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IN THE HIGH COURT AT CALCUTTA
ARIJIT BANERJEE, APURBA SINHA RAY, JJ.
The State of West Bengal and Others – Appellants
Versus
Pranab Kumar Mukherjee – Respondent
MAT No. 72 of 2018, IA Nos. CAN 1, 2 of 2018 (Old Nos. CAN, 880, 879 of 2018)
Decided On : 16-08-2023
LAND ACQUISITION - Compensation - Computation - Applicability of provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 24(1)(a) - Notification under Section 4 of Land Acquisition Act, 1894 - Survival and applicability of provisions of 2013 Act - Delay in filing claim for compensation - Waiver of right to claim compensation - Principles.
Fact of the Case:
The appellant State Government challenged a judgment directing the competent authority to determine the market value of the land in terms of Section 26 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) and thereafter follow the process of law as laid down under the 2013 Act. The land in question was acquired by the State Government for construction of a road in 2007. Various notifications were issued under Section 4 of the Land Acquisition Act, 1894 (1894 Act) in connection with the acquisition proceedings. However, no declaration was published under Section 6 of the 1894 Act, and the proceedings lapsed. Subsequently, a fresh notification under Section 4 of the 1894 Act was issued in 2011, and the writ petition was filed in 2016 seeking compensation in terms of the 2013 Act.
Finding of the Court:
The Court held that: - Section 24(1)(a) of the 2013 Act provides that where no award under Section 11 of the 1894 Act has been made, then all provisions of the 2013 Act relating to the determination of compensation shall apply. - As per the Supreme Court's decisions in Indore Development Authority v. Manoharlal and Others and Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Deepak Agarwal and Others, where a Section 4 notification under the 1894 Act was issued prior to January 1, 2014 (the date of commencement of the 2013 Act), such notification would be alive even after that date notwithstanding that as on that date no award had been made. Proceedings would continue under the provisions of the 1894 Act in so far as the procedure was concerned. However, compensation would be computed applying the provisions of the 2013 Act relating to determination of compensation. - The notification dated September 26, 2011, must be taken to be the notification by which the land acquisition proceedings under the 1894 Act were initiated, as it was the last notification issued under Section 4 of the 1894 Act. - The State Government's invocation of the power under Section 17 of the 1894 Act was untenable as notice under Section 9(1) of the 1894 Act was never issued, and hence, the question of the land having vested in the State under Section 17(1) of the Act could not arise. - The writ petitioner could not be said to have waived his right to claim compensation as he had been making demand for compensation since 2012 and the State Government had failed to act in accordance with law.
Issues: 1. Whether the provisions of the 2013 Act would apply to the determination of compensation in the present case where no award had been made under the 1894 Act? 2. Which notification under Section 4 of the 1894 Act should be taken as the starting point of the land acquisition proceedings? 3. Whether the State Government's invocation of the power under Section 17 of the 1894 Act was valid? 4. Whether the writ petitioner had waived his right to claim compensation due to delay in filing the writ petition.
Ratio Decidendi: 1. Section 24(1)(a) of the 2013 Act makes it clear that where no award has been made under the 1894 Act, all provisions of the 2013 Act relating to the determination of compensation shall apply to the acquisition proceedings. 2. In the absence of any contrary indication, the last notification issued under Section 4 of the 1894 Act, i.e., the notification dated September 26, 2011, must be taken to be the notification by which the land acquisition proceedings under the 1894 Act were initiated. 3. The State Government's invocation of the power under Section 17 of the 1894 Act was untenable as notice under Section 9(1) of the 1894 Act was never issued, and hence, the question of the land having vested in the State under Section 17(1) of the Act could not arise. 4. The writ petitioner could not be said to have waived his right to claim compensation as he had been making demand for compensation since 2012 and the State Government had failed to act in accordance with law.
Final Decision: The appeal filed by the State Government was dismissed. The Court directed the First Land Acquisition Collector/ the Competent Authority to complete the process of determination of the compensation amount in the manner indicated in paragraph 26 of the judgment within 12 weeks from the date of the judgment and pay the amount to the respondent/writ petitioner within two weeks thereafter.
JUDGMENT :
ARIJIT BANERJEE, J.
1. This appeal is directed against a judgment and order dated May 16, 2016, whereby the writ petition of the respondent no. 1 herein being W.P. No. 5590(W) of 2016, was disposed of with the following direction:
2. The undisputed facts of the case are that land of the respondent/writ petitioner was taken over by the State Government for construction of Haringhata-Panpur Road in the District of Nadia, in connection with L.A. Case No. 2/PWD/04-05. A notice under Section 4 of the Land Acquisition Act, 1894, was issued on January 10, 2007. No declaration was published under Section 6 of the 1894 Act. Hence, the acquisition proceedings initiated by the notice under Section 4 of the 1894 Act in 2007, lapsed.
3. It appears that again a notification dated January 19, 2009, was issued under Section 4 of the 1894 Act, in connection with the said land acquisition case. In the said notification the provision of Section 17(4) of the Act was invoked whereby the requirements of Section 5A were dispensed with. Again the said proceeding appears to have lapsed by reason of there being no declaration under Section 6 of the 1894 Act.
4. Yet another notification under Section 4 of the 1894 Act, dated April 29, 2010, was issued in connection with the said L.A. case. No light has been thrown by either party on the fate of that notification.
5. Finally, another notification dated September 26, 2011, was issued under Section 4(1) of the 1894 Act. In such notification there is no mention of Section 17(4) of the 1894 Act.
6. In the mean time the respondent no. 1 herein had approached a learned Single Judge of this Court in the writ jurisdiction by filing WP No 11152(W) of 2008 for payment of compensation in relation to the said LA Case. Such writ petition was disposed of by the learned Judge by an order dated September 24, 2008, the material portion whereof reads as follows:
Having heard the learned counsels appearing for the respective parties and after considering the facts and circumstances of this case, I direct the competent authority to conclude the above proceeding and to pay award money to the owners of plots of land under reference within a period of six weeks from the date of communication of this order.”
7. There was no follow up action even with respect to the notification dated September 26, 2011, under Section 4 of the 1894 Act. There was no declaration under Section 6 of the Act.
8. In the aforesaid factual scenario the respondent no. 1 approached the learned Single Judge in the present round of litigation. The order under appeal was passed directing the Government to determine and pay compensation to the respondent no. 1/writ petitioner in terms of the provisions of the 2013 Act.
9. Being aggrieved, the State Government has come up by way of this appeal.
10. Learned Advocate for the appellants/State submitt
Where no award has been made under the Land Acquisition Act, 1894, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, re....
Where Section 24(1)(a) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) applies, i.e. where there is no Award on the date o....
The main legal point established in the judgment is that the acquisition proceedings lapsed as no award was made within 2 years of the declaration under Section 6 of the 1894 Act, and the State was d....
No lapse of proceedings under the Act of 1894 occurs if compensation has been paid and possession of the acquired land has been assumed, even if no award has been made.
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