Feeling aggrieved and dissatisfied with the impugned judgment and order dated 31.08.2015 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.9740/2012 by which the Division Bench of the High Court of Gujarat has allowed the said writ petition and has declared that the acquisition with respect to the land in question is deemed to have // 2 // lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “Act, 2013”) as also the judgment and order dated 01.04.2016 passed by the High Court of Gujarat in Misc. A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “Act, 1894”) came to be issued on 11.04.1991 to acquire the land in question alongwith adjacent agricultural lands for the // 3 // purpose of re-settlement of Narmada Project oustees. 2 That, on 21.01.2009, the Assistant Commissioner, Sardar Sarovar Rehabilitation Agency cancelled the order dated 07.03.1995 by observing that the acquisition of the land in question has been completed and the land has been vested in Sardar Sarovar Rehabilitation Agency and on basis of that affected persons were allotted also and therefore, as per the legal provision, once an order is passed, it is mandatory to make the payment of compensation. Pursuant to the aforesaid order dated 21.01.2009 of the Assistant Commissioner, the Special Land Acquisition Officer vide communication / letter dated 05.04.2010 conveyed to the respondent herein – original land owner that his case for payment of compensation is fixed on 16.04.2010 in the office of Talati-cum-Mantri, Tarsava and therefore, he shall remain present and receive compensation. 3 Before the High Court, it was the case on behalf of respondent No.1 – original writ petitioner – land owner that his request for withdrawal of the consent was accepted by the Special Land Acquisition Officer and thereafter, no compensation was received and the // 6 // possession of the land in question was also not taken over and therefore, many years later the authority cannot implement the award by insisting on payment of compensation. 6
By the impugned judgment and order, the High Court has set aside the order dated 05.04.2010 by observing that such an order could not have been passed after a period of 15 years having once accepted the request on behalf of the land owner to cancel the acquisition. 7 That, thereafter the Assistant Commissioner and others filed the review petition before the High Court against the observations made by the Division Bench that possession has not been taken over. 2
It is submitted that however as Award under Section 11 of the Act, 1894 continued and amount of // 10 // compensation was to be paid under the consent award / award, the Assistant Commissioner was justified in passing the order dated 21.01.2009, which was communicated to the original writ petitioner by the Special Land Acquisition Officer vide communication dated 05.04.2010. It is submitted that as such it was the specific case on behalf of the appellants before the High Court that it was the original land owner who did not accept the compensation offered and despite consent award, he continued to cultivate the land forcibly.
It is submitted that therefore the High Court has materially erred in setting aside the award dated 11.06.1993 under Section 11 of the Act, 1894 and also declaring that the acquisition with respect to the land in question is deemed to have lapsed under Section 24(2) of the Act, 2013.
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Also Read: https://newslaw.in/case-type/civil/acquisition-of-land-and-deemed-lapse-under-the-act-2013/
It is further submitted that as observed and held by this Court in the case of Indore Development // 13 // Authority (Supra), only in a case where there is a lapse on the part of the Acquiring Body in not tendering / paying the compensation, and not taking over the possession, there shall be deemed lapse under Section 24(2) of the Act, 2013. //
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It is prayed by Shri Diwan, learned senior counsel appearing on behalf of the original land owner that before the High Court there was a challenge to the subsequent communication dated 21.01.2009 by the Assistant Commissioner communicated vide letter dated 05.04.2010 by the learned Special Land Acquisition Officer suo moto cancelling the earlier order dated 07.03.1995. 2 It is further submitted by Shri Diwan, learned senior counsel appearing on behalf of the original land owner that in the present case the original land owner withdrew his consent and therefore, refused to accept // 15 // the compensation awarded under the consent award and requested to withdraw the acquisition, which came to be accepted by the Assistant Commissioner vide order dated 07.03.1995 and the award was cancelled.
Also Read: https://newslaw.in/case-type/civil/taxation-of-engineering-design-drawings-goods-or-services/
3 It is further submitted by Shri Diwan, learned senior counsel that even otherwise when the original land owner continued to remain in physical possession and cultivating the land in question even for a period of 15 years after the consent award passed in the year 1993 and the compensation was not paid for number of years, in view of Section 24(2) of the Act, 2013, there shall be deemed lapse of acquisition proceedings. 1 At the outset it is required to be noted that the original award dated 11.06.1993 passed under Section 11 of the Act, 1894 was a consent award with respect to the land owned by the present respondent – original land owner as well as other lands acquired for re-settlement of Narmada Project oustees. I state that however the Petitioner refused to handover the land and to take compensation along with other similarly situated farmers whose land were also // 18 // acquired as per the Award dated 11.06.1993. The Petitioner is, therefore, require to handover the possession of land to the Respondent No.3 so that the same can be allotted for rehabilitation of the affected persons of Narmada Project.” 2 Thus, from the aforesaid it can be seen that it was the specific case on behalf of the appellants and the Assistant Commissioner that the land owner refused to hand over the land and refused to accept the // 19 // compensation alongwith other similarly situated farmers whose lands were also acquired as per the consent award dated 11.06.1993. But at the same time, the order of acquisition was not cancelled and that the land owner successfully avoided to hand over the possession of the land acquired under the provisions of the Act, 1894 though the land vested in the Sardar Sarovar Rehabilitation Agency.
The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).
The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The possession was taken by drawing the panchnama at the time of passing of the consent award dated 11.06.1993. In that view of the matter, once the compensation was offered, which as such was offered pursuant to the consent award under Section 11 of the Act, 1894, but the land owner refused to accept the same, how there can be any deemed lapse of acquisition under Section 24(2) of the Act, 2013?
In fact, the amount of compensation under the consent award under Section 11 of the Act, 1894 was offered and the land owner was called upon to accept the compensation however, the land owner refused to accept the same. Now, so far as the impugned judgment and order passed by the High Court in setting aside the award dated 11.06.1993 on the ground that the award has not been implemented for number of years and the amount of compensation has not been paid for number of years and the land is not utilized / used for number of years is concerned, at the outset it is required to be noted that it was the original owner who refused to accept the compensation offered in the year 1993. Once the land owner refuses to accept the amount of compensation offered by the Acquiring Body, thereafter it will not be open for the original land owner to pray for lapse of acquisition on the ground that the compensation has not been paid.
Even otherwise as observed and held by this Court in the case of Indore Development Authority (Supra), for the deemed lapse under Section 24(2) of the Act, 2013, twin conditions of not taking the possession and not paying the compensation, both are required to be satisfied. What was challenged before the High Court was award under Section 11 of the Act, 1894 and the subsequent communication dated 05.04.2010 issued by the Special Land Acquisition Officer calling upon the land owner to remain present in the office of Talati cum Mantri to accept the compensation and to release the land. Civil Application (For Review) No.3036 of 2015 in Special Civil Application No.9740/2012 are hereby quashed and set aside.
Case Title: THE STATE OF GUJARAT STATE OF GUJARAT Vs. JAYANTIBHAI ISHWARBHAI PATEL (2023 INSC 253)
Case Number: C.A. No.-001753-001754 / 2023
