Hon'ble Mahesh Chandra Tripathi, J.
(Delivered by Hon'ble Ashok Bhushan, J.) These two writ petition filed substantially for same reliefs, have been heard together and are being decided by this common judgment.
In Writ Petition No.9989 of 2014, counter and rejoinder affidavits have been exchanged which writ petition is treated as leading writ petition. It is sufficient to refer to the pleadings in Writ Petition No.9989 of 2014 for deciding both the writ petitions.
Brief facts of the case which emerge from pleadings in Writ Petition No.9989 of 2014 are; the petitioners, 23 in number, who have filed this writ petition are resident of different villages, namely, Jarar and Lotarh of Paragana Khairagarh, District Allahabad. Petitioners' agricultural land are situate in villages Jarar, Lotarh and Bhiska, Tahsil Meja, district Allahabad. A notification dated 15th November, 2011 under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 1984 Act) was issued proposing to acquire agricultural land of different villages of Tahsil Meja, District Allahabad for purposes of laying railway line for the purpose of establishment of a power station under the project of Meja Urja Nigam. The notification under Section 4(1) was published in daily news papers on 23rd November, 2011 itself. The objections were invited under Section 5A of the 1984 Act which were filed by the petitioners. A report was submitted by the Collector and the State Government after submission of the report has issued declaration under Section 6 of the 1894 Act dated 22nd November, 2012 which was also published in two daily newspapers on 8th December, 2012. The notice under Section 9(1) of the 1894 Act was issued on 4th January, 2013 fixing 10th January, 2013 and 19th January, 2013 for hearing. The objection were also filed in reply to the notice on 19th January, 2013 and thereafter on 5th February, 2013. The District Magistrate, Allahabad convened a meeting on 2nd May, 2013 to determine the amount of compensation to be paid for acquisition in different villages in accordance with the Government order dated 29th September, 2001 for the purpose of payment under Section 11(2) of the Land Acquisition Act, 1894. The Committee determined the amount of compensation per bigha to be paid in respect of land of different villages. Large number of tenure holders whose land was acquired signed the agreement under the provisions of the Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997 (hereinafter referred to as the 1997 Rules). However, the petitioners neither entered into the agreement nor received compensation. The petitioners filed this writ petition on 13th February, 2014. In the writ petition following reliefs have been prayed for:-
"i) Issue an appropriate writ, order or direction in the nature of certiorari thereby quashing the Notification bearing No.691/8 Vi.Bhu. A.A. (S.S.) Allahabad U/s 4 of the Land Acquisition Act published on 23.11.2011 in Dainik Jagaran daily News as (Annexure 1) and the consequent proceedings arising therefrom;
ii) Issue an appropriate writ, order or direction in the nature of certiorari thereby quashing the Notification bearing No.2307/24-p-3-2012 published on dated. 08.12.2012 in Amar Ujala Hindi News U/s 6 of the Land Acquisition Act (Annexure 3) and the consequent proceedings arising therefrom;
iii) Issue an appropriate writ, order or direction in the nature of mandamus commanding the respondents to proceed the acquisition proceeding in pursuance of the petitioners according the provisions of "The Right to Fair Compensation and Transparency In Land Acquisition, Rehabilitation and Resettlement Act 2013;
....."
A counter affidavit has been filed by respondent No.6. In the counter affidavit it has been stated that challenge to the notification dated 15.11.2011 and 22.11.2012 issued under Section 4 and 6 of the 1894 Act respectively was made in number of writ petitions in this Court which petitions have been dismissed by the Division Bench of this Court upholding the notifications. It is stated that majority of land holders i.e. 72.31% entered into the agreement under the 1997 Rules and received compensation. The proceedings dated 2nd May, 2013 of the meeting headed by the District Magistrate for fixing the price of land acquired in different villages has also been brought on the record. It has been pleaded that opportunity of hearing was given to the affected tenure holders under Section 5A of the 1894 Act and thereafter declaration under Section 6 of the 1894 Act has been issued within the stipulated time. It is further pleaded that out of 2362 affected tenure holders, about 1708 have received amount of compensation and to remaining 654 affected tenure holders who have not signed the agreement, the amount of compensation shall be paid in accordance with law either by way of agreement or by making the award.
In the rejoinder affidavit, the petitioners have reiterated their plea taken in the writ petition. Reliance has also been placed upon 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). It has been pleaded that award has not been made till date.
We have heard Sri Shachindra Mishra and Rameshwar Prasad Shukla for the petitioners in above two writ petitions, Sri V.C. Misra, learned Senior Advocate for respondent No.6 and Sri Suresh Singh, Additional Chief Standing Counsel for the State-respondents. No notice has been issued to respondent No.5 in view of the order which is being passed.
Learned counsel for the petitioners, in support of the writ petition, has submitted that in view of Section 24(2) of the 2013Act the entire acquisition initiated by notifications dated 15th November, 2011 and 22nd November, 2012 has lapsed. It is submitted that no award has yet been declared with regard to petitioners' land. It is further stated that respondents are obliged to determine the compensation to be awarded to the petitioners as per the provisions of 2013 Act. It is also stated that objections of the petitioners filed against the notice under Section 9 of the 1984 Act has not yet been decided.
Sri V.C. Misra, learned Senior Advocate, appearing for respondent No.6, has submitted that insofar as the prayer of the petitioners for quashing the notification under Section 4 dated 15th November, 2011 and the declaration under Section 6 dated 22nd November, 2012 is concerned, the said prayer has already been refused and both the notifications have been upheld by a Division Bench of this Court, hence the above prayer of the petitioners are liable to be refused. Sri V.C. Misra has further submitted that petitioners have no cause of action to file the present writ petition. It is submitted that award has not yet been made and no further action having been taken by the respondents for preparation of the award, there is no cause of action. He further submits that cause of action may arise to the petitioners only when an award is made and a person is aggrieved by the said award. It is submitted that writ petition be dismissed since there is no cause of action. It is also submitted that majority of the land holders i.e. more than 72% have already received compensation by entering into agreement. While determining the compensation to be paid under agreement, all factors have been taken into consideration and under the 2013 Act there is no prohibition from entering into the agreement.
Sri Suresh Singh, learned Additional Chief Standing Counsel submits that acquisition has not lapsed since case is not covered by Section 24(2) of the 2013 Act. Sri Suresh Singh submits that whether the compensation is to be paid under the 2013 Act is under active consideration of the Government, hence there is no cause of action to file the writ petition. He further submits that there is no occasion to take possession since Section 17 of the 1894 Act has not been invoked and award has not yet been prepared.
Learned counsel for the petitioners in rejoinder has submitted that since the petitioners' case is that acquisition has lapsed under Section 24(2) of the 2013 Act, hence they have cause of action. He further submits 2013 Act has given cause of action to the petitioners to file the writ petition. Learned counsel for the petitioners has placed reliance on a judgment of the Apex Court in Civil Appeal No.877 of 2014 (Pune Municipal Corporation & another vs. Harakchand Misirimal Solanki and others) decided on 24th January, 2014.
We have considered the submissions of learned counsel for the parties and perused the record.
The petitioners have challenged the notification dated 15th November, 2011 published on 23rd November, 2011 and the declaration dated 22nd November, 2012 published on 8th December, 2012 in the writ petition. These very notifications were challenged by other tenure holders in Writ Petition No.20091 of 2013 (Rajesh Prasad and others vs. Union of India and others) connected with 9 other writ petitions which have already been dismissed by the Division Bench of this Court on 22nd April, 2013. Another writ petition being Writ Petition No.866 of 2014 (Sant Lal and another vs. State of U.P. and others) challenging the same notifications has also been dismissed by a Division Bench of this Court on 8th January, 2014. Both the notifications having been upheld by the aforesaid Division Bench judgments, the prayer of the petitioners to quash the notifications has to be rejected.
Now we come to the petitioners' submission that acquisition has lapsed under Section 24(2) of the 2013 Act. The 2013 Act has been enacted to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution of India, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families; to provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and to make adequate provisions for such affected persons for their rehabilitation and resettlement; to ensure that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. It delineate a completely new scheme for undertaking acquisition of the land. Section 24 of the 2013 Act, on which reliance has been placed, contains a heading "Land acquisition process under Act No 1 of 1894 shall be deemed to have lapsed in certain cases". Section 24 of the 2013 Act is quoted below:-
"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,--
(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, 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."
In the present case, although declaration under Section 6 of the 1894 Act has been issued on 22nd November, 2012 but award has not yet been prepared. The respondents have paid compensation to several tenure holders under the 1997 Rules after entering with agreement between the tenure holders. The petitioners did not enter into agreement nor any award has been made in their cases which fact has not been disputed by the respondents. Section 24(1)(a) of the 2013 Act provides that 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. Thus according to Section 24(1) where no award under Section 11 of the 1894 Act has been made, all provisions of the 2013 Act relating to determination of compensation shall apply.
Now we come to sub-section (2) of Section 24 of the 2013 Act. There are pre-conditions, as mentioned in the said sub-section. They are, (i) where an award under the said section 11 has been made five years or more prior to the commencement of this Act; (ii) the physical possession of the land has not been taken; (iii) or the compensation has not been paid. Thus for applicability of sub-section (2) of Section 24 of the 2013 Act, first condition is that award under Section 11 of the 1894 Act has been made five years or more prior to commencement of the 2013 Act. The 2013 Act has commenced with effect from 1.1.2014 by virtue of notification issued by the Central Government under Section 1 sub-section (3) of the 2013 Act. In the present case, admittedly the award has not been made. Thus the condition of applicability of sub-section (2) of Section 24 of the 2013 Act has not been fulfilled. Thus there is no occasion of treating the acquisition to be lapsed under Section 24(2) of the 2013 Act. The judgment of the Apex Court in Pune Municipal Corporation's case (supra) relied by the learned counsel for the petitioners was a case where award under the Land Acquisition Act was made on 31.1.2008 which date is mentioned in paragraph 7of the judgment. In the said case the compensation was not received by the land holders and was deposited in the Government Treasury. The submission was made in the aforesaid case that by virtue of Section 24(2) of the 2013 Act, acquisition has lapsed. Accepting the said submission, the Apex Court laid down following in paragraphs 17, 18, 19 and 20:-
"17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word "paid" to "offered" or "tendered". But at the same time, we do not think that by use of the word "paid", Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression "paid" used in this sub-section (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as "paid" if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been "paid" within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad[1]) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.
19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes[2], relying upon the earlier decision in Prem Nath Kapur[3], has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The 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. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act."
The above judgment does not help the petitioners in the present case since the condition of applicability of Section 24(2) of the 2013 Act i.e. award should be made five years or more prior to the commencement of the 2013 Act has not been fulfilled in the present case. We thus reject the submission of the petitioners' counsel that acquisition has lapsed.
The 2013 Act admittedly has come into force with effect from 1.1.2014. The submission, which has been pressed by Sri V.C. Misra, Senior Advocate, is that there is no cause of action to the petitioners to file the present writ petition since no award has yet been prepared by the Special Land Acquisition Officer. In view of the fact that petitioners have filed the writ petition claiming that acquisition has lapsed under Section 24(2) of the 2013 Act and further that the respondents be directed to provide compensation in accordance with the provisions of the 2013 Act, we are not persuaded to throw the writ petition on the ground that petitioners have no cause of action.
Admittedly, the 2013 Act came into force from 1.1.2014. After the enforcement of the 2013 Act, there is new rights and liabilities created between the parties. The notice under Section 9 of the 1894 Act was issued on 4.1.2013 to which objections were filed by the petitioners on 19.1.2013 itself. Admittedly the award has not been made till date. The petitioners' objection under Section 9 of the 1894 Act remain undecided for the period of more than one year and now it cannot be said that petitioners have no cause of action to pray for direction to the respondents to proceed under the 2013 Act. Section 24(1)(a) of the 2013 Act, as quoted above, provides that if no award under Section 11 of the 1894 Act has been made then all provisions of 2013 Act relating to determination of compensation shall apply. There cannot be any dispute that Section 24(1)(a) is applicable in the present case. It is, however, true that till date no determination of compensation qua the petitioners has been made by the respondents and further the petitioners have admittedly not entered into agreement for receiving compensation. The respondents having not yet taken any steps for determining the compensation of the petitioners, it is not necessary for us to enter into the issue as to in what manner and procedure the determination of compensation is to be done. It is always open for the petitioners to question the determination of compensation if the same is not in accordance with law. Thus in facts of the present case, it is suffice to observe that determination of compensation is to be made in accordance with Section 24(1)(a) of the 2013 Act.
In view of the foregoing discussions, ends of justice shall be served in disposing of both the writ petitions with the observation that respondents shall act in accordance with Section 24(1)(a) of the 2013 Act while determining the compensation payable to the petitioners. We, however, clarify that in these writ petitions we are not entering into the issue as to the procedure and manner of such determination which question has not yet arisen.
Both the writ petitions are disposed of accordingly.
Date: March 25, 2014.
Rakesh