IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA WRIT PETITION NO.25729 OF 2017 (LA-RES) BETWEEN:
K.M.Chandrashekaraiah S/o K.M.Channabasavaiah Aged about 75 years, 6th Cross 4th Main, MCC ‘B’ Block Davangere – 577 001 (By Shri.B.M.Siddappa, Advocate) AND:
1. The Deputy Commissioner Chitradurga District Chitradurga – 577 501.
2. The Assistant Commissioner Chitradurga Sub-Division Chitradurga – 577 501.
... PETITIONER 3. The State of Karnataka By its Secretary Revenue Department (Land Acquisiiton-2 and Residential) Vidhana Soudha Bangalore – 560 001.
4. Shree Guru Thipperudra Swamy Temple Nayakanahatti, Challakere Tq-577 522 Chitradurga Dist., Rep. by its Executive Officer.
... RESPONDENTS (By Shri.Vijay Kumar A.Patil, AGA for R1 to R3) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India quash the 6(1) notification dtd.3.11.2010 issued by the R-3 which gazetted on 13.1.2011 vide Annex-H and further declare that the land acquisition proceedings as lapsed as per Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in so far it relates to Sy.No.219/1 situated at Nayakanahatti Village, measuring 1 acre 1 gunta belongs to the petitioner and etc.
This Writ Petition coming on for Preliminary Hearing, this day, the Court made the following:
ORDER Petitioner herein has assailed declaration and final notification issued under Section 6 of the Land Acquisition Act, 1894 dated 03.11.2010 (Annexure-H) and has sought for a declaration that the land acquisition proceedings have lapsed as per Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the 2013 Act’, for the sake of convenience) in so far as it relates to Sy.No.219/1 of Nayakanahatti Village, Challakere Taluk, Chitradurga District measuring 1 acre 1 gunta.
2. At the out set, it may be stated that the petitioner herein had preferred W.P.No.42144/2011 challenging the very same notification. The said Writ Petition was withdrawn by the petitioner on 06.06.2017 with liberty to file a fresh Writ Petition. On the strength of the said liberty, this Writ Petition has been preferred seeking the aforesaid reliefs.
3. Petitioner’s counsel contends that even though the award has been passed on 10.05.2011, possession of the schedule land has not been taken nor has the compensation amount been deposited. In the circumstances, under Section 24(2) of the Act, acquisition lapses. He relies upon two decisions of the Hon’ble Supreme Court in the case of THE WORKING FRIENDS CO-OPERATIVE HOUSE BUILDING SOCIETY LTD. V. STATE OF PUNJAB AND ORS. reported in 2015 AIR SCW 6487 and in the case of VIJAY LATKA AND ANOTHER VS. STATE OF HARYANA AND OTHERS reported in AIR 2016 SC 2584 in support of his contention.
4. Per contra, learned AGA appearing for respondent Nos.1 to 3 relies upon the judgment of the Hon’ble Supreme Court in the case of PUNE MUNCIPAL CORPORATION AND ANOTHER VS. HARAKCHAND MISIRIMAL SOLANKI AND OTHERS reported in (2014) 3 SCC 184 to contend that as per Section 24(2) of the Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, then such acquisition proceedings shall be deemed to have lapsed. He would submit that in the instant case award was made on 10.05.2011 and when the conditions stipulated under Section 24(2) of the Act have not been complied with by the petitioner, he would not be entitled to relief under the said provision.
5. Section 24 of the Act reads as under:-
“24. 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 (1 of 1894) — (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (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:
PROVIDED FURTHER that in computing the period referred to in this sub-section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a Tribunal for taking possession or such period where possession has been taken but the compensation lying deposited in a court or in any account maintained for this purpose shall be excluded.”
6. The said provision came up for consideration before the Hon’ble Supreme Court in the case of PUNE MUNICIPAL CORPORATION AND ANOTHER VS. HARAKCHAND MISIRIMAL SOLANKI AND OTHERS reported in (2014) 3 SCC 183. At Paragraphs 10 and 11, the Hon’ble Supreme Court has observed as under:-
“10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24(1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed.
11. Section 24(2) also begins with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under the 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied, viz; (i) physical possession of the land has not been taken or (ii) the compensation has not been paid; such acquisition proceedings shall be deemed to have lapsed. On the lapse of such acquisition proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act. The proviso appended to Section 24(2) deals with a situation where in respect of the acquisition initiated under the 1894 Act an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then all the beneficiaries specified in Section 4 notification become entitled to compensation under 2013 Act.”
7. On a plain reading of the said section, it would become apparent that Section 24(1) begins with a non-obstante clause in so far as anything contained in the said Act. Sub-Section 2 which also begins with a non-obstante clause is viz-a-viz an award being made under Section 11 of the Land Acquisition Act, 1894 and the proceedings under the said Act of 1894 would continue under the provisions as if the said Act has not been repealed. But for that two conditions have to be satisfied: firstly, the award must be made under Section 11 of the said Act, five years or more prior to the commencement of the 2013 Act which has commenced on 01.01.2014 and either, physical possession of the land has not been taken or, compensation has not been paid. If only both the conditions are satisfied, then the relief could be granted under sub-Section (2) of Section 24 of the Act to hold that there is a lapse of acquisition proceedings. If either of two conditions is not satisfied, the said provision would not apply.
8. In the decisions referred to by the petitioner, the award was passed much prior to 2009. In the Working Friends Co-operative House Building Society Limited’s case (supra), the award was passed on 22.09.1995 and in Vijay Latka’s case (supra), the award was passed on 31.10.2005. The other condition also being satisfied under the above circumstances, the Hon’ble supreme Court applied Section 24 (2) of the Act and granted relief. But in the instant case, award having been passed on 10.05.2011, which is less than 5 years from the date of commencement of 2013 Act, the petitioner is not entitled to any relief under Section 24(2) of the Act. Having regard to Section 24 (2) of the Act, the petitioner is entitled to seek compensation under the provisions of 1894 Act. In the circumstances, there being no merit in the Writ Petition, it is dismissed.
Sd/- JUDGE Prs*