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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 10394-10396 OF 2011

M/S.SOORAJMULL NAGARMULL    .….. APPELLANT

VERSUS

STATE OF BIHAR & ORS.        ….. RESPONDENTS

J U D G M E N T

VIKRAMAJIT SEN, J.

1 The Appeal before us involves an acquisition of land under Section 17 of

the Land Acquisition Act, 1894 (L.A. Act for brevity).  The Respondent State

initiated acquisition proceedings in 1981 by Notifications under Section 4 and

Section  6  of  the  L.A.  Act,  both  dated  25.3.1981,  invoking  the  urgency

provisions  contained  in  Section  17.  The  operation  of  Section  5A  was

simultaneously made inapplicable by resorting to Section 17(4). Possession of

the  land  was  taken  by  the  Respondent  State  after  almost  five  months  on

20.8.1981. The land has subsequently been declared to be a ‘Protected Forest’ as

envisaged in Section 29 of the Indian Forest Act, 1927 as per Notification dated

4.9.1990. Thereafter, proceedings were once again initiated by the Respondent

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State vide another Section 4 Notification dated 24.5.1995. This was followed by

a Notification dated 17.8.1996 issued under the urgency provisions of Section

17, whereby Section 5A was yet again dispensed with. The Appellant landowner

challenged these proceedings by way of a writ petition. The High Court found

that  since  the  same  land  for  which  acquisition  proceedings  had  initially

commenced invoking the emergency provisions fourteen years ago was being

re-acquired  once  again  for  an  unspecified  public  purpose,  there  was  clearly

non-application of mind by the Respondent State and the action was mala fide

in law. The writ petition came to be allowed on 22.7.1998 and has subsequently

attained finality. It is pertinent to note that the Respondent State, in its counter

affidavit in that matter, stated that it was initiating fresh acquisition proceedings

because  the  1981 acquisition  had lapsed due  to  the  delay  in  publishing the

Award. On 17.11.2003, the Respondent State took steps to annul the second

proceedings by attempting to rely on Section 48 with the objective to withdraw

from the  acquisition.  Subsequently, the  Appellant  filed  another  writ  petition

seeking the issuance of a direction commanding the Respondent State to release

the  land  in  question  and  hand  over  its  possession  to  the  Appellant.  A writ

petition giving rise to CWJC No.15767 of 2004 was also filed by the Divisional

Forest Officer challenging the action of the Respondent State in endeavouring to

withdraw from the acquisition proceedings.  The Forest Officer also sought a

direction restraining the Authorities from dispossessing the Forest Department

from the land. A Public Interest Litigation also came to be filed by one Sunil

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Kumar Singh, a self proclaimed social activist, with the intent and purpose of

protecting and preserving the forest. While these writ petitions were pending,

pursuant to an internal communication dated 14.11.2005 of which the Appellant

had no notice, an Award was published on 27.9.2006, purportedly in continuity

of the 1981 acquisition proceedings. The Respondent State has submitted that a

cheque was sent  to  the Appellant  albeit  bearing the wrong name.  When the

Appellant was asked to return the cheque so that a new one could be issued, the

Appellant  asked  the  Respondent  State  not  to  take  any further  action  as  the

matter was sub-judice. The Appellant, on the other hand, contends that upon its

refusal  to  accept  the  compensation,  the  Respondent  State  ought  to  have

complied with Section 31 of the L.A. Act by depositing the amount with the

Court, which it neglected to do.  

2 All  three  writ  petitions  were  heard  together  by  the  High  Court.  The

arguments put forward by the Appellant were that since no Award had been

passed till 2006, the acquisition had lapsed under Section 11A; that the 1981

proceedings had lapsed by virtue of the proceedings initiated in 1995-96; that

the land was neither arable nor waste with the legal consequence that Section 17

was not available to the Respondent State; and that a Notification under Section

4 and a Declaration under Section 6 were issued on the same day.  However, it

was  not  denied  that  the  Appellant  had  not  challenged  1981  acquisition

proceedings or the Award belatedly published pursuant thereto.  

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3 In light of the fact that the 1981 acquisition proceedings had not been

withdrawn by the Respondent State and the incontrovertible position that the

Appellant had not challenged those proceedings, the Impugned Order held that

the possession of the land as well as the title thereof vested in the Respondent

State, notwithstanding the avowedly delayed publication of the Award. Reliance

was placed upon Lt. Governor of Himachal Pradesh vs. Shri Avinash Sharma

(1970)  2 SCC 149,  according to  which land that  is  statutorily vested in  the

Government cannot revert to the original owner by way of mere cancellation of

the Notification. Support was also drawn from Satendra Prasad Jain vs. State

of Uttar Pradesh (1993) 4 SCC 369, which was erroneously understood by the

High Court to have held that  the provisions of Section 11A do not apply to

acquisitions under Section 17 of the L.A. Act.  

4 We have dealt with a substantially similar factual and forensic scenario in

Laxmi  Devi vs.  State  of  Bihar,  2015  (7)  SCALE  555  in  which  we  have

discussed the relevant legal issues at length. Having had the benefit of hearing

the arguments in this matter prior to pronouncing that Judgment, we had taken

into consideration the arguments raised in the present Appeals in coming to a

considered conclusion on the legal regime pertaining to the acquisition of land.

We shall  therefore decide  these  Appeals  in  accordance  with our  decision  in

Laxmi Devi, on the strength of that decision.

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5 It has been mentioned in these Appeals themselves that on 13.11.1979,

the  Commissioner,  Bhagalpur  had  recorded  that  the  subject  land  was  not

required  by  the  Health  Department  and  it  may  be  given  to  the  Forest

Department instead. It is also the admitted position, and as already noted above,

that  on  25.3.1981,  consequent  upon  contemporaneous  Notifications  under

Sections 4, 6 and 17, the Appellant’s property was sought to be acquired for the

Office of the Conservator of Forests and its staff quarters. Thereafter, possession

of the land was duly taken by the Respondent State, which however failed to

pass an Award in respect thereof.  Since the acquisition was initiated in 1981,

there was no statutory obligation to pass an award within two years, as Section

11A came to be introduced by way of an amendment in 1984.  However, upon

Section 11A coming into force on 24.9.1984, the Respondent State was under a

statutory obligation to pass an Award within two years of its commencement.

No Award was passed in 1986 (i.e. within two years), or in fact even till 2006,

causing grave prejudice to,  nay deracinating,  the Constitutional  rights of the

Appellant landowner. It seems to us that the realization by the Respondent State

that the failure to pass an Award for over a decade was likely to render the

acquisition void, is the reason that prompted it to once again initiate steps to

acquire the land, in terms of the Notification dated 13.8.1996. under Section 4

and 17(4) of the  L.A. Act.

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6 It is thus clear that the validity of the 2005 revival and the 2006 Award is

immaterial, as the 1981 acquisition in itself cannot be allowed to stand for its

abject failure to comply with the requirements of Section 11A of the L.A. Act.

The Respondent State has argued that the Appellant has not challenged the 1981

acquisition proceeding, or indeed the 2006 Award, till today. While it is true that

the  Appellant  had  initially  prayed  for  the  issuance  of  a  writ  of  mandamus

commanding the  Respondent  State  to  hand over  possession of  the  land,  the

restricted  nature  of  that  demand  was  because  the  Appellant’s  case  was

predicated on the premise that the 1981 acquisition had lapsed, as is clear from

a perusal of the Appellant’s Affidavit filed before this Court. We shall therefore

not be prejudiced by the fact that the Appellant has not directly challenged the

1981 proceedings, but has instead done so indirectly. To penalize the Appellant

for a viewpoint that the Respondent State clearly adhered to as well, till the time

of initiating the 2005 revival of the acquisition, would be patently unfair.  

7 Furthermore,  in  light  of  the  judgments  in  Land  Acquisition

Officer-cum-RDO  vs.  A.  Ramachandra  Reddy  (2011)  2  SCC  447  and

Bhimandas Ambwani vs Delhi Power Company Limited (2013) 14 SCC 195,

the  1981  acquisition  stood  superseded  upon  the  issuance  of  the  fresh

Notifications in 1996. This Court has consistently held that old notifications are

superseded and obliterated by subsequent ones, as the subsequent acquisition

proceeding  manifest  and  indicate  the  intention  of  the  State  to  abandon  the

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preceding  one.  This  is  particularly  clear  in  the  case  at  hand,  where  the

Respondent  State,  in  its  Counter  Affidavit  in  previous  litigation,  had

asserverated that it believed that the 1981 acquisition had lapsed. We find no

reason or basis to allow the Respondent State to revive the lapsed acquisition.   

8 We therefore  conclude  that  the  actions  of  the  Respondent  State  have

denied the Appellant just and fair compensation as envisaged and postulated in

the  L.A.  Act,  for  its  land  from  which  it  was  dispossessed  well  over  three

decades ago. The 1981 acquisition is accordingly set aside for non-compliance

with the provisions of Section 11A of the L.A. Act. We must hasten to reiterate

the submission made by the learned Solicitor General to the effect that Section

11A,  or  the  necessity  to  pass  an  Award,  is  not  necessary  in  view  of  the

exposition of the law in  Satendra Prasad Jain.  We may adumbrate, since it

already been discussed by us in detail in Laxmi Devi, that the ratio of the Three

judge bench in  Satendra Prasad Jain is confined to the proposition that the

errant Respondent State is precluded from endeavouring to have the acquisition

set aside for its own failure to carry out compliance with Section 11A, and that

once possession has been taken by the State under Section 17 of the L.A. Act, it

is no longer open to the State to relinquish or return the land to the legal entity

who had been dispossessed from it. Accordingly, we refrain from passing any

orders or directions interfering with the possession of the Respondent State over

the subject land.

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9 In this situation the current acquisition law needs to be analysed.  We

have already concluded that  the 1981 acquisition  had lapsed because  of  the

failure of the Respondent State to pass an Award and secondly because it had

launched upon a fresh acquisition in 1996.  Section 24 of The Right to Fair

Compensation  and  Transparency  in  Land  Acquisition,  Rehabilitation  and

Resettlement Act, 2013 (hereafter 2013 Act) deserves to be placed here –

“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 replealed”.

(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 Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

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10 At  first  perusal,  there  seems  to  be  an  unexplained  inconsistency

between Section 24(1)(a), which allows an acquisition to stand despite a failure

to pass an award while only requiring the compensation to be determined under

the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for

a failure to pay compensation or take physical possession of the land where an

award has been passed over five years prior to the commencement of the 2013

Act. It appears that the State is in a better position in situations where it has

been  remiss  in  taking  any  action,  towards  publication  of  an  award  than  in

situations  where  it  has  taken  partial  steps  towards  the  completion  of  the

acquisition  proceedings.  However,  it  is  possible  that  the  reason  behind  this

differentiation is that Section 24(2) gives the State the option to initiate fresh

proceedings, as opposed to placing an obligation upon it to do so. To give the

State the discretion to set aside an acquisition for its own error in not passing an

award would be  in  the  face  of  the decision  in  Satendra Prasad Jain. The

Parliament has therefore sought to give the erstwhile landowner the benefit of

enhanced compensation under the 2013 Act, while restraining the State from

taking advantage of its own wrong. Section 24(2), on the other hand, seeks to

allow the land to be returned to the landowner party in situations where there is

genuinely no need for it, thus benefiting both the dispossessed landowner and

the State. There still  remains an incongruity, but which presently we are not

burdened to unravel. Which provision in the 2013 Act governs a situation where

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the State  has not  progressed beyond making a  Declaration under  Section 6;

where possession of the land has not assumed by the State; where neither part

nor whole of the compensation has been paid or tendered! However, since in

this Appeal we do not have to traverse this legal labyrinth, we shall refrain from

indulging in a more detailed discussion of it.

11 In conclusion we declare that acquisition proceedings with regard to the

subject  lands have lapsed.  The Respondent State is  directed to  initiate  fresh

acquisition proceedings or take any other action available to it in accordance

with law within six weeks from today. The Appeals are allowed in these terms.   

……….…………………………J. [VIKRAMAJIT SEN]

………………………………….J. [ABHAY MANOHAR SAPRE]

New Delhi; August 17, 2015