High Court of Punjab and HaryanaCWP/26672/2015dismissed

Harminder Singh v. State Of Haryana & ORS

2020-12-01The Chief Justice,Mr. Justice Arun Palli7 pages

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The petitioner has challenged in this writ petition the notification dated 30.05.2005 and 22.05.2006 issued under section 4 and 6 of the Land Acquisition Act, 1894 followed by the award dated 16.07.2007 for the acquisition of the land for the public purpose namely, development of residential and commercial area for sectors 22, 23 and 24 part, Jagadhari. The petitioners are seeking lapsing of the acquisition proceedings under section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred as Act of 2013).

Before adverting to the facts of the case, it is worthwhile to mention that the present petition was kept pending awaiting the decision of the Constitution Bench of the Hon'ble Supreme Court on the interpretation of section 24(2) of the Act of 2013, which has been decided in Indore Development Authority v. Manoharlal and others AIR 2020 SC 1496. Accordingly this petition has now been taken up for

hearing for the final disposal in terms of the principles enunciated in Indore Development Authority (Supra). The guidelines/ principle laid down by the Hon'ble Court in concluding paragraph of the judgment are reproduced herein below:

'....1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed. 3.

The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 4.

The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or nondeposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition'.

3. The petitioner is claiming the lapsing of acquisition proceedings on the ground that neither the possession of the land has been taken nor the compensation has been paid, therefore it is imperative to examine

both the aspects in the light of the decision in Indore Development Authority (Supra).

Mr. Ankur Mittal, Additional Advocate General, Haryana submits that Apex Court has held the recording of panchnama as the valid mode of taking possession of the acquired land and in the case at hand as well the possession of the land in question was taken vide Rapat No. 892 dated 16.07.2007, therefore any person claiming to have been in possession of the land afterwards is only a trespasser in terms of the observations made in paras 244 and 245 of the judgment:

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5. Further as regards the aspect of the compensation, he submits that out of the total award amount of Rs. 35,67,91,537/-, an amount of Rs. 30,62,00,204/- has already been disbursed which amounts to 85.82% of the entire compensation amount and rest of the amount is lying deposited in the account of LAC.Therefore, in terms of para 363(7) of the judgment, the amount of compensation was duly tendered and therefore the obligation of the State to pay the compensation stands duly fulfilled.The reference can also be made to para 203 of the judgment wherein the Hon'ble Supreme has explained the meaning of paid used in section 24(2) of the Act of 2013:- 1*+'"

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In reference to the aforesaid, Mr. Mittal has further drawn our attention to the judgment of this Court in Sehdev Singh and others v. State of Haryana and others CWP no. 8788 of 2018, wherein this Court as far as the aspect of the compensation and possession is concerned, observed as follows while referring to the judgment in Indore Development Authority (Supra):- '......(d) As far as the aspect of compensation for the land acquired is concerned, the Hon'ble Supreme Court of India has categorically observed that the expression paid in the main part of section 24(2) of the Act of 2013 does not include a deposit of compensation in court.

What is required to be proved is that the compensation amount was tendered which has been explained in para 203 that the tendering of the amount would mean that the amount is made available to the landowner and that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalized for the default in making the payment. While referring to section 31(1), 31(2), 34 of the Act of 1894 and comparing them with the para materia provisions i.e. section 71 and 80 of the Act of 2013, the Hon'ble Apex Court has clarified that the only consequence of non-payment of compensation is to make the payment of interest as per section 34 of the Act of 1894.

Even the Hon'ble SC has further clarified that once the payment of compensation has been offered/tendered under section 31(1), the acquiring authority cannot be penalized for non-payment as the amount has remain unpaid due to refusal to accept by the landowner. To clarify it further, the Hon'ble SC has further observed that if a landowner has filed the reference for higher compensation he cannot claim that he was not paid the amount. (para 224 of the judgment) XXXXXXX XXXXXX (f) As regards the mode of taking possession, the Hon'ble Supreme Court had clarified that drawing of inquest report/ memorandum would mean that physical possession has been taken.

The law with regard to vesting of land has once again be reiterated to hold that once the possession has been taken under section 16 of the Act of 1894, the land vest in the State and there cannot be any divesting or lapsing. (para 244, 245 and 363(7) of the judgment.

Since for declaring the acquisition proceedings to have been lapsed, both the conditions mentioned in section 24(2) of the Act of 2013 needs to be fulfilled, in view of the aforesaid discussion none of them is satisfied as the possession of the land has been taken and the compensation has been paid in terms of paras 363(5) and 363 (7) of the judgment, therefore, the relief prayed for cannot be granted and the petition is thus, hereby dismissed. Pending applications also meet the same fate and the interim order if any stands vacated.

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