RAJIV CHOUDHRIE HUF Vs UNION OF INDIA .
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: C.A. No.-008785-008785 / 2013
Diary number: 30993 / 2010
Advocates: SENTHIL JAGADEESAN Vs
A. VENAYAGAM BALAN
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I.A. No. 4 of 2014 in C.A. No. 8785 of 2013 1
NON REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
I.A. No. 4 of 2014
IN
CIVIL APPEAL NO.8785 OF 2013
RAJIV CHOWDHRIE HUF ………APPELLANT
Vs.
UNION OF INDIA & ORS. ………RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
1. This I.A. No.4 of 2014 in Civil Appeal No. 8785
of 2013 is filed by the appellant seeking for issuing
direction and pass an order for disposal of this
appeal in terms of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (in short
‘the Act of 2013’). The appellant-land owner has come
to this Court questioning the correctness of the
judgment and order dated 26.03.2010 passed by the
Division Bench of the High Court of Delhi in W.P.
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(C)No. 2161 of 2006, wherein, the High Court dismissed
the said petition.
2. Brief facts of the case are stated hereunder:
The appellant Hindu Undivided Family (for short
HUF) purchased land comprising of Khasra Nos. 569,
575, 581, 586, 591, 592 (New Khasra Nos. 27/9, 12, 19,
22, 36/2, 9) on 07.06.1984 in all measuring 27 bighas
situated in the revenue estate of village Bamnauli,
Tehsil Mehrauli (presently Tehsil Vasant Vihar,
Kapashera), New Delhi. On application made by the
appellant, the Municipal Corporation of Delhi (MCD)
vide Sanction Letter No.972/B/HQ/84 dated 23/01/1985
sanctioned the plan for constructing a farm house on
part of the said land. In January 1985, the appellant
constructed a farm house on the aforesaid land, which
was in accordance with the plan duly sanctioned. After
the completion of the construction, the MCD issued a
completion certificate dated 06.11.1985 to the
appellant.
3. On 26.11.2004, the Government of National
Capital Territory (NCT) issued the notification dated
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I.A. No. 4 of 2014 in C.A. No. 8785 of 2013 3
04.11.2004 under Section 4 of the repealed Land
Acquisition Act, 1894 (for short ‘the L.A. Act’) in
respect of land area measuring 2100 bighas and 06
biswas in respect of village Bamnauli, Tehsil
Mehrauli. The public purpose mentioned in the
notification under Section 4 of the L.A. Act was for
construction of Dwarka, Phase II, the land of the
appellant was covered in the said notification. The
appellant filed his objections under Section 5A of the
L.A. Act before the Land Acquisition Collector (for
short ‘LAC’), South West Delhi opposing the proposed
acquisition for public purpose.
4. Thereafter, on 10.11.2005, the declaration
notification under Section 6(1) of the L.A. Act dated
31.10.2005 was published in the government Gazette in
respect of the land sought to be acquired including
the land owned by the appellant.
5. The appellant filed Writ Petition (Civil) No.
2161 of 2006 before the High Court of Delhi at New
Delhi, challenging the legality of the notifications
under Sections 4 and 6 of the L.A. Act. The High Court
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issued notice and passed an order of “status quo” in
respect of the land in question. The other land
holders who were similarly situated had also
challenged the said two notifications and the High
Court upon examining the writ petitions on merits
dismissed the same with a direction to the land owners
that they were permitted to file a representation to
the competent authority under Section 48 of the L.A.
Act, to de-notify their land and further held that
till such time as their representation for
denotification is decided by the NCT, the parties are
directed to maintain “status quo” as to nature, title
and possession of the land in question. Hence, this
appeal.
6. This Court vide order dated 08.11.2010 passed an
interim order to maintain “status quo” in respect of
the possession of the land in question, subsequently
the same was made absolute till the disposal of the
appeal.
7. It is the case of the appellant that throughout
the proceedings before the High Court as well as this
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Court, it has been in physical possession of the land
involved in this appeal. In fact, the actual physical
possession of the land was never taken by the
respondents. Furthermore, the appellant was protected
by various interim orders of “status quo” both by the
High Court as well as this Court with respect to the
possession of the land in question.
8. Mr. Chandra Uday Singh, the learned senior
counsel appearing on behalf of the appellant placed
reliance upon Section 24(2) of the Act of 2013 to
support the plea of the appellant that the land
acquisition proceedings initiated under the L.A. Act
would be deemed to have lapsed where an award was made
5 years prior to the commencement of the Act of 2013
and physical possession of the land has not been taken
or the compensation towards the acquired land was not
paid to the appellant. Therefore, the above provision
of the Act of 2013 provides for lapse of such
acquisition proceedings which provision is aptly
applicable to the fact situation. Section 24(2) of the
2013 Act, upon which strong reliance has been placed
by the learned senior counsel on behalf of the
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appellant is extracted as under:-
“(2) Notwithstanding anything contained in sub- section (1), in case of land acquisition proceedings initiated under the LA Act, 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 whether 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 specified in the notifications for acquisition under Section 4 of the said land acquisition and shall be entitled to compensation in accordance with the provisions of this Act.”
9. Having regard to the facts narrated above, it is
contended by the learned senior counsel for the
appellant that by virtue of Section 24(2) of the Act
of 2013, the land acquisition proceedings in the
present case on hand initiated under the L.A. Act have
lapsed for the reason that the award under Section 11
of the L.A. Act, which was made by the LAC on
06.08.2007 vide Award No.1/2007-2008 more than five
years prior to the commencement of the Act of 2013,
which has commenced from 01.01.2014 and physical
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possession of the land in dispute is neither taken nor
has the compensation awarded been paid to the
appellant in respect of his acquired land.
10. It has been further contended that the case of
the appellant herein is duly covered under the
aforesaid provisions of the Act as the appellant has
been in continuous possession of the land in question
and compensation has not been paid to the appellant
while the award was made more than 5 years prior to
the commencement of the Act of 2013. Reliance was
placed on the three Judge Bench decision of this Court
in Pune Municipal Corporation and Anr. Vs. Harakchand
Misirimal Solanki & Ors.1, and the other judgments of
this Court in Bharat Kumar v. State of Haryana &
Another2, Bimla Devi & Others v. State of Haryana &
Others3 and Union of India & Others v. Shiv Raj &
Others4, wherein Section 24(2) of the Act of 2013, was
examined by this Court at length and held that the
land acquisition proceedings initiated under the L.A.
Act are deemed to have lapsed, where the award has
1 (2014) 3 SCC 183 2 (2014) 6 SCC 586 3 (2014) 6 SCC 583 4 (2014) 6 SCC 564
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been made five years or more prior to the commencement
of the Act of 2013 and physical possession of the land
is not taken or compensation has not been paid to the
appellant. It is further contended that the law laid
down by this Court in the Pune Municipal Corporation’s
case (supra) and other cases referred to supra,
squarely cover the case on hand in favour of the
appellant. Therefore, it is prayed by him that the
instant appeal be disposed of since the acquisition
proceedings of the land have lapsed in terms of
Section 24(2) of the Act of 2013.
11. On the other hand, it has been contended by the
learned counsel for the respondents that the Act of
2013 is prospective in operation by virtue of Section
24 read with Section 114 of the Act of 2013. As
provided under Section 24, the effect of Section 6 of
the General Clauses Act of 1897, the actions taken by
the respondents in acquiring the land in dispute and
passing an award have been saved. By reading the
above provisions of the two Sections, it is clear that
Legislature wanted to protect and save the acquisition
proceedings initiated under the repealed L.A. Act,
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particularly where either possession of the acquired
land has not been taken or compensation has not been
paid to the landowners. It is further submitted that
the Act of 2013 never intended to destroy entire
acquisition proceedings in acquiring the land for the
public purpose under the repealed L.A. Act, 1894. It
is well settled position of law that the proceedings
initiated and culminated under the repealed Act of
1894 are not to be disturbed by applying the
interpretation of the provisions of Section 24(2) of
the Act of 2013 made by this Court in the above
referred cases. By operation of the provisions of
Section 16 or 17(1) of the L.A. Act as the case may
be, once the possession of the acquired land is taken
by the respondents, the land will be vested in the
State Government which is absolutely free from all
encumbrances. Thereafter, it is not open even for the
State Government to denotify and restore the land to
the land owner in exercise of its power under Section
48 of the repealed L.A. Act as it is not permissible
in law. In the cases reported as Satendra Prasad Jain
Vs. State of UP5. and Sanjeevanagar Medical and Health 5 (1993) 4 SCC 369
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I.A. No. 4 of 2014 in C.A. No. 8785 of 2013 10
Emloyees’ Co-operative Housing Society Vs. Mohd. Abdul
Wahab and Ors.6, this Court has held that once
possession is taken by the Land Acquisition Collector
in exercise of its statutory power under Section 16 or
17(1) of the repealed L.A. Act, 1894, the land vests
with the State Government, free from all encumbrances,
even if no compensation has been awarded under Section
11 of the repealed L.A. Act within two years, that is,
the statutory period prescribed under the repealed
L.A. Act for passing an award. In the aforesaid
cases, this Court has also held that Section 11(A) of
the repealed L.A. Act is not applicable (which is
analogous to Section 24 of the Act of 2013) and
further held that in such circumstances, the only
consequence provided under the repealed L.A. Act is
payment of interest under Section 34 in respect of the
acquired land. Therefore, he submits that the
acquisition of land cannot be deemed to have lapsed
under Section 24(2) of the Act of 2013, in view of the
law laid down in the above cases referred to supra.
It is contended by the learned counsel on behalf of
the respondents that the above said judgments were not 6 (1996) 3 SCC 600
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brought to the notice of this Court while disposing of
the case of Pune Municipal Corporation’s case and
other cases referred to supra which are strongly
relied on behalf of the appellant and therefore the
legal question in this regard requires to be referred
to a larger Bench of this Court.
12. Further, it is contended by the respondents that
by a careful reading of Section 24(2) of the Act of
2013, it would show that the proceedings initiated
under the L.A. Act shall be deemed to have lapsed, if
two conditions as mentioned below are not satisfied by
the appellant. They are:
(i)An Award under Section 11 of 1894 Act should have been made five years or more prior to the commencement of Act of 2013;
(ii)Whether physical possession had not been taken or the compensation has not been paid.
A perusal of the provision of Section 24(2) of the Act
reveals that it is in two parts. The first part
relates to a positive state of affair, namely, the
existence of award for more than five years on the
commencement of the New Act, whereas, the second part
lays down two negative conditions. Thus, the word ‘or’
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has been used to express an alternative of the
terms/conditions enumerated therein. Therefore, if
either of the two negative conditions which are found
to be mentioned in Section 24(2) remains unfulfilled
by the respondents, the acquisition proceedings in
respect of the land be held to be not lapsed, is the
legal contention urged on behalf of the respondents by
placing reliance upon the decision of this Court in
the case of The Punjab Produce and Trading Co. Ltd.
v. CIT, West Bengal, Calcutta7. Neither the said legal
issue is considered nor the law laid down in the
aforesaid judgment was brought to the notice of this
Court at the time of hearing of the case of Pune
Municipal Corporation and other cases referred to
supra and thus have not been considered by this Court
while disposing of the cases on which reliance has
been placed by the appellant as they have to be
referred to the larger Bench for its reconsideration
is the submissions of the learned senior counsel on
behalf of NCT. Further, it is contended that if the
above provisions are read in this manner, then it will
be in harmony with the L.A. Act. 7 (1971) 2 SCC 540
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13. Further, it is contended that the appellant had
filed writ petition in this Court when this Court was
pleased to grant “status quo” in respect of the land
in question. Although the High Court has dismissed the
Writ Petition on 26.03.2010 but extended the interim
order of “status quo” regarding the possession of the
land till the representation filed by the appellant
for release of the land under Section 48 of the L.A.
Act was decided by the Competent Authority of NCT.
When the appellant challenged the said order before
this Court by way of Special Leave Petition, this
Court directed the parties to maintain “status quo” in
respect of the land in question resultantly on the
strength of the interim order passed by the High Court
as well as by this Court the possession of the land
could not be taken by the respondents and the same
remained with the appellant. In the teeth of the
aforesaid fact that the appellant continued to be in
possession of the land in question only due to interim
order of “status quo” passed in their favour is not
proper for the appellant to turn around and contend
now at this stage that physical possession of the land
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has not been taken by the respondents and therefore,
the acquisition proceedings of the land are lapsed.
14. We have carefully gone through the factual and
rival legal contentions urged on behalf of both the
parties in the backdrop of the case laws cited above.
On examining the facts and circumstances of the case
on hand, it is an undisputed fact that the award was
made 5 years prior to the date of commencement of the
Resettlement Act, 2013 i.e. on 06.08.2007 vide Award
No. 1/2007-2008 and either physical possession of the
land should have been taken or compensation has been
paid to the appellant in respect of his acquired land.
Therefore, the acquisition proceedings of the land of
the appellant are lapsed in view of Section 24(2) of
the Act of 2013, which provision has been rightly
interpreted by this Court by a three Judge Bench
decision in the case of Pune Municipal Corporation and
other cases referred to supra, the relevant paras of
the aforesaid case are extracted hereunder:-
“20…….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
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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.
21. The argument on behalf of the Corporation that the subject land acquisition proceedings have been concluded in all respects under the 1894 Act and that they are not affected at all in view of Section 114(2) of the 2013 Act, has no merit at all, and is noted to be rejected. Section 114(1) of the 2013 Act repeals the 1894 Act. Sub-section (2) of Section 114, however, makes Section 6 of the General Clauses Act, 1897 applicable with regard to the effect of repeal but this is subject to the provisions in the 2013 Act. Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of the 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied. The applicability of Section 6 of the General Clauses Act being subject to Section 24(2), there is no merit in the contention of the Corporation.”
15. Further, with regard to the legal contention
that physical possession of the land could not have
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been taken by the respondents in view of the interim
order of “status quo” passed by this Court. This Court
in the case of Sree Balaji Nagar Residential
Association v. State of Tamil Nadu & Ors.8, held that
Section 24(2) of the Act of 2013 does not exclude any
period during which the land acquisition proceedings
might have remained stayed on account of stay or
injunction granted by any court. It was conclusively
held that the Legislature has consciously omitted to
extend the period of five years indicated in Section
24(2) of the Act of 2013 for grant of relief in favour
of land owners even if the proceedings had been
delayed on account of an order of stay or injunction
granted by a court of law or for any reason. Thus, the
said period has to be excluded as provided under the
amended proviso to Section 6 of the L.A. Act by way of
an amendment by the legislature to the above Section 6
through an Amendment Act 68 of 1984, to add
Explanation 1 to the Act, for the purpose of excluding
the period, when the proceedings suffered stay by an
order of the Court, in the context of limitation
provided for publishing the declaration notification 8 2014 (10) SCALE 388
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under Section 6(1) of the Act. The Explanation to
Section 11A, which was added by Amendment Act 68 of
1984 was to a similar effect. This Court in the above
case has examined this legal contention and held that
the legislature in its wisdom made the period of five
years under Section 24(2) of the Resettlement Act,
2013, absolute and unaffected by any delay in the
proceedings on account of any order of stay by a court
of Law. The plain wordings used by the Legislature
under the provisions of Section 24(2) are made very
clear and do not create any ambiguity or conflict. In
such a situation, the court is not required to depart
from the literal rule of interpretation, as held by
this Court in the case of C.I.T., Mysore v. The Indo
Mercantile Bank Ltd.9 as under:-
“10. Lord Macmillan in Madras & Southern Maharatta Railway Co. v. Bezwada Municipality laid down the sphere of a proviso as follows:
“The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion
9 AIR 1959 SC 713
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on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms.
The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect.”
16. Upon examining the aforesaid decisions with
reference to the facts and circumstances of the case
on hand, we are of the view that physical possession
of the land belonging to the appellant has neither
been taken by the respondents nor compensation paid to
him in respect of the land acquired even though more
than five years have lapsed since the award was passed
on 06.08.2007, when the Act of 2013 came into force.
Therefore, the conditions mentioned in Section 24(2)
of the Act of 2013 are satisfied in this case for
allowing the plea of the appellant that the land
acquisition proceedings are deemed to have lapsed in
terms of Section 24(2) of the Act of 2013. The said
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legal principle laid down by this Court in the case of
Pune Municipal Corporation (supra) and other cases
referred to supra with regard to the interpretation of
Section 24(2) of the Act of 2013, is applicable with
all fours to the fact situation in respect of the land
covered in this appeal for granting the relief as
prayed by the appellant in the application.
17. In view of the aforesaid findings and reasons
recorded by us, the acquisition proceedings in respect
of the appellant’s land have lapsed. The prayer made
in this Interlocutory Application is allowed in the
above terms and consequently, the civil appeal is also
allowed by quashing the acquisition proceeding
notification in so far as the land of the appellant is
concerned. There shall be no order as to costs.
……………………………………………………………J. [V. GOPALA GOWDA]
……………………………………………………………J.
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[C. NAGAPPAN]
New Delhi, December 10,2014