Naya Raipur Development Authority (Now Atal Nagar Vikas Pradhikaran) Vs Gaukaran

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2024:CGHC:27086-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WA No. 30 of 2019

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1 - Naya Raipur Development Authority (Now Atal Nagar Vikas Pradhikaran) Through its Chief Executive Officer, New Rajendra Nagar, Infront of Vijeta Complex, R.D. A. Building Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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... Appellant

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versus

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1 - Gaukaran S/o Shri Sukul, Aged About 45 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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2 - Khelan Chelak S/o Shri Budhram, Aged About 75 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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3 - Atma Ram S/o Shri Lila Ram, Aged About 70 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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4 - Manoj Kumar S/o Shri Atma Ram, Aged About 46 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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5 - Smt. Bharti Puruswani W/o Manoj Puruswani, Aged About 42 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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6 - Pun Das S/o Shri Mansa Ram, Aged About 70 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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7 - Smt. Sakun Sinha W/o Shri Khedan Sinha, Aged About 50 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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Digitally signed by MOHAMMAD AADIL KHAN

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8 - Pyari Bai Patel D/o Shri Punit Ram, Aged About 45 Years, R/o Gram Riko, P.H. No. 21, Tahsil Arang, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh

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9 - State of Chhattisgarh Through the Secretary Department of Housing and Environment, Mantaralaya, Naya Raipur, Raipur Chhattisgarh.

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10 - Department of Agriculture and Animal Husbandry Through Secretary, Mantralaya, Naya Raipur, Raipur Chhattisgarh.

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11 - District Collector Cum Officiating Dy Secretary, Government of Chhattisgarh Collectorate of Chhattisgarh Collectorate, Raipur Chhattisgarh.

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12 - Land Acquisition Officer / Sub Divisional Officer, Tahsil Aarang, Abhanpur, Civil and Revenue District Raipur Chhattisgarh

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13 - Commissioner, Raipur District Raipur Chhattisgarh.

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... Respondents

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For Appellant : Mr. Anumeh Shrivastava, Advocate For Respondents : Mr. Sanjay Kumar Agrawal, Advocate. No.1, 6, 7 and 8 For State : Mr. R.S. Marhas, Addl. Advocate General. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board

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Per Ramesh Sinha, Chief Justice

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25-07-2024

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Present writ appeal filed by the Naya Raipur Development Authority (in short ‘NRDA’) against the order dated 27-11-2018 passed by the learned Single Judge in WPC No.791/2016 whereby the writ petition filed by the petitioners (respondents No.1 to 8 herein) have been allowed and the land acquisition proceeding in Land Acquisition Case No.8/82 of year 2012-13 for the land of Village Riko, Tahsil Arang, District Raipur has been quashed.

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Brief facts of the case are that, the petitioners/respondents No.1 to 8 herein who are land owners in village Riko, Tahsil Arang, District Raipur, are agriculturists and their family are fully dependent on the subject land. On the request of NRDA, the Land Acquisition Officer/Sub-Divisional Officer (Revenue) started land acquisition proceeding on 21-03-2013 and total 274 Khasara numbers having total area of 128.39 hectare were selected for acquisition for Naya Raipur Development Authority. A notification under Section 4(1) of the Land Acquisition Act, 1894 has been published on 22-03-2013. The land owners have filed their objection under Section 5A of the the Land Acquisition Act, 1894 against the acquisition of their land. The objection was raised before the SDO (Revenue) Arang which was forwarded to NRDA for its reply. The land owners have been called for hearing on 1206-2013 on their objections raised under Section 5A of the Land Acquisition Act, 1894. Various objections have been raised by the land owners and the SDO (Revenue)/ Land Acquisition Officer vide its order dated 25-06-2013, held that the objections raised by the land owners are liable to be rejected and forwarded the case to the Commissioner, Raipur.

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On 19-12-2013 a notification under Section 6 of the Land Acquisition Act, 1894 has been issued. Though the notification under Section 6 was issued on 19-12-2013, but the same has been published in daily newspaper Dainik Bhaskar on 03-012014. In between the period, a new Land Acquisition Act in the

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name of “ Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” (in short 'new Act of 2013') came into existence with effect from 01-012014. Since the new Act of 2013 is effective from 01-01-2014, therefore, the notification under Section 6 of the Land Acquisition Act, 1894 issued on 03-01-2014 is illegal and the same is null and void. Further, the SDO (Revenue)/Land Acquisition Officer has passed the award under Section 23 of the new Act of 2013 on 3112-2015. The said award dated 31-12-2015 is under challenge in the writ petition by the petitioners claiming following relief(s):-

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“(i) That, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the Land Acquisition Case No.8/82 year 2012-2013, in Village Riko, PH No.21, Tahsil Arang, District – Raipur.

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(ii) That, this Hon'ble Court may be pleased to quash the entire Land Acquisition proceedings in Land Acquisition Case No 8/82 year 2012-2013, in Village Riko, PH No.21, Tahsil Arang, District – Raipur.

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(iii) That this Hon'ble Court may kindly be pleased to quash the notification issued under Section 4 of the Land Acquisition Act 1894 in Land Acquisition Case No. 8/82 year 2012-2013, in Village Riko, PH No.21, Tahsil-Arang, District – Raipur.

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(iv) That this Hon'ble Court may kindly be pleased to quash the notification issued under Section 6 of the

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Land Acquisition Act 1894 in Land Acquisition Case No. 8/82 year 2012-2013, in Village Riko, PH No.21, Tahsil Arang, District – Raipur.

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(v) That, this Hon'ble Court may kindly be pleased to quash the n award dated 31/12/2015 passed under Section 23 of the new Act of 2013 in Land Acquisition Case No.8/82 year 2012-2013, in Village Riko, PH No 21, Tahsil - Arang, District – Raipur.

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(vi) That, this Hon'ble Court may kindly be pleased to call for the land record of village Kotni.

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(vii) That, this Hon'ble Court may be pleased to pass any other relief that this Hon'ble Court may please deem fit and proper.”

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The challenge of the land acquisition proceeding was on the ground that Section 50 and 56 of the Nagar Tatha Gram Nivsh Adhiniyam, 1973 have not been complied with either by NRDA or by the State Government. While hearing objection under Section 5A of the Land Acquisition Act, 1894 (in short ‘old Act of 1894’), the authorities are required to consider the objection carefully, but the land acquisition officer, at the instance of NRDA, without applying its mind decided objection whereby the poor formers have been deprived from their livelihood and the notification under Section 6 issued in very hurry and mechanical manner. The notification under Section 6 of the Land Acquisition Act, 1894 can be issued only if the appropriate Government, on an objective

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application of mind to the objections filed by the interested persons including the land owners and the report of the Land Acquisition Officer, satisfies that the land is needed for the particular purpose specified in the notification issued under Section 4(1) of the Land Acquisition Act, 1894.

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At the time of said acquisition of land, no rehabilitation plan has been disclosed by the State Government and therefore, without any rehabilitation plan the instant land acquisition proceeding is liable to be quashed. The Collector and Land Acquisition Officer are required to apply their mind whether the land is required for public purpose or not, then only decision will be taken to issue or not to issue notification under Section 6 of the Land Acquisition Act, 1894.

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It is further case of the petitioners that on the request made by NRDA to the Land Acquisition Officer, Arang, the land acquisition case has been registered on 21-03-2013, whereas, on that day the SDO (Revenue) Arang was not appointed as Land Acquisition Officer by the appropriate Government, therefore, the notification under Section 4 of the Land Acquisition Act, 1894 itself vitiated.

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It is further case of the petitioners that new Act of 2013 came into force from 01-01-2014 and therefore, after enforcement of the new Act of 2013, publication of notice under Section 6 of the old Act of 1894 is null and void as the same has been published on 03-01-2014. In all those cases where the award has not been

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passed under the old Act of 1894 and the new Act of 2013 has came into force, in such matters the award should be passed within two years from the notification under Section 4 of the Land Acquisition Act, 1894. In the present case, the notification under Section 4 was issued on 21-03-2013, whereas, the award has been passed on 31-12-2015, i.e., after lapse of more than 2 and ½ years from the publication of notification of Section 4 of the Land Acquisition Act, 1894 and fresh proceeding should have been started for acquisition of land under the new Act of 2013.

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It is also case of the petitioners that under Section 25 of the new Act of 2013, award has to be passed within a period of 12 months from the date of declaration under Section 19 and therefore, the award should have been passed on or before 0301-2015 which is the date of publication of notification under Section 6 of the old Act of 1894. If the award is not passed on or before 03-01-2015, then in view of Section 25 of the new Act of 2013 the entire land acquisition proceeding would lapse.

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Respondents No.1 to 3 and 5 to 6/State had filed their return and submitted that the land acquisition proceeding was initiated on the request made by the NRDA for acquisition of land for the purpose of construction and development of Naya Raipur under the Naya Raipur Development Plan, 2031 which was notified by the State Government on 21-03-2013 and the land acquisition case No.8/82 of village Riko Tahsil Arang, District Raipur for acquisition of total land admeasuring 128.39 hectare was initiated. Thought, the

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issuance of notification under Section 4, hearing of objection under Section 5A of the Land Acquisition Act, 1894 have not been disputed by the State, however, it is submitted by them that the objections raised by the villagers under Section 5A of the Land Acquisition Act, 1894 have duly been heard and decided by the competent authority and the appropriate Government has accepted the recommendation made by the Land Acquisition Officer regarding rejection of the objections. Ample opportunity was provided to the villagers by the Land Acquisition Officer and each and every objection raised by them have duly been considered. The rejection of their objection have duly been approved by the Divisional Commissioner and after rejection of their objection notification under Section 6 of the Land Acquisition Act, 1894 was issued on 19-12-2023 and the same has also been published in two daily newspapers on 23-12-2023 in Navbharat and Dainik Bhaskar.

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It is also the case of the State Government that Section 24 of the new Act of 2013 provided that if the proceeding under the Land Acquisition Act, 1894 had been initiated and award under Section 11 of the old Act of 1894 has not been made, then the compensation shall be determined in accordance with the provisions of the new Act of 2013. Since the proceeding of land acquisition was initiated under the old Act of 1894 and it could not be finalized and the new Act of 2013 came into existence from 0101-2014, the proceeding started under the old Act of 1894 should

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come to a logical end subject to condition that if the award has not been made, then compensation will be determined under the new Act of 2013 and therefore, issuance of the notification under Section 4, 6 and also passing of the award is strictly in accordance with law and the petition is liable to be dismissed.

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Respondent No.4 NRDA has also filed its return and submitted that the present petitioners have not filed any objection under Section 5A of the Land Acquisition Act, 1894 and after hearing the concerned land owners, notification under Section 6 of the Land Acquisition Act, 1894 was published in official Gazette on 03-012014. He would also submit that Section 24 of the new Act of 2013 provides that if the land acquisition proceeding initiated under the old Act of 1894 could not be finalized, then all the provisions of the new Act of 2013 relating to the determination of the compensation shall apply and therefore, considering the provisions of Section 11 and 24 of the new Act of 2013 the award has been passed on 31-12-2015 which is well within the stipulated time. Hence, there is no illegality or infirmity in the land acquisition proceeding and the writ petition is liable to be dismissed.

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After considering the submissions made by the learned counsel for the respective parties, the learned Single Judge has passed the order on 27-11-2018 and allowed the writ petition filed by the petitioners and quashed the proceeding of land acquisition case No.8/82 initiated with respect to the total land of 128.39 hectares of Village Riko, Tahsil Arang, District Raipur. Hence, this appeal by

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NRDA.

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Learned counsel for the appellant would submit that the learned Single Judge has overlooked the provisions of Section 24 of the new Act of 2013 and has passed erroneous order. He would further submit that the present petitioners have never raised any objection under Section 5A of the Land Acquisition Act, 1894. The award dated 31-12-2015 cannot be aversely affected under the provision of Section 25 of the new Act of 2013 particularly when the statute permits continuation of acquisition proceeding in accordance with the provisions of Section 24(1)(a) of the new Act of 2013. It is also submitted by him that the appellant/respondent No.4 is already in possession of the concerned land which is the part of his development plan, therefore, quashing of land acquisition proceeding would create more complications in the matter and the appeal deserves to be allowed.

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On the other hand, learned counsel for the respective respondents have submitted that the order passed by the learned Single Judge is strictly in accordance with law as the award has not been passed within two years of publication of notice under Section 4 of the old Act of 1894. He would further submit that the issue has been settled by the Hon’ble Supreme Court in the matter of Haryana State Industrial and Infrastructure Development Corporation Limited and others Vs. Deepak Aggarwal and others , reported in (2023) 6 SCC 512 and prayed for dismissal of the writ appeal.

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We have heard learned counsel for the parties and perused the documents annexed with the writ petition as well as the writ appeal and also gone through the judgment passed by the Hon’ble Supreme Court.

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In the present case, the facts are not specifically disputed by either of the parties. The issuance of notification under Section 4 of the Land Acquisition Act, 1894 on 21-03-2013, hearing of the objection under Section 5A of the Land Acquisition Act, 1894 on 12-06-2013 and the publication of notification under Section 6 on 03-01-2014 are not in dispute. The legal question emerged in the case is that, whether the award which has been passed beyond the period of one year after publication of notice under Section 4 of the Land Acquisition Act would be lapsed or not.

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The similar issue was came up before the Hon’ble Supreme Court in the matter of Haryana State Industrial and Infrastructure Development Corporation Limited (supra) and the Hon’ble Supreme Court has held in para 24, 26, 27, 28 and 47 of its judgment that:-

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“ 24. A careful scanning of all the decisions cited by both sides would thus reveal that all those decisions hold that land acquisition proceedings under the LA Act begin with the publication of a notification under sub-section (1) of Section 4. A declaration under Section 6 of the LA Act is one of the steps under the LA Act which ultimately culminates into the conclusion of the proceedings by making an award and taking over possession of the acquired land. A declaration under Section 6 cannot be made without holding an inquiry unless urgency clause under Section 17 is applied. Publication of a notification under sub-section (1) of Section 4 of the LA Act is condition precedent for taking further steps. Hence, such a notification is the starting point of acquisition proceedings under the LA Act. The initiation of the proceedings is by the publication of the notification under sub-section (1) of Section 4 of the LA Act.

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26. We are of the considered view that while construing the expression "initiated" used in Section 24(1) of the 2013 Act with reference to commencement of acquisition proceedings under the LA Act, the decision in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] is also to be borne in mind. In Ambica Quarry Works case (supra) while construing the words "may be renewed" this Court held that all interpretations must subserve and help implementation of the intention of the Act concerned.

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27. The legislative intention behind bringing up the 2013 Act was to have a unified enactment facilitating land acquisition for industrialisation, infrastructure and urbanisation projects in a timely and transparent manner and at the same time, providing for just and fair compensation, to make adequate provision for rehabilitation and resettlement mechanism for affected persons and their families. As a Preamble its Objects and Reasons have been given in the 2013 Act thus:

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“An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, 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 and 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 make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring 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."

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28. Bearing in mind the aforesaid legislative intention we will have to construe Section 24 and also the word "initiated" employed in Section 24(1) of the 2013 Act. The word "initiated" has to be construed with a view to implement the aforesaid twin purposes of providing fair and just compensation and facilitating acquisition of land for industrialisation, infrastructure and urbanisation projects. We have already referred to the impact of "initiation" of land acquisition proceedings and its culmination in an award under Section 11 of the LA Act and also non-culmination in such an award.

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47. To conclude, we hold that for the purposes of sub-section (1) of Section 24 of the 2013 Act, the proceedings under the LA Act shall be treated as initiated on publication of a notification under sub-section (1) of Section 4 of the LA Act. We further hold that when clause (a) of sub-section (1) of Section 24 of the 2013 Act is applicable, the proceedings shall continue as per the LA Act. However, only for the determination of compensation amount, the provisions of the 2013 Act shall be applied”

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12. In the matter of The Executive Engineer, Gosikhurd Project

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Ambadi, Bhandara, Maharashtra Vidarbha Irrigation

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Development Corporation Vs. Mahesh and others , reported in (2022) 2 SCC 772 the Hon’ble Supreme Court has held in para No.29, 30 and 31 of its judgment that :-

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“ 29. Given the object and purpose behind Sections 24 and 26 to 30 of the 2013 Act, we notice that practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11-A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act. This would mitigate against the underlying legislative intent behind prescription of time for making of an award in respect of saved acquisition proceedings initiated under the repealed 1894 Act, which is twofold: (i) to give sufficient time to the authorities to determine compensation payable under the 2013 Act; and (ii) to ensure early and expedited payment to the landowners by reducing the period from two years under Section 11-A of the 1894 Act to twelve months under Section 25 of the 2013 Act. In case of declarations issued in January 2012, on application of Section 11-A of the 1894 Act, the time to determine compensation under the 2013 Act would vary from a day to a month, and while in cases where the declarations were issued within twelve months of the repeal of the 1894 Act, the landowners would be at a disadvantage as an award beyond the twelve-month period specified in Section 25 of the 2013 Act would be valid. In the first set of cases, given the onerous factual and legal exercise involved in determination of compensation and the need to issue notification under Section 26(2) of the 2013 Act, publication of the awards would be impractical. Hasty and incorrect awards would be deleterious for the landowners. If the awards are not pronounced, the acquisition proceedings would lapse defeating the legislative intent behind Section 24(1)(a) of the 2013 Act to save such proceedings. We would, therefore, exercise our choice to arrive at a just, fair and harmonious construction consistent with the legislative intent.

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30. A rational approach so as to further the object and purpose of Sections 24 and 26 to 30 of the 2013 Act is required. We are conscious that Section 25 refers to publication of a notification under Section 19 as the starting point of limitation. In the context of clause (a) to Section 24(1) of the 2013 Act there would be no notification under Section 19, but declaration under Section 6 of the 1894 Act. When the declarations under Section 6 are valid as on 1-1-2014, it is necessary to give effect to the legislative intention and reckon the starting point. In the context of Section 24(1)(a) of the 2013 Act, declarations under Section 6 of the 1894 Act are no different and serve the same purpose as the declarations under Section 19 of the 2013 Act.

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31. Consequently, we hold that in cases covered by clause (a) to Section 24(1) of the 2013 Act, the limitation period for passing/making of an award under Section 25 of the 2013 Act would commence from 1-1-2014, that is, the date when the 2013 Act came into force. Awards passed under clause (a) to Section 24(1) would be valid if made within twelve months from 1-1-2014. This dictum is subject to the caveat stated in paras 20 to 23 (supra) that a declaration which has lapsed in terms of Section 11-A of the 1894 Act before or on 31-12-2013 would

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not get revived.”

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The Division Bench of Hon’ble Bombay High Court in the matter of Vitthal Rama Pawar (Katkari) and others Vs. Deputy Collector (Acquisition) Raigad-Alibag and others , reported in 2024 SCC OnLine Bom 149, has held in para No.21 and 22 of its judgment as under :-

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“ 21. Applying the aforesaid principles, we are unable to accept the submission of Ms. Bane that the decision rendered by the Hon'ble Supreme Court in Haryana State Industrial & Infrastructure Development Corporation Limited (supra) has impliedly overruled its decision in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra). This is more so when one take into consideration that the said judgment in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) has been specifically referred to in Haryana State Industrial & Infrastructure Development Corporation Limited (in paragraph 9 thereof), and the same has not been overruled, either expressly or by necessary implication. Another factor that persuades us to take this view is that one of the Judges in both the matters was the same (A.M. Khanvilkar, J. as he then was). If the Supreme Court, in Haryana State Industrial & Infrastructure Development Corporation Limited wanted to overrule its judgment in Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra), it would have expressly done so. We therefore find that the argument of Ms. Bane is wholly misplaced and so is the reliance on the judgment of the Hon'ble Supreme Court in the case of Haryana State Industrial & Infrastructure Development Corporation Limited (supra).

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22. As mentioned earlier, this point is squarely covered by the decision of the Supreme Court in the case of Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation (supra) which clearly stipulates that in cases falling under Section 24(1)(a) of the 2013 Act, the limitation period for passing an Award would commence from 1^st January, 2014 and the same would have to be passed within a period of 12 months thereafter, subject to any stay being granted by any Court. In other words, the period during which the stay was operating would have to be excluded for the purposes of calculating the period of 12 months. This has admittedly not been done in the present case. Therefore, on this count also, the entire acquisition proceedings are bad and the Awards passed pursuant thereto, are also unsustainable.”

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The issue involved in this case has already been set at rest by the

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Hon’ble Supreme Court and therefore, this Court cannot take a

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different view in the case having similar issue to that of Haryana State Industrial and Infrastructure Development Corporation Limited case (supra) and The Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation case (supra). The learned Single Judge has rightly considered Section 25 of the new Act of 2013 that if the award has not been passed within 12 months, the entire proceeding for acquisition of the land shall lapse and liberty was given to the respondents to draw fresh proceedings of land acquisition if they still require any land for public purpose and thus, even if the old land acquisition proceeding has been lapsed/quashed the respondents/State have every right to initiate fresh land acquisition proceeding under the new Act of 2013 if they still requires any land for public purpose.

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In view of the foregoing, we do not find any scope of interference in the order passed by the learned Single Judge and therefore, the writ appeal is liable to be and is hereby dismissed.

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Sd/Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Aadil

Naya Raipur Development Authority (Now Atal Nagar Vikas Pradhikaran) v. Gaukaran

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Naya Raipur Development Authority (Now Atal Nagar Vikas Pradhikaran) v. Gaukaran

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