considered half of her husband and thus completes him. While a man is also considered incomplete without a woman.”

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Criminal Proceeding

Criminal proceeding maliciously instituted with an ulterior motive for wrecking vengeance deserves to be quashed; Court allows petition by husband

Rajeev Kumar Shrivastava, J. allowed a petition which was filed to quash FIR for offence under Sections 498-A, 506, 34 of IPC and other subsequent proceedings initiated therefrom.

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Bail

Warning issued to Additional Session Judge for granting bail on caste and bias

Vivek Agarwal, J. allowed a bail application issuing a warning to First Additional Session Judge, Maihar, District Satna to be more cautious and judicious in his approach in future so that image of the judiciary can be saved and allegations of casteism and bias are not allowed to be levied so to tarnish collective image of judiciary.

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Mental Cruelty

Mental cruelty inflicted by the wife over her husband through her conduct a valid ground for divorce; Court allows appeal

The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed an appeal which was preferred under Section 19 of the Family Court Act, 1984 against the judgment and decree dated 27-03- 2019 passed by the Link Family Court whereby the application preferred by the appellant/applicant/husband under Section 13(1)(iA) of Hindu Marriage Act, 1955 had been rejected.

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Dishonour of Cheque

Whether dishonour of cheques could have only given a cause of action to register an FIR for an offence under S. 420 IPC?

The Court stated it is a well-settled principle of law that the general law will not prevail over the Special Law as enshrined in the maxim generalia specialibus non derogant.

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Orissa High Court

Dishonour of Cheque

Ori HC considers whether any difference exists between a case where default is committed and prosecution immediately launched and where prosecution is deferred till cheque presented again gets dishonored for second or successive time?

R K Pattnaik, J. dismissed the petition and held that the ground on which the petition is raised is misconceived and therefore, cannot be sustained.

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Rajasthan High Court

Sexual Assault

Ex–fiancée levelled charges of sexual assault to harass and destroy present married life of the boy; Raj HC issues notice and directs police to neither harass nor arrest him

Dinesh Mehta, J., issues notice and directs police to neither harass nor arrest the petitioner boy.

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Bail

Raj HC granted temporary bail for a period of 15 days to enable the appellant to perform Kanyadaan on daughter’s marriage

A Division bench of Manindra Mohan Srivastava, CJ. and Madan Gopal Vyas J. allowed the application and granted bail for a period of 15 days.

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Mining Operations

PIL filed seeking permit for gypsum mining in the districts Shriganganagar and Haumangarh; Raj HC observes citizen does not have any vested right to carry on mining operations, absolute right lies with State

A Division Bench of Farjand Ali J and Sandeep Mehta JJ. directed that as and when the gypsum mining operations are opened in Sriganganagar and Hanumangarh districts, the petitioners shall not be entitled to apply for mining licenses for this purpose in either of these two districts.

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Maintenance of Senior Citizens

Ill-treatment meted out to respondent-mother, expelled from her own house, allegations of mental, physical and social abuse; Raj HC directs petitioner-son to vacate the house with his family

The Court observed that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted by the Legislature in the background that the traditional norms and values of the Indian Society are lost due to withering of the joint family system as a large number of elderly are not being looked after by their family, particularly the widowed women, who are forced to spend their twilight years all alone and are exposed to emotional neglect, lack of financial support and are rather treated as a waste.

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Right to Procreation

Raj HC reiterated “Right to Procreation survives during incarceration” and “is traceable and squarely falls within the ambit of Article 21 of our Constitution; Parole granted

The Division Bench of Farjand Ali and Sandeep Mehta, JJ. allowed the petition and granted parole after considering the religious philosophies, cultural, sociological and humanitarian aspects, coupled with the fundamental right guaranteed by the Constitution of India.

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Punjab and Haryana High Court

Duration of Marriage

Short duration of marriage cannot be the only ground to disallow organ transplant by spouse; writ petition allowed

Raj Mohan Singh, J., contemplated the present petition and ruled that a short duration of marriage is absolutely no ground to deny an organ transplant.

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Mental Cruelty

Unworkable Marriage | Wife makes unfounded, indecent and defamatory allegations against husband to his senior officers, destroying his career & reputation: Mental Cruelty or not?

Expressing that, Matrimonial cases are matters of delicate human and emotional relationship, the Division Bench of Ritu Bhari and Ashok Kumar Verma, JJ., expressed that, the Court no doubt should seriously make an endeavour to reconcile the parties, yet, if it is found that the breakdown is irreparable, then divorce should not be withheld.

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Voice Sample

S. 65-B (4) of the Evidence Act does not mention the stage of furnishing the certificate for admissibility; Court directs to give voice sample

Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

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Telangana High Court

Employees State Insurance Act

Exhausting the remedy available for appeal is the rule and entertaining a writ petition is an exception

G Radha Rani, J., disposed of the petition and directed the petitioner to approach the EI Court under Section 75 of the ESI Act by filing an appropriate application.

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Tripura High Court

POCSO

Offence under S. 8 of the POCSO Act not been established beyond reasonable doubt; Court acquits man of POCSO charges

Arindam Lodh, J. partly allowed an appeal which was filed against the judgment and order of conviction whereby and whereunder the appellant has been found guilty for committing an offence punishable under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3 years for the said offence and also found guilty under Section 448 of IPC and sentenced to suffer Rigorous Imprisonment for 1 year for the said offence.

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Statement of the victim show exaggerations and improved versions; Court reduces sentence in POCSO matter

Arindam Lodh, J. partly allowed an appeal which was filed challenging the judgment of conviction and order of sentence passed by Special POCSO judge wherein the appellant had been convicted under Section 10 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 20,000/- with default stipulation and further convicted under Section 451 IPC and sentenced him to suffer simple imprisonment for 6 months and to pay fine of Rs. 5000 with default stipulation.

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Sikkim High Court

State directed to ensure immediate escalation of progress of work of repairing of NH-10; meeting called to chalk out the immediate course of action before monsoon arrival

The Division Bench of Biswanath Somadder and Meenakshi Madan Rai, JJ. took up the PIL in order the peruse the status report concerned with the damaged roads and highways in the State.

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Missing Children

Directions issued for tracing out the missing children in the State; CCTV’s installed in police stations

The Division Bench of Biswanath Somadder, CJ. and Meenakshi Madan Rai, J. issued certain directions in the matter of a PIL concerning missing children in the State.

Read full report here…

Case Briefs

Land owners cannot claim acquisition proceeding is lapsed u/s. 24(2) of Right to Fair Compensation Act where stay was obtained by them vide interim orders: Supreme Court

Supreme Court: The Division Bench comprising of M. R. Shah* and B.V. Nagarathna, JJ., reversed the impugned judgment of Karnataka High Court holding that land owners who approach the acquisition proceedings and obtain interim orders in their favour cannot take benefit under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The instant case arose from land acquisition proceedings, by which the State of Karnataka had issued notification to acquire disputed lands in two parts– 172 acres 22 guntas of land owned by Jamanlal Bajaj Seva Trust and 104 acres 5 guntas of land owned by very same Trust.

Decision of the High Court

The said acquisitions were challenged before the Karnataka High Court. However, when the said petitions were pending, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force. Therefore, the petitioners submitted an application seeking to invoke the benefit of the Act, 2013 and urged that the benefit of provisions of the said Act would be available to it.

The Single Judge allowed the writ petitions by holding that respective acquisitions had lapsed under Section 24(2) of the Act, 2013, which was confirmed by the Division Bench and the appeal was dismissed. Consequently, the matter was challenged before the Supreme Court.

Mandatory for the Courts to Pronounce Judgment on all Issues

The Bench observed that although, the Single Judge framed as many as six common points for consideration, the Single Judge decided only one issue, namely, whether the acquisition proceedings have lapsed by virtue of the 2013 Act. The Bench noted that though a number of issues/grounds were raised and as such the original reliefs sought (acquisition proceedings under Act 1894) were the main reliefs which were required to be dealt with and considered, unfortunately, the Single Judge did not give findings on the other issues/grounds and on the reliefs sought and disposed of the writ petitions considering only one relief/ground.

Relying on the case of Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557, the Bench opined that a case may be disposed of on a preliminary issue however, it is mandatory for the Courts to pronounce judgment on all issues to avoid remand in an appealable case for deciding other issues. The Bench remarked,

“…it is the duty cast upon the courts to adjudicate on all the issues and pronounce the judgment on all the issues rather than adopting a shortcut approach and pronouncing the judgment on only one issue. By such a practice, it would increase the burden on the appellate court…”

Therefore, the Bench opined that when a number of submissions were made on the other issues/grounds, the High Court ought to have considered the other issues and ought to have given the findings on other issues also as because of omission by the High Court the Court was left with no alternative but to remand the matters to the Single Judge for deciding the Writ Petitions afresh on all other issues.

Misuse of Right to Fair Compensation and Transparency in Land Acquisition Act

The Bench noted that there has been a trend of land owners filing fresh cases seeking lapse of acquisition on the basis of Section 24(2) of the Act, 2013, although such land owners may have earlier unsuccessfully filed writ petitions challenging the acquisition notifications. The Bench opined that such land owners may have had the benefit of interim orders of stay of further proceedings in the acquisition process or dispossession resulting in a delay in the making of the award and payment/deposit of the compensation and consequently in taking over possession of the acquired land.

Consequently, there being a delay in the passing of the award owing to interim orders granted by the High Court where suits may have been filed against acquiring bodies. The Bench held that the land owners cannot now take advantage of the same so as to contend that no award has been made and consequently there has been no payment or deposit of the compensation and that possession of the acquired land continues with them. The Bench remarked,

“The land owners having had the benefit of interim orders granted in their favour in proceedings initiated by them against the acquisition cannot take benefit under Section 24(2) of the Act, 2013.”

Hence, the Bench directed that the High Court or the civil courts which may have granted interim orders in favour of the land owners, ought to consider the aforesaid aspect before applying Section 24(2) of the Act, 2013 in favour of the land owners.

Conclusion

In the backdrop of above, the impugned common judgment and order of the High Court declaring that the acquisition proceedings had lapsed under subsection (2) of Section 24 of the Act, 2013 was held to be unsustainable for being in the tooth of decision in Indore Development Authority v. Manoharlal, (2020) 8 SCC 129, and was set aside.

The matters were remitted to the Single Judge to decide and dispose of the writ petitions afresh and in accordance with law and on their own merits. Additionally, the Bench directed the Single Judge to adjudicate all other issues which were framed and pronounce the judgment on all the points framed for consideration.

[Agricultural Produce Marketing Committee v. State of Karnataka, 2022 SCC OnLine SC 342, decided on 22-03-2022]

*Judgment by: Justice M. R. Shah

Appearance by:

For the Trust: C.U. Singh, Senior Advocate

For the State: V.N. Raghupathy, Advocate

Kamini Sharma, Editorial Assistant has put this report together

Case Briefs Supreme Court

“State cannot hide behind delay & laches to evade it’s responsibility after acquiring land. There cannot be a ‘limitation’ to doing justice”, holds SC; Land Owners get compensated after decades

Supreme Court: In a case where the bench of S. Ravindra Bhat* and PS Narsimha, JJ was posed with the question as to whether the State can, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated, answering in negative, the bench held that the State cannot shield itself behind the ground of delay and laches as there cannot be a ‘limitation’ to doing justice.

Factual Background

The State of Himachal Pradesh utilised the subject land and adjoining lands for the construction of the ‘Narag Fagla Road’ in 1972-73, but allegedly no land acquisition proceedings were initiated, nor compensation given to the appellants or owners of the adjoining land.

Pursuant to a judgment by the Himachal Pradesh High Court directing the State to initiate land acquisition proceedings, a notification under Section 4 of the Land Acquisition Act, 1894 (hereafter ‘Act’) was issued on 16.10.2001 (published on 30.10.2001) and the award was passed on 20.12.2001 fixing compensation at ₹30,000 per bigha.

After a writ petition by similarly situated land owners was allowed by the High Court with the direction to acquire lands of the writ petitioners under the Act, with consequential benefits, the appellants approached the High Court in 2011, seeking compensation for the subject land or initiation of acquisition proceedings under the Act.

Relying on a Full bench decision of the High Court, it was held by the High Court in the impugned judgment that the matter involved disputed questions of law and fact for determination on the starting point of limitation, which could not be adjudicated in writ proceedings. The writ petition was disposed of, with liberty to file a civil suit in accordance with law.

Analysis

Right to property – Importance

While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State.

Can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated?

The Court considered the facts of the present case that revealed that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants’ prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction.

Noticing that at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law, the Court observed that,

“When seen holistically, it is apparent that the State’s actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court’s directions to those who specifically approached the courts. The State’s lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners.”

The Court also noticed that the State had merely averred to the appellants’ alleged verbal consent or the lack of objection, but had not placed any material on record to substantiate this plea. It was also unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation.

Further, despite the property not being adjoining, the subject land was acquired for the same reason – construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court’s intervention under Article 226 jurisdiction. Hence, in the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law.

Ruling

The State was, hence, directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 and to consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013.

Given the disregard for the appellants’ fundamental rights for decades after the act of dispossession, the Court also directed the State to pay legal costs and expenses of ₹ 50,000 to the appellants.

[Sukh Dutt Ratra v. State of Himachal Pradesh, 2022 SCC OnLine SC 410, decided on 06.04.2022]

*Judgment by: Justice S. Ravindra Bhat

Counsels

For appellants: Advocate Mahesh Thakur

For State: Advocate Abhinav Mukerji

Case Briefs Supreme Court

“Land owner cannot be deprived of the use of the land for years together”; SC sets aside Bombay HC’s direction to acquire a land almost 20 years after finalisation of development plan

Supreme Court: In a case where the Development Plan was finalized in the year 2002, but the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894, the bench of Hemant Gupta* and V Ramasubramanian, JJ has held that the Bombay High Court’s direction to acquire land within a period of one year is in contravention of the time line fixed under the Maharashtra Regional and Town Planning Act, 1966.

In the present case, in 2016 i.e. after the expiry of the ten years’ time line, the appellants issued notice under Section 127 of the Act so as to purchase the reserved land within one year of the date of the notice. The Bombay High Court held that the reservation of land in the Development Plan stands lapsed as no declaration under Section 126 of the Maharashtra Regional and Town Planning Act, 1966 was published. However, the Planning Authority was given one year time to acquire the land once reserved.

The Supreme Court, however, disagreed with the High Court’s view and held that once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired.

“The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period.”

The Court observed that the Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra in 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. Hence,

“The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain.”

Consequently, the direction to acquire the land within one year was set aside by the Court.

[Laxmikant v. State of Maharashtra, 2022 SCC OnLine SC 349, decided on 23.03.2022]

*Judgment by: Justice Hemant Gupta

Case Briefs Supreme Court

Consent award cannot be the basis to determine compensation in other acquisition, especially, when there are other evidences on record: SC

Supreme Court: The bench of MR Shah* and BV Nagarathna , JJ has held that a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record.

The Court was dealing with a case relating to a land acquired for improvement of Ranganathittu Bird Sanctuary. The Land Acquisition Officer passed an award fixing the market value of the acquired land @ Rs.21,488/- per guntha. The Reference Court enhanced the amount of compensation to Rs.30,49,200/- per acre, i.e., Rs.76,230/- per guntha. The original claimant preferred first appeal before the Karnataka High Court seeking enhancement of the amount of compensation. Relying on a consent award and thereafter on “guesswork”, by the impugned judgment and order the High Court enhanced the amount of compensation to Rs.40 lakhs per acre with all consequential statutory benefits.

The Supreme Court noticed that the consent award relied upon by the High Court was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. However, in the present case, Section 4 notification was issued in the year 2008, i.e., three years before the land acquired in the consent award in question.

Hence, it was held that the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some “guesswork”.

Even otherwise, the Court held that the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition.

“In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation.”

[Special Land Acquisition Officer v. N. Savitha, 2022 SCC OnLine SC 339, decided on 22.03.2022]

*Judgment by: Justice MR Shah

Case Briefs High Courts

Utt HC | Irrespective of the personal rights of a person or a community, it can under no set of circumstances, override the rights or need of the defence of the country; Petition dismissed

Uttaranchal High Court: Sharad Kumar Sharma, J. dismissed a writ petition which involved the isuue pertaining to regulating the frontier borders of the country, adjoining to the ‘Line of Actual Control’, which adjoins and shares the boundary lines of our neighbouring country, China, which is approximately about 20 to 25 Kms. only away from the land, in dispute, which is proposed to be acquired for the purposes of meeting out the defence need of the ITBPF, i.e. ITBP.

The Court identified the issue as to whether despite of there being certain limited statutory protection; having being granted to a specified class of reserved community, i.e. the Scheduled Tribes, whether their personal rights, if it is, at all prevailing under law, would prevail over the right and interest of the nation, i.e. our Motherland, particularly, when it calls for defending the critical and strategic border of our Nation, in order to have preparedness, to meet any unprecedented insurgencies or army aggression, by the neighbouring county China.

The petitioners who are the residents of the village “Milam”, where the land in dispute is situated and which is proposed to be acquired for defence purposes. The petitioners contended that since they belonged to a Scheduled Tribes i.e. “Bhotia”, which in itself is a class of Tribes protected by the Constitution of India, as well as, under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be called as Act of 2013), their land ought not to have been acquired, even for the purposes of meeting out the requirement of the defence personnel, as because of their self acclaimed immunity, which they have claimed to have vested in them, in the light of the provisions contained under Section 40 to be read with Section 41 of the Act of 2013.

The Court observed that if the purpose of acquisition, which has been shown in the impugned Notification of 1st August, 2015, itself is taken into consideration, it is exclusively intended to meet the emergent need, for the purposes of establishment of the frontier chauki, i.e. Border Out Post (in short BOP), in Village Milam for the 14th Wing of ITBP. The Court was of the view that defence purposes of the country acquires the drivers seat, and would be predominantly overriding all the restrictive intentions of the Act of 2013, since being contrary to the constitutional intention, for protection of individual rights or even for a right of a class of Society, because no individual rights or even for that matter even public rights, can be at any moment be taken to be the superior rights, than to the right of defence of the Country, because of which, we all citizens are thriving peacefully, because our frontiers areas of the Country, are in the safe hands of our gallant army and para military personnels.

The Court further opined that the area of hearing of objections, under the different heads, which had been provided therein under Section 15 of the Act of 2013, will not be attracted or have its applicability, because the purpose herein as expressed in the notification of 08.08.2015, was for establishment of Border Out Post, adjoining to the Line of Actual Control, would not be an aspect, which at all could be left open for speculations and assessment by the executive or administrative authorities, because it could be best and with utmost perfection be only scrutinized by the defence forces authorities, to suit their need of deployment of armed personnel or establishment of their border out posts, which cannot be left open to be assessed by the executive. The Court relied on the judgment of Supreme Court in Citizens for Green Doons v. Union of India, 2021 SCC OnLine SC 1243 where necessity of the defence of the country was considered in detail. The court further discussed plethora of judgments in relation to the matters of acquisition of land and found that in the present case since there is an imminent threat nor the case has been projected by the petitioners that they would be deprived of an adequate compensation to be made payable to them as per the provisions of the said Act, the aforesaid principles and the safeguards taken by the Supreme Court in the judgements will come to the rescue to the State to apply the theory of ‘eminent domain’ when there is a deprivation of the property, which has been saved by Article 300A of the Constitution of India.

The theory of “eminent domain” grants an exclusive and inherent dominant power with the Government, which is the supreme owner of any land falling within the territory of the Nation, to take over the land and property, though under the terms and conditions of the given set of law, in order to meet out the emergent country requirement, due to any army aggression, army preparedness to face any sudden enemy insurgency, National calamity or other areas of such emergent need of the country and for the country, where time always plays an important pivotal role and where it is exclusively only the need of the country at large, which is to be considered.

Court was of the view that it could only be assumed to a citizen when they are secured when the country’s defence structure and its strength and its preparedness to meet any sudden, military crisis is augmented by providing, its defence personnel or any other such agencies with sufficient infrastructural facilities, and particularly, at the strategic point, like the one, in question, where India is sharing an international border, which is hardly 20 to 25 km. away from the land in question, adjoining to the Line of Actual Control. Since the land is being acquired for the defence needs, this Court was of the view, that irrespective of whatsoever protection has been marginally granted by the Statute, it cannot be compromised under any set of circumstances to mitigate the defence need of the country, and particularly, when as per the ratios dealt with above, the petitioners right as envisaged by Article 300A are still protected.

The writ petition was dismissed.[Heera Singh Pangtey v. State of Uttarakhand, 2022 SCC OnLine Utt 149, decided on 04-03-2022]

Mr T.A. Khan, Senior Advocate, assisted by Mr Ravi Shankar Kandpal, Advocate, for the petitioners.

Mr V.D. Bisen, Brief Holder, for the State of Uttarakhand.

Mr Rakesh Thapliyal, Assistant Solicitor General, assisted by Mr Pankaj Chaturvedi and Mr Lalit Sharma, Standing Counsel, for the Union of India

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs High Courts

MP HC | What would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area? [NH- 148N land acquisition]

Madhya Pradesh High Court: The Division Bench of Vivek Rusia and Rajendra Kumar Verma, JJ. took up a bunch of petitions which had similar facts that the petitioners were owners of agricultural land that came under the acquisition for construction of 12 lanes Delhi-Mumbai Expressway i.e. NH-148N under the provisions of the National Highways Act, 1956 (‘the NH Act of 1956’).

The petitioners being the landowners submitted objections before the competent authority i.e. SDO (Revenue). The competent authority in pursuant to sub-section 1 of section 3D of the NH Act submitted its report to the Central Government. Thereafter Central Government had published a notification under section 3D of the NH Act on 22-12-2018 that the land should be acquired for the construction of NH 148N i.e. the purpose mentioned in section 3A(1) of the NH Act. By virtue of sub-section (2) of section 3D of the NH Act the land has been vested in the Central Government. Proceedings for determining the compensation payable to the landowners under the provisions of the new Land Acquisition Act i.e. The Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 (‘the Act of 2013’) begun thereafter.

The controversy involved in these petitions was as to what would be an appropriate factor by which market value of land was to be multiplied to assess the compensation in the case where the land was situated in the rural area?

It was noted that in the present case, all the lands of the landowners were situated within the rural area. In the case of the rural area, the factor by which the market value was to be applied would be between 1.00(one) to 2.00(Two) based on the distance of the project from the urban area, as may be notified by the appropriate Government.

The Court reiterated that the Central Government has acquired the land of petitioners and others for NHAI for the construction of the national highway. Under section 3A of the NH Act if the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.

The national highway is a central Government project undertaken by the NHAI for which the land situated in the State of M.P. has been acquired, meaning thereby for the project of central Government land situated in the State of M.P. are being acquired. As per the definition under section 2(b) of the Act of 2013 the State Government would be the appropriate Government in relation to the acquisition of land situated within the territory of State. The Central Government would be the appropriate government in relation of acquisition of land situated within Union territory except for Pondichery and in relation to acquisition of land for the public purpose in more than one State, the Central Government shall consult with the concerned State Government or the Union territory and under section 2(e)(v) of the Act of 2013 in relation to the acquisition of land for the purpose of the Union, as may be specified by notification, the appropriate Government would be the Central Government.

The Court found that the Central Government has issued a notification prescribing the factor 2.00(two) whereas State of M.P by way of impugned notification dated 29-9-2014 had fixed the multiplier 1.00(one) but the NHAI which was the instrumentality of the Central Government, therefore, by virtue of 2(e)(v) of Act of 2013 the Central Government shall be the appropriate Government, hence the notification dated 9-2-2016 issued by the Central Government would apply.

Since the petitioners had already preferred appeals before the Arbitrator u/s 3G(5), therefore, the Court stated that it is for the Arbitrator to consider and decide the multiplier in view of the findings given hereinabove instead of setting aside the award and remanding the matter to the competent authority.[Badrilal Dhakad v. Union of India, 2022 SCC OnLine MP 280, decided on 27-01-2022]

o Shri Piyush Mathur Senior Advocate with Shri Harshwardhan Sharma for the petitioners.

o Shri Jasneet Singh Hora counsel for the petitioners.

o Smt.Anita Sharma and Shri Tejas Sharma for the National Highway Authority.

o Shri Vivek Dalal AAG and Shri Aditya Garg, GA for the respondent/State.

Suchita Shukla, Editorial Assistant has reported this brief.

Case Briefs Supreme Court

No Corporation/Planning Authority can be compelled to acquire an unusable or unsuitable land and be compelled to pay compensation to landowners: SC

Supreme Court: In a case where the Bombay High Court had directed Kolhapur Municipal Corporation to acquire an unusable land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and compensate the landowners, the bench of MR Shah* and BV Nagarathna, JJ has held that when land is found to be unsuitable and unusable for the purposes for which it has been reserved, Corporation cannot be compelled to pay a huge compensation for such a useless and unsuitable land.

The dispute is with respect to the land ad-measuring 3 Hectors and 65 Ares in Kolhapur. The development plan for the City of Kolhapur was sanctioned on 18.12.1999. Different portions of the land in question were reserved in the sanctioned development plan for various public purposes namely, parking, garden, extension of sewage treatment plant etc. By Resolution dated 18.02.2012, the General Body of the Municipal Corporation resolved to acquire the said property and accordingly on 17.04.2012, a proposal was submitted by the Municipal Corporation to the State Government for compulsory acquisition of the subject property.

However, the subject land is flood affected through which a rivulet named ‘Jayanti Nala’ passes, making it unsuitable for the public purposes for which it was reserved. Further, it was argued that unless and until the substantial development is carried out, the land in question was not usable at all. The reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season.

As the land in question was not acquired and/or used for the public purposes for which the same was reserved under the sanctioned development plan, the original landowners served a notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966.

It is also to be noted that the reservation had lapsed as a mere Resolution being passed by the General Body of the Corporation to acquire the land and sending a letter to the Collector to acquire the land, without any further steps being taken under the Land Acquisition Act, namely no declaration under section 6 thereof being issued within a period of one year from the receipt of the said purchase notice, would result in the reservation as deemed to have lapsed.

The Supreme Court observed that once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted).

“Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.”

The Court also held that the High Court was not justified in directing the Municipal Corporation to acquire the land in question and to issue a declaration under Section 19 of the 2013 Act and to pay compensation under the Act of 2013 as right from the very beginning it was stated in the counter before the High Court that the land in question was not suitable and/or usable for the purposes for which it has been reserved.

“… as such at the time when the planning was made and the land in question was put under reservation for public purposes, a duty was cast upon the Planning Officer to consider whether the land, which will have to be acquired and for which the compensation is to be paid is really suitable and/or usable for the public purposes for which it is reserved. Otherwise, every landowner will see to it that though his land is not suitable and/or not very valuable, is put under reservation and the same is acquired by the Corporation and/or the Planning Authority and thereafter he is paid the compensation.”

It was, hence, held that no Corporation and/or the Planning Authority and/or the Appropriate Authority can be compelled to acquire the land which according to the Corporation/Planning Authority is not suitable and/or usable for the purposes for which it is reserved. Any other interpretation would lead to colourable and fraudulent exercise of power and cause financial burden on the public exchequer.

Under the Act of 2013, the Corporation was required to pay a huge sum of Rs. 77,65,12,000/- by way of compensation under the Act of 2013. According to the Corporation, when the entire annual budget for acquisition was Rs. 21 crores, it was beyond their financial position and/or budgetary provision to pay such a huge compensation, that too, for the land which is not suitable and/or useable for the purposes for which it has been reserved.

In such circumstances, the Court observed that while under MRTP Act, the financial constraint cannot be the sole consideration to acquire the land for the purposes for which it has been reserved namely public purposes, however, at the same time, when such a huge amount of compensation is to be paid and there would be a heavy financial burden, which as such is beyond the financial capacity of the Corporation, such a financial constraint can be said to be one of the relevant considerations, though not the sole consideration before embarking upon reservation of a particular extent of land for development.

The Court also held that a landowner is entitled to TDR in lieu of compensation with respect to the land reserved provided the land to be acquired is suitable and/or usable by the Corporation. However, once it is found that the land is not usable and/or suitable for the purposes for which it has been reserved, the Corporation cannot still be compelled and directed to acquire the land and grant TDR in lieu of amount of compensation.

[Kolhapur Municipal Corporation v. Vasant Mahadev Patil, 2022 SCC OnLine SC 179, decided on 14.02.2022]

*Judgment by: Justice MR Shah

Counsels

For Corporation: Senior Advocate Aparajita Singh

For Original Landowners: Senior Advocate C.U. Singh

Case Briefs Supreme Court

Lok Adalat Award cannot be a basis for redetermination of the compensation under Section 28A of the LA Act: SC

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ was called upon to decide whether the Award passed by a Lok Adalat under 0 can form the basis for redetermination of compensation as contemplated under Section 28A of the Land Acquisition Act, 1894. The Court held that an application under Section 28A of the LA Act cannot be maintained on the basis of an award passed by the Lok Adalat under Section 20 of LSA Act.

Scheme of Section 20 of the LSA Act

The jurisdiction of the Lok Adalat under Section 20 is to facilitate a settlement of disputes between the parties in a case. It has no adjudicatory role. It cannot decide a lis. All that it can do is to bring about a genuine compromise or settlement. Sub-Section (4) of Section 20 is important insofar as the law giver has set out the guiding principles for a Lok Adalat. The principles are justice, equality, fair play and other legal principles. The significance of this provision looms large when the Court bears in mind the scheme of Section 28A of the Act.

Scheme of Section 28A of LA Act

Section 28A contemplates a redetermination of compensation under an award passed under Part III. Section 23 deals with the matters to be taken into consideration. Various aspects including the market value on the date of the notification under Section 4(1) are indicated. The elements of Section 23 are not in consonance as such with the guiding principles set out in Section 19(4) of the LSA Act which are to guide a Lok Adalat. When the Court deals with the matter under Section 18, in other words, it is bound to look into the evidence and arrive at findings based on the evidence applying the legal principles which have been enunciated and arrive at the compensation. While it may be true that there is reference to ‘other legal principles’ in Section 19(4) of the LSA Act, the Lok Adalat also can seek light from the principles of justice, equity, and fair play. The Lok Adalat by virtue of the express provisions is only a facilitator of settlement and compromise in regard to matters which are referred to it. It has no adjudicatory role.

Analysis

A plea founded on estoppel arising out of a consent decree or from an Award passed by a Lok Adalat which can perhaps be even likened to a consent decision cannot be the basis for redetermination of the compensation. What Section 28A indeed insists is on decision by a Civil Court as defined in Section 2(l). In other words what is made the only basis for invoking Section 28A of the Act is an adjudication by the Court as defined in the Act. The plea of estoppel which, ordinarily, arises from a consent decree or Award passed by the Lok Adalat which, does not involve any adjudication by a Court, would hardly suffice. The estoppel which is referred to by this Court applies as between the parties to the consent decree.

An Award passed by the Lok Adalat under LSA Act is the culmination of a non-adjudicatory process. The parties are persuaded even by members of the Lok Adalat to arrive at mutually agreeable compromise. The Award sets out the terms. The provisions contained in Section 21 by which the Award is treated as if it were a decree is intended only to clothe the Award with enforceability. In view of the provisions of Section 21 by which it is to be treated as a decree which cannot be challenged, undoubtedly, by way of an appeal in view of the express provisions forbidding it, unless it is set aside in other appropriate proceedings, it becomes enforceable. The purport of the law giver is only to confer it with enforceability in like manner as if it were a decree.

On the argument that by virtue of this legislative device, the award of the Lok Adalat passed in these cases by the Reference Court under Section 18 executing the Lok Adalat must be treated as an order passed by the Court under Section 28A of the Act, the Court said,

“Can the Court be oblivious to the plain language of the statute? Can we ignore the voice of the legislature when it is clear and unambiguous? Section 28A figures in Part III of the Act. It has a heading. The heading reads as ‘Redetermination of the amount of compensation on the basis of the award of the Court’. The very opening words in our view deal a fatal blow to the very premise of the respondent’s contention. An award under Part III of the Act commences with a reference under Section 18. The Court proceeds to adjudicate the reference in particular by bearing in mind the matters which are to be considered under Section 23 of the Act.”

The award which is passed by the Lok Adalat cannot be said to be an award passed under Part III. It is the compromise arrived at between the parties before the Lok Adalat which culminates in the award by the Lok Adalat. In fact, an award under Part III of the Act contemplates grounds or reasons and therefore, adjudication is contemplated and Section 26(2) of the Act is self-explanatory.

“The Award passed by the Lok Adalat in itself without anything more is to be treated by the deeming fiction to be a decree. It is not a case where a compromise is arrived at under Order XXIII of the Code of Civil Procedure, 1908, between the parties and the court is expected to look into the compromise and satisfy itself that it is lawful before it assumes efficacy by virtue of Section 21. Without anything more, the award passed by Lok Adalat becomes a decree. The enhancement of the compensation is determined purely on the basis of compromise which is arrived at and not as a result of any decision of a ‘Court’ as defined in the Act.”

Hence, an Award passed under Section 19 of the 1987 Act is a product of compromise. Sans compromise, the Lok Adalat loses jurisdiction. The matter goes back to the Court for adjudication. Pursuant to the compromise and the terms being reduced to writing with the approval of the parties it assumes the garb of an Award which in turn is again deemed to be a decree without anything more.

[NOIDA v. Yunus, 2022 SCC OnLine SC 138, 03.02.2022]

*Judgment by: Justice KM Joseph

Counsels

For appellant: Anil Kaushik, learned counsel for the appellant.

For respondents: Senior Advocates Dhruv Mehta and V. K. Shukla

Case Briefs Supreme Court

Land Acquisition| Provisions of 2013 LA Act not applicable for the acquisitions made under the BDA Act

Supreme Court: The bench of SA Nazeer* and Sanjiv Khanna, JJ has clarified the position of law on applicability of the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 to acquisitions made under the Bangalore Development Authority Act, 1976 and has held that since LA Act has been incorporated into the BDA Act so far as they are applicable, the provisions of 2013 Act are not applicable for the acquisitions made under the BDA Act.

The primary object of the BDA Act is to carry out a planned development and acquisition, is merely incident of such planned development. It is also clear that the provisions of the LA Act would be attracted only insofar as they are applicable to the BDA Act. Where there are specific provisions under the BDA Act, the provisions of the LA Act will not be attracted. The BDA Act has provided a complete process for determination of rights. For the purpose of the claims in regard to the matters which are not specifically dealt with in the BDA Act, reference to the LA Act in terms of Section 36 has been made.

Sub-section (1) of Section 36 of BDA Act read,

“36. Provisions applicable to the acquisition of land otherwise than by agreement – (1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by the provisions, so far as they are applicable, of the Land Acquisition Act. 1894.”

Further, Sub-section (3) of Section 36 of the BDA Act states that after the land vests in the Government under Section 16 of the LA Act, then the Government upon payment of cost of acquisition and upon the Authority agreeing to pay any further cost which may be incurred on the acquisition, shall transfer the land to the Authority whereupon it shall vest in the Authority.

The Court observed that the intention of the Legislature is to take recourse for the provisions of the LA Act to a limited extent and subject to the supremacy of the provisions of the BDA Act. This is evident from the expression “so far as they are applicable” employed in sub-section (1) of Section 36.

Further, the 2013 Act repeals only the LA Act and not any other Central or State enactment dealing with acquisition. Therefore, what is sought to be saved under Section 24 of the 2013 Act is only acquisitions which had been initiated under the LA Act and not those acquisitions which had been initiated under any other Central or State enactment. The expression contained in Section 24 of the LA Act cannot be given extensive interpretation by adding words into the provision, in the absence of the provision itself giving rise to any such implication.

The Court explained that,

“Incorporation of an earlier Act into the later Act is a legislative device for the sake of convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the later Act. Once the incorporation is made, the provisions of incorporated statute become an integral part of the statute in which it is transferred and thereafter there is no need to refer to the statute from which incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute.”

Therefore, the provisions of the LA Act continue to apply for acquisitions made in the BDA Act so far as they are applicable as it is a legislation by incorporation having regard to Section 36 of the BDA Act.

The Court was, hence, of the view that 2013 Act would not regulate the acquisition proceedings made under the BDA Act.

[Bangalore Development Authority v. State of Karnataka, 2022 SCC OnLine SC 69, decided on 20.01.2022]

*Judgement by: Justice SA Nazeer

Case Briefs Supreme Court

“Contempt is between contemner and the Court”; SC cites R.N. Dey’s case to hold aggrieved party has no right to insist that court should exercise contempt jurisdiction

Supreme Court: The Division Bench of R. Subhash Reddy* and Hrishikesh Roy, JJ., held that once the fresh notification is issued by the State for land acquisition, no cause of action survive on previous notification and actions taken therein, when that proceeding is declared lapsed. Quoting the case of R.N. Dey v. Bhagyabati Pramanik, (2000) 4 SCC 400, the Bench stated,

“Discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of court’s dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.”

These contempt petitions were filed under Section 12 of the Contempt of Courts Act, 1971 alleging that the respondents had wilfully and deliberately violated directions issued by the Court in the order dated 17-08-2015, 29-08-2016 and 05-01-2017.

Background

The land admeasuring 29.38 acres belonging to the petitioner was acquired under provisions of the Land Acquisition Act, 1894; the notification was issued under Section 4(1) of the Act at the first instance on 25-03-1981. Pursuant to which the said land was subsequently declared as a protected forest under Section 29 of the Indian Forest Act, 1927. However, as no award was passed pursuant to the notification issued under Section 4(1) of the Act, a fresh notification under Section 4(1) of the Act was issued on 24-05-1995.

Litigation History

The subsequent notification was challenged before the Patna High Court, wherein the High Court held that notwithstanding the delay in passing the award, possession of the land as well as title vested in the respondent State. Noticeably, during the pendency of the said petition an award was passed on 27-09-2006, purportedly pursuant to 1981 notification. Consequently, the petitioners approached the Supreme Court with their grievance, wherein, the Court held that the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 would apply as much as State had not progressed beyond making a declaration under Section 6 of the Act, pursuant to subsequent notification. The land acquisition proceedings were declared lapsed by the Court, and the respondent State was directed to initiate fresh acquisition proceedings or to take any other action available under law.

Alleging wilful and deliberate violation of the directions issued in the aforesaid order, contempt petitions were filed, however, noticing that fresh notification was issued during the pendency of the contempt petitions and the possession of the land was already undertaken by authority, the petition was disposed of with the direction that the petitioner shall be paid the amount of compensation as per the provisions of Section 40 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Grievances of the Parties

The petitioners submitted that at first instance land was acquired by invoking urgency clause, and in spite of directions for payment of compensation by following the provisions under Section 40 of the 2013 Act, respondents had passed the award without adhering to the same and the acquired land was being used for construction of office and residential buildings, and contrary to various directions issued by the Court, land was treated as agricultural forest land, a concept unknown to law.

On the other hand, the State contended that the Court had directed that a fresh notification would be issued wherein; the Court had not expressed any opinion on the nature of the land etc. and left open all the issues. It was the case of the respondents that if the petitioner was aggrieved by the determination of compensation, it was always open to avail remedy under Section 64 of the 2013 Act, however, without availing such remedy under guise of contempt, the petitioner was trying to enlarge the scope of directions issued by the Court.

Factual Analysis

Noticeably, consequent to the Court orders, the respondents-State had issued a fresh notification under Section 11 of Act, 2013; pursuant to award inquiry was conducted. Therefore, rejecting the contention of the petitioners that the respondent-state had not granted the benefits as per Section 40 of the 2013 Act, the Bench expressed,

“It is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise.”

Reliance was placed by the Bench on J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291, wherein it was that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Similarly, in R.N. Dey’s case it was held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it was observed that weapon of contempt is not to be used in abundance or misused.

Therefore, in view of the last notification issued under Section 11 of the 2013 Act on 14-02-2020 and the award passed by the respondent authorities, the Bench opined that it could not be said that respondents had deliberately and intentionally violated any directions issued by the Court, attracting the provisions of Contempt of Courts Act, 1971. On the submissions of the petitioner that land was wrongly categorized in the award for fixation of market value, the Bench opined that while it was open to the petitioner to avail the remedies available in the Act for proper determination of compensation,

“Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court.”

Conclusion

Consequently, the Bench held that while it was open for the petitioner to pursue remedies available in law, there was no contempt as alleged. Accordingly, the contempt petitions were dismissed. The Bench further clarified that it had not expressed any opinion either on the categorization of the land or on the determination of market value in the award.

[Soorajmull Nagarmull v. Brijesh Mehrotra, 2021 SCC OnLine SC 1252, decided on 14-12-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

For the Petitioners: A.M. Singhvi and Mr. Gopal Sankarnarayanan, Senior Advocates

For the Respodnents: Ranjit Kumar, Senior Advocate

*Judgment by: Justice R. Subhash Reddy

Case Briefs Supreme Court

Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished: SC

Supreme Court: In a case where the inquiry under Section 5A of the Land Acquisition Act, 1894 was dispensed with despite there being no urgency, the bench of KM Joseph* and S. Ravindra Bhat, JJ, directing that the property be returned back to the appellants, has held that Section 5A of the Act guarantees a right to the person interested in the property which was the only statutory safeguard to stave off of a compulsory acquisition of his property and hence,

“In the ultimate analysis as with any other decision a balancing of conflicting interests is inevitable. The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

Factual Background

A notification under Section 4(1) of the Act dated 8.10.2004 coupled with notification under 17(4) was issued in regard to 52.361 hectares of land for the construction of a residential colony under the name of Bulandshhar Khurja Development Authority, Bulandshehar. Declaration under Section 6 of the Act was published on 7.10.2005.

While the appellants did not raise any objection as the requirement of Section 5A of the Act stood dispensed with, they argued before the Court that despite the urgency clause being invoked, the possession was taken only in January 2006. Further, it was stated that till date on the spot neither any construction under the residential scheme has been started nor it ‘appears to be’ in the near future. Hence, it was argued that there was no urgency to dispense with the inquiry under Section 5A of the Act.

Exercise of power under Section 17 (4) be invoked to dispense with the requirement under Section 5A

Section 5A of the Act guarantees a right to the person interested in the property which was the only statutory safeguard to stave off of a compulsory acquisition of his property. The power under Section 17 (4) is discretionary. Being a discretion it must be exercised with due care. It is true that if there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision, then the court would adopt a hands-off approach.

“What is required of the authority is to form a subjective opinion. This does not mean that the opinion can be whimsical or capricious. There must be materials before the authority. The materials must be relevant. The authority must apply his mind to the material. This is apart from the requirement that action must not be malafide.”

Further, undoubtedly the purpose must be a public purpose. But merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end. He must be satisfied that there is real agency such that the invaluable right vouchsafed to a person to ventilate his grievances against the acquisition is not unjustifiably extinguished.

Manner in which a challenge to a notification under Section 17(4) must be approached

When a challenge is made to the invocation of power under Section 17 (4) the writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the state must be laid before the court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17 (4) must be established in the wake of a challenge.

On an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power under Section 17 (4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.

Decision on Facts

The Court took note of certain facts that showed that there was no urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause. The notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. Further, the declaration under section 6 came to be 60 issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. What finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier.

Therefore, in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, it was held that the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified.

The Court, hence, directed that the property be returned back to the appellants.

[Hamid Ali Khan v. State of UP, 2021 SCC OnLine SC 1115, decided on 23.11.2021]

Counsels:

For appellant: Advocate Abhay Kumar

For State: Senior Advocate Ravindra Raizada

For Second Respondent: Advocate Ravindra Kumar

*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Case Briefs Supreme Court

Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical: SC

Supreme Court: In an important ruling on Land Acquisition and Requisition law, the bench of AM Khanwilkar and Sanjiv Khanna*, JJ has held that Section 25 of the 2013 Act applies to awards made under Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and the period of limitation of twelve months would commence from 1st January 2014.

“In cases covered by clause (a) to Section 24(1) of the 2013 Act, the limitation period for passing/making of an award under Section 25 of the 2013 Act would commence from 1st January 2014, that is, the date when the 2013 Act came into force. Awards passed under clause (a) to Section 24(1) would be valid if made within twelve months from 1st January 2014.”

Issue

Whether the two-year period specified under Section 11A of the Land Acquisition Act, 1894 will apply even after the repeal of the 1894 Act, or the twelve-month period specified in Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 will apply for the awards made under clause (a) of Section 24(1) of the 2013 Act?

Discussion

Interpretation of “all the provisions of this Act relating to the determination of compensation” under clause (a) to Section 24(1) of the 2013 Act

Generally, the expression ‘relating to’ when used in legislation has to be construed to give effect to the legislative intent when required and necessary by giving an expansive and wider meaning. Keeping this in mind, the Court noticed that the words “all the provisions of this Act relating to the determination of compensation” must not be imputed a restricted understanding of the word ‘relating’ only to the substantial provisions on calculation of compensation, that is, Sections 26 to 30 of the 2013 Act. Rather, the expression should be given an expansive meaning so as to include the provision on limitation period for calculation of compensation, that is, Section 25 of the 2013 Act.

Further, the said clause would apply only if the period for making of an award had not ended and time was available as on 1st January 2014. Where and if the period for making of the award had already lapsed before 1st January 2014, clause (a) to Section 24(1) would not apply so as to deprive and deny the vested rights which have already accrued in favour of the landowners.

“Section 25 is a rule of procedure immediately following Section 24 and a part of fasciculus of “all the provisions”, from Sections 25 to 30, “relating to determination of compensation”. Hence, the expression “all the provisions relating to the determination of compensation” under the 2013 Act will encompass Section 25 of the 2013 Act.”

The determination of compensation is never simple. It is a complex factual and legal exercise.

Two-year period for making of an award in terms of Section 11A of the 1894 Act – If Practical

Given the object and purpose behind Sections 24, and 26 to 30 of the 2013 Act, the Court noticed that practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

This would mitigate against the underlying legislative intent behind prescription of time for making of an award in respect of saved acquisition proceedings initiated under the repealed 1894 Act, which is two-fold:

to give sufficient time to the authorities to determine compensation payable under the 2013 Act; and
to ensure early and expedited payment to the landowners by reducing the period from two years under Section 11A of the 1894 Act to twelve months under Section 25 of the 2013 Act.

In case of declarations issued in January 2012, on application of Section 11A of the 1894 Act, the time to determine compensation under the 2013 Act would vary from a day to a month, and while in cases where the declarations were issued within twelve months of the repeal of the 1894 Act, the landowners would be at a disadvantage as an award beyond the twelve-month period specified in Section 25 of the 2013 Act would be valid.

In the first set of cases, given the onerous factual and legal exercise involved in determination of compensation and the need to issue notification under Section 26(2) of the 2013 Act, publication of the awards would be impractical. Hasty and incorrect awards would be deleterious for the landowners.

If the awards are not pronounced, the acquisition proceedings would lapse defeating the legislative intent behind Section 24(1)(a) of the 2013 Act to save such proceedings.

Exercising it’s choice to arrive at a just, fair and harmonious construction consistent with the legislative intent, the Court noticed that a rational approach so as to further the object and purpose of Sections 24 and 26 to 30 of the 2013 Act is required.

“We are conscious that Section 25 refers to publication of a notification under Section 19 as the starting point of limitation. In the context of clause (a) to Section 24(1) of the 2013 Act there would be no notification under Section 19, but declaration under Section 6 of the 1894 Act. When the declarations under Section 6 are valid as on 1st January 2014, it is necessary to give effect to the legislative intention and reckon the starting point. In the context of Section 24(1)(a) of the 2013 Act, declarations under Section 6 of the 1894 Act are no different and serve the same purpose as the declarations under Section 19 of the 2013 Act.”

Conclusion

Consequently, the Court held that in cases covered by clause (a) to Section 24(1) of the 2013 Act, the limitation period for passing/making of an award under Section 25 of the 2013 Act would commence from 1st January 2014, that is, the date when the 2013 Act came into force. Awards passed under clause (a) to Section 24(1) would be valid if made within twelve months from 1st January 2014. This dictum is subject to the caveat stated that a declaration which has lapsed in terms of Section 11A of the 1894 Act before or on 31st December 2013 would not get revived.

(i)Section 25 of the 2013 Act would apply to the awards made and published under Section 24(1)(a) of the 2013 Act.

(ii) The limitation period for passing/making of an award under Section 24(1)(a) in terms of Section 25 of the 2013 Act would commence from 1st January 2014, that is, the date when the 2013 Act came into force.

(iii) Period during which the Court order would inhibit action on the part of the authorities to proceed with the making of the award would be excluded while computing the period under Section 25 of the 2013 Act.

[Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation v. Mahesh, 2021 SCC OnLine SC 1034, decided on 10.11.02021]

*Judgment by: Justice Sanjiv Khanna

Know Thy Judge | Justice Sanjiv Khanna

Case Briefs Supreme Court

Supreme Court directs NOIDA to pay Rs 36 crore compensation in a land acquisition dispute for illegally taking over excess land

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 Briefs Supreme Court

Supreme Court upholds 2019 Act validating Tamil Nadu Land Acquisition Laws; Explains legislative competence to pass a retrospective validating Act

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 –

amend the State enactments to provide for different provisions of compensation to bring them in line with the law made by the Parliament;
add fresh provisions relating to resettlement, rehabilitation and infrastructure amenities at par with the 2013 Act;
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
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 Briefs Supreme Court

“Government cannot acquire its own land”. Proceedings under LA Act, 1894 cannot be reopened once the possession has been transferred: SC

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

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The Controversy Around “Section 24” of Land Acquisition Act, 2013

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†Siddharth Batra, Advocate on Record, Supreme Court of India. Email: siddharth.batra@satramdass.com

†† Chinmay Dubey, Associate Satramdass B & Co., Delhi Email: chinmay.dubey@satramdass.com

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*Judgment by: Justice MR Shah

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*Judgment by: Justice Hemant Gupta

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110 Reports from 20 High Courts

Allahabad High Court

Money Laundering

Right to Approach the Court

Bail

Andhra Pradesh High Court

Arms Act

Wilful Negligence

Vakalat and Written

Bombay High Court

Child Marriages

Decorum of Court

Compassionate Appointment

Religious Verses

Eviction

Arbitration and Conciliation Act

Land Acquisition

Pension

Partition

Maintenance

“No Confidence”

Motor Accident Case

Society

Abortion

Custody of Child

Partnership Act

Constitutional Validity of S. 29A of Consumer Protection Act

Lawyer-Client Relationship

Sale Deed

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Competition Commission of India

Alimony

Properties

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Arbitration and Conciliation Act

Rape

Indian Forest Act

GST Act

Chhattisgarh High Court

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Unlawful Detention

Section 304 B of Penal Code, 1860

Will

Criminal Trial

Abduction

Delhi High Court

Maintenance

Rule of Law

Framing of Charge