[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11660 of 2015 [ENTITY] (CHARAN) & 33 Petitioner(s) Versus [ENTITY] & 5 Respondent(s) Appearance: [ENTITY], ADVOCATE for the Petitioner(s) No. 1 - 34 MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 - 34 Mr.[ENTITY], ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1 - 6 NOTICE NOT RECD BACK for the Respondent(s) No. 6 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 6 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 28/10/2015 ORAL ORDER (PER : HONOURABLE MR.JUSTICE [ENTITY])
The petitioners have prayed for a declaration that the acquisition of their land under the [ACT], 1894 has lapsed in view of [SECTION] of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013').
2. Brief facts are as under:
The petitioners are owners of various parcels of agricultural lands HC-NIC Page 1 of 8 Created On Tue Nov 03 00:43:51 IST 2015 situated in Village Parodiya, Taluka Khambhaliya, District Devbhoomi Dwarka. The Government required such land for public purpose. Notification under [SECTION] of the [ACT] was therefore, issued on 02.03.2001 and notification under [SECTION] of the [ACT] was issued on 18.12.2001. The award was passed by the Land Acquisition Officer under [SECTION] of the [ACT] on 26.08.2002. The case of the petitioners is that after passing of the award, till date neither compensation has been paid nor possession of the land has been taken from the petitioners. The petitioners continued to enjoy uninterrupted possession of the land and put such land to agricultural use. The petitioners therefore, contend that in terms of [SECTION] of the Act of 2013, the acquisition proceedings would lapse. In the petition with respect to these aspects averments have been made, which read as under:
"3.9 The petitioners state that even though the Special Land Acquisition Officer has passed the award under [SECTION] of the [ACT] on 26.08.2002, till today the petitioners have not received any compensation with respect to the land acquired and petitioners are in possession of the land in question."
In the affidavit-in-rejoinder the petitioners have further contended that, "6. With reference to paras 6 and 7 of the affidavit in reply I say and submit that actual possession of the land in question are with the petitioners and they are cultivating it mere mutation of entry in revenue record on 10.06.2004 has no value because as stated in affidavit in reply more particularly in para 8 the HC-NIC Page 2 of 8 Created On Tue Nov 03 00:43:51 IST 2015 answering respondent forwarded amount on 30.03.2010 meaning thereby amount was not paid to the petitioners who are land owners meaning thereby after the award 26.08.2002 the amount of compensation was not paid to the land owners/ petitioners, it is needless to submit that merely forwarding of amount from one department to other department of the State has no meaning because amount was not paid and has not been paid to the petitioners and therefore, prior making payment of compensation the respondents authorities are not entitled to mutate its name in the revenue record, under the circumstances as stated in the memo petition possession of the land in question are with the petitioners and amount of compensation is not paid to the petitioner in that view of the matter acquisition proceedings deserves to be quashed and set aside considering the provisions of law more particularly [SECTION] of the [ACT] as well as considering the reported judgment of the Hon'ble Supreme Court."
3. The State Government has filed affidavit opposing the petition. In such affidavit dated 22.09.2015 with respect to possession it is averred as under:
"6. It is further submitted that after following due procedure award under [SECTION] of the Act was passed on 26.08.2002 and therefore, after following due procedure the land acquisition proceedings had been completed and thereafter on 10.06.2004 the names of the authority of the answering respondent had been mutated in the revenue record and the entry being entry no.718 had been mutated to that effect. The copy of the 7/12 abstract had produced at page no.41 with the memo of the petition."
Regarding payment of compensation in the affidavit it is stated that, "8. It is most respectfully submitted that after received the grant, the answering respondent being acquiring body had made payment of the compensation of Rs.1,75,669/- and the same was forwarded by the Assistant Collector vide cheque no.004201 dated HC-NIC Page 3 of 8 Created On Tue Nov 03 00:43:51 IST 2015 30.03.2010 to the Mamlatdar, Jam Khambhaliya and thereafter the said amount had been cleared with the District Treasury Office, Jamnagar."
It can thus, be seen that with respect to the question of possession what the respondents had to offer was mutation entry in the revenue record made in the year 2004. No independent evidence is produced to demonstrate that possession was lawfully taken over after drawing [ENTITY] and following necessary procedure.
Regarding compensation it is only stated that an amount of Rs.1,75,669/- towards compensation was forwarded by the Assistant Collector under cheque dated 30.03.2010 to the Mamlatdar, Jam Khambhaliya. Said amount has been cleared with the District Treasury Office, Jamnagar.
4. On both the counts, the stand of the Government is unacceptable. Firstly, the petitioners' firm assertion that possession of the land was taken over has not been sufficiently rebutted. Mere statement that entries were made in revenue records, by itself, would not be sufficient. It is true that revenue entries, prima facie, indicate possession and occupation of the land in question. However, when such possession is allegedly taken over by the Government machinery pursuant to land acquisition proceedings, there are set of rules for doing so, which surely provide contemporaneous evidence evidence of actual possession being taken over.
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5. More important aspect of payment of compensation is concerned mere sending of amount through cheque by the Government to the Mamlatdar, which was clear to Government Treasury, under such circumstances, can be taken as payment of compensation to the persons interested. The [ACT] envisages payment or tendering compensation if the person interested does not accept such compensation though tendered. In case of failure to receive compensation the Land Acquisition Officer has to deposit the same with the reference court. Only upon payment or upon failure to receive payment, upon deposit with reference court can the liability of payment of compensation be stated to have been discharged.
6. In a recent judgment in the case of The [PRECEDENT], it was observed as under:
"12. With regard to the payment of compensation, it was stated in the additional affidavit that the compensation due to the appellant was deposited in the Government Treasury on 7th July, 1995 and the enhanced compensation was deposited in the Reference Court first on 3rd September, 2004 and thereafter on 24th February, 2012. It was further stated that the original compensation awarded to the appellant, that is, Rs. 35,52,528/- was subsequently deposited in the Reference Court by the Land Acquisition Collector on 26th June, 2014 after the Act came into force.
HC-NIC Page 5 of 8 Created On Tue Nov 03 00:43:51 IST 2015 Law on the subject.
13. The law on the subject is now no longer res integra. The leading judgment in respect of [SECTION] of the Act was delivered in Pune Municipal Corporation. It was concluded in paragraph 20 of the aforesaid decision, that the Award had been made by the Land Acquisition Collector more than five years prior to the commencement of the Act and compensation had not been paid to the landowners/persons interested nor deposited in the Court. It was held that the deposit of compensation in the Government Treasury is of no avail. Consequently, there was no option but to hold that the land acquisition proceedings were deemed to have lapsed under [SECTION] of the Act. Paragraph 20 reads as follows:-
"From the above, it is clear that the award pertaining to the subject land has been made by the Special and Acquisition Officer more than five years prior to the commencement of the [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] of the [ACT]."
14. Subsequently, this decision was followed in [PRECEDENT]. It was held, after examining the Objects and Reasons for the Act that since the possession of the acquired land had not been taken and compensation had been deposited with the Revenue Department, it could not be termed as "deemed payment" of the compensation as held in Pune Municipal Corporation. Accordingly, the appeals filed by the Union of India were liable to be dismissed. In this context, it may be noted that reference was also made to two other decisions of this Court namely [PRECEDENT], and [PRECEDENT], which were to the same effect.
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19. Applying the law laid down by the Constitution Bench, it must be held that the appellant had an accrued right which must be recognized by [SECTION] of the Act. The Ordinance which purported to take away such an accrued right would have to be treated as prospective unless the legislative intent was clearly to give it retrospective effect. As mentioned above, this issue does not arise in the present case but is being mentioned only to buttress the conclusion arrived at by this Court in [ENTITY] and subsequent decisions."
7. We now consider provisions of [SECTION] of the Act of 2013, which reads as under:
"24. Land acquisition process under [ACT] shall be deemed to have lapsed in certain cases. -
(1) (2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings initiated under the [ACT], where an award under the said [SECTION] 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] of the said [ACT], shall be entitled to compensation in accordance with the provisions of this Act."
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8. It can thus, be seen that for any acquisition which has commenced five years prior to the date of commencement of the Act of 2013, which came into effect on 01.01.2014, if either possession of the land has not been taken over or compensation has not been paid, the acquisition would lapse. In view of such legal provisions and factual conclusions we have arrived at the petition is allowed. It is declared that acquisition in question has lapsed by virtue of [SECTION] of the Act of 2013. The petition is disposed of accordingly. Direct service is permitted.
([ENTITY], J.) ([ENTITY], J.) karim HC-NIC Page 8 of 8 Created On Tue Nov 03 00:43:51 IST 2015