Back
2017 Supreme(P&H) 2605
IN THE HIGH COURT OF PUNJAB AND HARYANA
S.S. Saron, Rajiv Narain Raina, Lisa Gill, JJ.
Deepak Aggarwal – Appellant
Vs.
State of Haryana – Respondent
CWP No. 4371 of 2015 (O&M)
Decided On : 31-08-2017
For the Petitioners:M.L. Sarin, Senior Advocate, with Nitin Sarin, Ritesh Aggarwal, Ms. Ankita Sambyal and Shakti Singh, Advocates, Shailendra Jain, Senior Advocate, with Ms. Mannu Chaudhary, Advocates, Puneet Bali, Senior Advocate with Prateek Gupta, Advocates, P.S. Khurana, Advocate
For the Respondents:Amar Vivek, Additional Advocate General, Haryana, Suvir Sehgal, Additional Advocate General, Chetan Mittal, Senior Advocate, with Udit Garg and Mayanak Aggarwal, Advocates
IMPORTANT POINT
Land Acquisition – Lapsing of Proceedings – Proceedings can be said to be initiated only after due application of mind which is at the stage of declaration under 6 of the 1894 Act and not the date of notification u/s 4 of the 1894 Act
Headnote:(A) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, S.24 & S.114 – Lapsing of Proceedings – Date of Initiation of proceedings under 1894 Act – Held; the proceedings for acquisition of land can be said to be initiated only after due application of mind which is at the stage of declaration under 6 of the old 1894 Act and not the date of notification u/s 4 of the old 1894 Act;
(ii) The applicability of the provisions of the New 2013 Act for payment of compensation would only be if proceedings under the Old 1894 Act had been initiated i.e. declaration u/s 6 has been issued before 01.01.2014 – Land Acquisition Act, 1894, S.4 & S.6. (Para 110)
(B) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, S.24 & S.114 – Lapsing of Proceedings – Held;
(a) The proceedings in pursuance of notification under Section 4 of the Old 1894 Act are limited only for purposes of conducting a preliminary inquiry for carrying out the survey and suitability of the land proposed to be acquired. Besides, apprise the landowners of the appropriate Government's intention to acquire the land so that they can file objections, if any and also hear the objections.
(b) For the purpose of payment of compensation, the date of notification under Section 4 of the Old 1894 Act is to be taken for the purpose of fixing the rate to be paid as after publication of a notification the land prices freeze and there are no further transactions, besides, if there are sales at the said stage, these are mostly distressed sales. Therefore, even though the date of notification under Section 4 of the Old 1894 Act is taken as the date for the determination of the rate of compensation but nevertheless is not to be taken as the date of initiation of proceedings under the Old 1894 Act. The proceedings for acquisition of land can be said to be initiated only after due application of mind which is the stage of declaration under Section 6 of the Old 1894 Act.
(c) The Legislature by Section 24 (1) of the New 2013 Act has provided for the land acquisition process deemed to have lapsed in certain cases under the Old 1894 Act. It is provided that notwithstanding anything contained in the New 2013 Act in any case the land acquisition proceedings 'initiated' under the Old 1894 Act where no award under Section 11 thereof had been made, then all the provisions of the New 2013 Act relating to determination of compensation are to apply. The applicability of the provisions of the New 2013 Act for payment of compensation would only be if proceedings under the Old 1894 Act had been initiated before 01.01.2014 which is the appointed day for the enforcement of the New 2013 Act.
(d) The applicability of Section 114 of the New 2013 Act which deals with repeal and savings is clear to the extent it envisages that the Old 1894 Act shall stand repealed. The effect of Sub Section (2) is that save as otherwise provided in the New 2013 Act, the repeal under Sub Section (1) shall not be held to prejudice or effect the general application of Section 6 of the 1897 GC Act. – Repeal is not a matter of mere form but is of substance depending on the intention of the Legislature. If the intention indicated either expressly or by necessary implication in the New 2013 Act was to abrogate or wipe off the Old 1894 Act wholly or in part then it would be a case of total or pro tanto repeal. The repeal in respect of the Old 1894 Act is total insofar as Sub Section (1) of Section 114 of the New 2013 Act provides; however, by Sub Section (2) it does not prejudice or affect the general application of Section 6 of the 1897 GC Act.
(e) The New 2013 Act provides for several contemporary, progressive and socially beneficial legislative measures breaking away from the confines of the past archaic law and provides mechanisms for determination of social impact and public purpose which is not there in the Old 1894 Act. The New 2013 Act is to be leaned towards providing for the beneficial provisions of legislation to the landowners whose land is sought to be acquired so that they get the benefits of the new legislative dispensation.
(f) The notification issued under Section 4 of the Old 1894 Act before the appointed day i.e. 01.01.2014 under the New 2013 Act would continue to remain operative in terms of Section 6 and Section 24 of the 1897 GC Act only if the proceedings under the Old 1894 Act have been 'initiated' before 01.01.2014 which would be that there has been due application of mind followed by declaration under Section 6 of the Old 1894 Act.
(g) A notification published under Section 4 of the Old 1894 Act in the official Gazette but in the newspaper later after the commencement of the New 2013 Act on 01.01.2014 would not be sustainable in law as the last dates of such publication and the giving of such public notice is to be taken as the date of the publication of the notification. It is only on the publication of the last of the notification that it can be said that there was notice to the affected parties so as to enable them to file objections.
(h) The hearing of objections under Section 5-A and the publication of notification under Section 6 of the Old 1894 Act would not be permissible after its repeal and after commencement of the New 2013 Act from 01.01.2014 as the proceedings cannot be said to have been 'initiated' under the Old 1894 Act in case the declaration under Section 6 thereof had not been issued and it is only when the declaration is issued that the land acquisition process can be said to have been 'initiated'. In other words, in case a declaration in terms of Section 6 of the Old 1894 Act is not notified before 01.01.2014, the land acquisition proceedings cannot be said to have been initiated and therefore, would lapse by virtue of Section 24 (1) of the New 2013 Act. (Para 112)
S.S. Saron, J.
This judgment and order will dispose of the reference made to the Full Bench by a Division Bench of this Court on 18.08.2015 in the case of ‘Deepak Aggarwal and another v. State of Punjab and others’, CWP No. 4371 of 2015. The facts are taken from the said writ petition although counsel appearing in the connected petitions, have also made submissions which are being considered and adjudicated upon.
2. The petitioners - Deepak Aggarwal and another by way of the petition under Articles 226/227 of the Constitution of India seek quashing of the notification dated 28.10.2013 issued by the Government of Haryana (Industries and Commerce Department) under Section 4 of the Land Acquisition Act, 1894 (‘Old 1894 Act’ - for short) and also the notification/declaration dated 27.10.2014 issued by the Haryana Government under Section 6 of said the Old 1894 Act.
3. The petitioners owned and possessed land measuring 5.03 acres in village Tepla, Tehsil Saha, District Ambala. Both the petitioners are 50% co-sharers of the acquired land along with their wives Mrs. Madhu Aggarwal and Mrs. Sunita Aggarwal who also are joint owners of land measuring 19 kanal 12 marlas. The respective holdings of the petitioners have been described in the petition along with a supporting map of the site.
4. The Government of Haryana had earlier on 23.12.2005 issued a notification under Section 4 of the Old 1894 Act proposing to acquire land measuring 278 acres 1 kanal situated in villages Dhakola, Saha, Tepla and Jawahargarh for the purpose of setting up a Growth Centre at Saha. (The said acquisition proceedings are hereinafter are referred to as the ‘previous acquisition proceedings’ - for short). According to the petitioners, no publication of the substance of the notification dated 23.12.2005 issued under Section 4 of the Old 1894 Act was carried out in the locality as required by the mandatory provisions of the Old 1894 Act. No ‘munadi’ (proclamation) was carried out in the locality in respect of the land which was to be acquired and neither was the notification issued under Section 4 of the Old 1894 Act, pasted at a convenient place.
5. The petitioners, namely, Deepak Aggarwal and Kalyan Aggarwal, in any case, filed objections before the Sub Divisional Officercum- Land Acquisition Collector (‘Collector’ - for short) under Section 5-A of the Old 1894 Act against the said notification dated 23.12.2005. In the proceedings under Section 5-A of the Old 1894 Act, the Collector, it is submitted, without issuing any notice to either of the petitioners fixed a purported date of hearing of the objections as 01.04.2006. On the said purported and unannounced date of hearing of objections of which the petitioners even were unaware, they could not put in appearance before the Collector and neither could they lead any evidence to support and substantiate their objections. The Collector, however, prepared a report under Section 5-A of the Old 1894 Act and submitted it to the State Government. The Collector, in fact, received 901 objections and it was humanly impossible for such huge number of objections/objectors to be heard on a single day. There was no mention of any individual and/or personal notices having been issued to the land owners in the report that was filed.
6. The Government of Haryana in the ‘previous acquisition proceedings’ issued a notification under Section 6 of the Old 1894 Act on 29.12.2006 in relation to the lands including the land owned by the petitioners. The petitioners along with others on 20.01.2008 filed a writ petition, i.e. CWP No. 1048 of 2008, in this Court assailing the notifications dated 23.12.2005 issued under Section 4 and dated 29.12.2006 issued under Section 6 of the Old 1894 Act. This Court in the said petition issued notices to the respondents and stayed the dispossession of the petitioners from their land. The Government of Haryana thereafter in exercise of powers under Section 48 of the Old 1894 Act decided to releas
