Allowed

Kalyan Dattatray Patil and Ors. v. the District Collector,Solapur and Ors.

Bombay HC10 Mar 2014WP/7189/2006

Case brief

AI extract

What is this about?

This writ petition concerns land acquisition where the 1894 Act proceedings faced delay. The High Court held that under Section 24 of the 2013 Act, the proceedings did not lapse regarding compensation determination. The Court directed the State to determine compensation under the 2013 Act within six months.

What did the court decide?

Direction to determine and make an award of compensation under the 2013 Act within six months, with adjustment of advance payment.

Kalyan Dattatray Patil and Ors. Vs the District… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7189 OF 2006

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Shri Kalyan Dattatray Patil and Others. .. Petitioners Vs The District Collector and Others. .. Respondents

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Shri T.D. Deshmukh along with Shri Ritesh Kulkarni for the Petitioners. Shri V.S. Gokhale, AGP for the Respondents.

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CORAM : A.S. OKA & A.A. SAYED, JJ DATED : 10TH MARCH 2014

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ORAL ORDER : ( PER SHRI A.S. OKA, J )

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Heard learned counsel appearing for the Petitioners and the learned AGP for the Respondents.

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The Petitioners are claiming to be the owners of the land, more particularly described in Paragraph 2 of the Petition. A Notification dated 14^th February 1996 was issued under Section 4(1) of the Land Acquisition Act, 1894 ( for short “the said Act”). A corrigendum was issued to the said Notification on 10^th November 1998. A Notification dated 25^th September 1998 was issued under Section 6 of the said Act.

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The first prayer in this Petition is for directing the Respondents to initiate proceedings under the said Act and after completing the acquisition, to pay compensation to the Petitioners within a period of three months. Thereafter, amendment was carried out seeking a direction for quashing the acquisition proceedings on the ground that the award under Section 11 of the said Act was not made within the time specified under Section 11A of the said Act.

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The learned counsel appearing for the Petitioners has not disputed that the purpose for acquisition was of construction of Temburni bypass road and the construction of the said road has been completed. At this stage, it will be necessary to make a reference to the order dated 17^th February 2014 passed by this Court and in particular, Paragraphs 1 to 3 thereof, which read thus:

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“1. Heard learned Counsel appearing for the petitioner and the learned AGP for the respondents. In the petition as originally filed, a writ of mandamus was prayed for initiating proceedings under Section 4, 6, 9 and 11 of the Land Acquisition Act, 1894 (for short “the said Act of 1894”). starting from Section 4 onwards. During the pendency of the petition, it was realized that the notifications under Sections 4 and 6 of the said Act of 1894 were issued on 14.2.1996 and 25.9.1998 respectively. Therefore, petition was amended for raising a contention that the acquisition proceeding has lapsed as the award under Section 11 has not been made within the time specified under Section 11A of the said Act of 1894. Today, the

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learned AGP has produced on record a photocopy of an award made on 29th October, 1998. From the title of the award it is apparent that, the same has been made only for offering 80% of the compensation in accordance with Section 17 of the said Act of 1894. Apart from the title of the award, it is apparent that even notices under Section 9(3)(4) of the said Act of 1894 were not issued before making the award. While dealing with the valuation of the house, well and trees etc., the Land Acquisition Officer has stated that while making final award, the said aspects will be considered. In the concluding portion of the award, it is specifically stated the same is in relation to 80% of the compensation amount which was required to be offered as per Section 17 of the said Act of 1894. After having perused the said document styled as an award, we find that the same is not an award under Section 11 of the said Act of 1894.

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The learned Counsel appearing for the petitioner submits that, in view of Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as the award under Section 11 of the said Act of 1894 has not been made, now all the provisions of the said Act of 2013 will apply in relation to the determination of compensation.

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Learned AGP seeks time, to again ascertain whether there is a separate award made under Section 11 of the said Act of 1894. He also seeks time to address the Court on the legal aspects as regards the applicability of the provisions of the said Act of 2013.”

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We must note here that by way of amendment, Paragraph 6(A) was added to the Petition for raising a contention that the award under Section 11 of the said Act has not been declared within the

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period specified under the said Act. On 20^th January 2014, time was granted to the learned AGP representing the Respondents to take instructions on the averments made in Paragraph 6(A) to the Petition. The learned AGP states that he has not received any instructions.

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The learned counsel appearing for the Petitioners states that 80% of the compensation offered to the Petitioners under the interim award has been accepted by the Petitioners.

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Thus, the scenario which emerges is that there is nothing on record to show that the award under Section 11 of the said Act was made within the time specified under Section 11A of the said Act. However, in the present case, the possession of the acquired land was taken over in accordance with Subsection (1) of Section 17 of the said Act and hence, the acquired land vested in the State Government on the date of taking over possession. Hence, the acquisition will not lapse as Section 11A of the said Act will not apply. ( See Satendra Prasad Jain and Others v. State of U.P. and Others [(1993)4 SCC 369]. Hence, we will have to proceed on the footing that an Award under Section 11 of the said Act has not been made.

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Learned counsel appearing for the Petitioners invited our attention to Section 24 of the Right to Fair Compensation and

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Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( for short “the said Act of 2013”). He urged that Clause (a) of Subsection (1) of Section 24 of the said Act of 2013 will apply to the present case. His submission is that considering the provisions of Sections 26 and 28 of the said Act of 2013, the procedure from Section 11 onwards will have to be followed. The submission of the learned AGP is that even assuming that Section 24 of the said Act of 2013 will apply, only the compensation will have to be determined in accordance with the provisions of the said Act of 2013.

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Subsection (1) of Section 24 of the said Act of 2013 reads

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thus:

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“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),

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(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

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(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.”

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There is no dispute that the said Act of 2013 has come into force with effect from 1^st January 2014. The said Act has been repealed

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with effect from the said date in view of Section 114 of the said Act of 2013. Therefore, Clause (a) of Subsection (1) of Section 24 of the said Act of 2013 will squarely apply to the facts of the present case especially when the SubSection (1) starts with a nonobstante clause. The purport of (a) of Subsection (1) of Section 24 of the said Act of 2013 is that while granting compensation to the Petitioners, all the provisions of the said Act of 2013 relating to the determination of compensation shall apply. In view of the mandate of the said provision, the State Government will have to take appropriate steps.

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We, therefore, dispose of the Petition by passing the following order:

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ORDER :

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(a) We hold that on account of failure to make an award under Section 11 of the Land Acquisition Act, 1894 till 31^st December 2013, now the compensation payable to the Petitioners shall be determined in accordance with the provisions of the said Act of 2013 in the light of Clause (a) of Sub section (1) of Section 24 of the said Act of 2013;

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(b) We direct the Respondents to complete the exercise of determination of compensation and to make an award within the period of six months from today;

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(c) It is obvious that if it is found that the Petitioners are entitled to compensation, the amount already paid to the Petitioners by way of advance compensation shall be adjusted against the compensation payable under the final award;

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(d) The Petition is disposed of with the above directions.

Kalyan Dattatray Patil and Ors. v. the District Collector,Solapur and Ors.

Case brief

What is this about?

What did the court decide?

Kalyan Dattatray Patil and Ors. v. the District Collector,Solapur and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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