Maharana Pratap Charitable Trust vs State of Haryana

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(P&H) 1024

IN THE HIGH COURT PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice G.S. Sandhawalia
The Hon’ble Mr. Justice Kuldip Singh
C.W.P. No. 6860 of 2007 (O&M)
Maharana Pratap Charitable Trust (Regd)
v.
State of Haryana & Ors.
{Decided on 24/12/2014}

For the Petitioners:Mr. M.L. Sarin, Senior Advocate with Mr. Hemant Sarin and Nitin Sarin, Advocates.
For the Appearing Parties:Mr. Shailendra Jain, Senior Advocate with Mr. Mannu Chaudhary, Advocate and Mr. R.S. Rai, Senior Advocate with Mr. Rajeev Anand and Harsh Bunger, Advocates and Mr. Puneet Bali, Senior Advocate with Mr. Parveen Jain and Mr. Arun Gupta, Advocates and Mr. Mohan Jain, Senior Advocate with Mr. Dinesh Thakur, Mr. Fateh Saini and Ms. Arastu Chopra, Advocates and Dr. Ashwani Kumar, Senior Advocate with Mr. Aashish Chopra and Ms. Stuti Tandon, Advocates and Mr. Adarsh Jain, Advocate.
For the Respondents:Mr. B.R. Mahajan, Advocate General, Haryana, with Mr. Lokesh Sinhal, Additional AG, Haryana.
For the Land Owners:Mr. H.S. Hooda, AG, Haryana, with Mr. Kamal Sehgal, Additional Advocate General, Haryana, Mr. Ashok Aggarwal, Advocate General, Punjab, with Mr. P.S. Bajwa, Additional Advocate General, Punjab.
For the U.T., Chandigarh:Mr. Sanjeev Sharma, Senior Advocate, with Mr. Shekhar Verma, Advocate.
For the HUDA:Mr. Arun Walia, Senior Advocate with Mr. Gitish Bhardwaj and Mr. Sarv Daman Rathore, Advocates.
For the Respondent No. 4:Mr. Rajesh Sheoran, Advocate.

Headnote:Land Acquisition--Lapsing of Proceedings--Period of stay granted by a Court is required to be excluded for determining the period of five years for lapsing of proceedings under old Act.
       (A) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, S.24--Lapsing of Proceedings--Period of stay granted by a Court is required to be excluded for determining the period of five years for lapsing of proceedings under old Act--Therefore, the proceedings, which were subject matter of stay under the old Act, would be governed by the provisions of the old Act itself--This is the majority view of Full Bench Judgment--Land Acquisition Act, 1894, S.4.
       In view of the maxim actus curiae neminem gravabit or even in its absence, any interim order granted by the Court cannot prejudice any rights of the parties--It is necessary for the proper working of the justice delivery system--Once the Court has passed an order staying dispossession, the State could not take possession--If an order of the Court disables a person to take any action, the doctrine of nemo tentur ad impossible would be applicable, that is the law in general excuse a party, which is disabled to perform a duty and impossibility of performance of a duty is a good excuse--Still further, the latin maxim lex non cogit ad impossibilia, that is the law does not compel a man to do that which he cannot possibly perform--The maxim impotentia excusat legem, that is where the law creates a duty or charge and the party is disabled to perform it, without any default in him and has no remedy over, there the law will in general excuse him--Since, it was impossible for the State to take possession, therefore, the consequences of an interim order cannot be used against the state. (Para 61)
       (B) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, S.24--Lapsing of Proceedings--Benefit of S.24(2) the New Act is admissible even to those land owners, whose writ petitions have already been dismissed, and who by virtue of the interim stay did not permit the state to take possession of their land and declined the offer of compensation by the collector.(Para 63)
       (C) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, S.24--Lapsing of Proceedings--(Dissenting view)--Period of stay granted by a Court is not required to be excluded for determining the period of five years for lapsing of proceedings under Old Act.;
       In view of what has been discussed above, the point referred in CWP No. 6860 of 2007 titled as Maharana Partap Charitable Trust Versus State of Haryana and another, is answered in the manner that the principle of actus curiae neminem gravabit has no application to the provisions of Section 24(2) of the 2013 Act and as per law laid down by the Hon’ble Supreme Court in Shiv Raj Singh’s case (supra), Pune Municipal Corporation’s case (supra) and Sree Balaji Nagar Residential Association’s case (supra), the period of stay granted by the Courts is not to be excluded for determining the period of 5 years under Section 24(2) of the 2013 Act. (Para 79)
        (D) Interpretation of Statutes--Maxims--General maxims cannot be invoked to circumvent the express provisions of law or any authoritative pronouncement of the Superior Court on the ground that one or other legal maxim was not considered by the Court. (Para 79)
       Editor's Note: Division Bench of Supreme Court on 25/11/2014 has specifically held that period of 5 years is not to be excluded for determining the period of five years for lapsing of proceedings. This Judgment is reported as 2014(5) Law Herald (SC) 4264 : 2015(1) Law Herald (P&H) 658 (SC)

JUDGMENT

Mr. Hemant Gupta, J.: - In CWP No. 6860 of 2007, the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘the Act”), is the subject matter of opinion of this Bench consequent to an order dated 10.7.2014 passed by the Division Bench, of which one of us (Hemant Gupta, J.) was a member so as to examine whether the order of the Hon”ble Supreme Court in Union of India v. Shiv Raj & Others, (2014)6 SCC 564, would be applicable to the cases where there is an interim order passed by the Court. In other words, whether the period of stay granted by a Court is required to be excluded for determining the period of five years for lapsing of proceedings initiated under the Land Acquisition Act, 1894 (for short ‘the Old Act”).

2. The said questions arise out of the fact that the present writ petition was filed challenging the Notifications under Sections 4 and 6 dated 21.3.2006 and 20.3.2007 of the old Act. In the writ petition, an order of stay of dispossession was granted on 8.5.2007. The said order continues till today.

3. Subsequently, another question “Whether the benefit of Section 24(2) of the Act is admissible even to those land owners, whose writ petitions have already been dismissed, and who by virtue of the interim stay, did not permit the State to take possession of their land and declined the offer of compensation by the Collector” was also referred for the opinion of the Larger Bench in CWP No. 12066 of 2014 - (Mahinder Yadav v. State of Haryana), vide order dated 11.7.2014. The said writ petition arises out a fact that in the earlier writ petition (CWP No. 13277 of 1999), the notifications under Sections 4 and 6 dated 8.3.1989 and 7.3.1990 under the old Act, were the subject matter of challenge. Subsequently, Award No. 11 dated 18.3.1991 and Award No. 11 dated 5.3.1992 were announced. The earlier writ petition filed by the petitioner was dismissed as regards acquisition is concerned on 3.10.2013, but with a direction to consider the claim of the petitioner for allotment of an alternative site as per the Rehabilitation and Resettlement Policy. In the present writ petition, the petitioners claims that in view of Section 24 of the Act, the acquisition proceedings would be deemed to be lapsed as the possession of the land was not taken within five years prior to the commencement of the Act.

4. The issues raised are of considerable importance and we had the benefit of the assistance of Senior Counsels, on behalf of the land owners as also the Advocates General, Punjab and Haryana. We have heard all the Counsels who wanted to argue the matter.

5. At this stage, certain provisions of the Old Act, are extracted, to comprehend the issues raised.

“6. Declaration that land is required for a public purpose. -

(1) Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders an different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (!), irrespective of whether one report or different reports has or have been made (wherever required) under section 5-A, sub-section (2):

Provided that no declaration in respect of any particular land covered by a notification under section 4, subsection (1), -

(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or

(ii) published after the commenc

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2014 Supreme(P&H) 1024

IN THE HIGH COURT PUNJAB AND HARYANA [FULL BENCH]BeforeThe Hon’ble Mr. Justice Hemant GuptaThe Hon’ble Mr. Justice G.S. Sandhawalia The Hon’ble Mr. Justice Kuldip Singh C.W.P. No. 6860 of 2007 (O&M)Maharana Pratap Charitable Trust (Regd) v. State of Haryana & Ors. {Decided on 24/12/2014}

Cases Referred (66)

IN THE HIGH COURT PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice G.S. Sandhawalia
The Hon’ble Mr. Justice Kuldip Singh
C.W.P. No. 6860 of 2007 (O&M)
Maharana Pratap Charitable Trust (Regd)
v.
State of Haryana & Ors.
{Decided on 24/12/2014}