9911796707
TMI Blog2021 (11) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ybridizes application of the 1894 Act and the 2013 Act. While preserving validity of the acquisition proceedings by issue of declarations under the 1894 Act, it states that all the provisions for determination of compensation under the 2013 Act shall apply. The Section consciously saves the legal effect of the notifications issued Under Section 4 and/or Section 6 of the 1894 Act and obviates the necessity to issue a fresh notification under the 2013 Act. This perseveration of the determination date for the computation of compensation for the awards made Under Section 24(1)(a) of the 2013 Act is a thought through legislative invocation that curtails time delays and cost escalation of infrastructure projects, as well as checks the post-acquisition notification malpractices, and at the same time ensures that the landowners are entitled to the benefit of the enhanced compensation as per the 2013 Act. Section 11A of the 1894 Act and Section 25 of the 2013 Act prescribe two different periods of limitation with adverse consequences, as on failure to make the award the acquisition proceedings lapse. The choice is between Section 11A of the 1894 Act and Section 25 of the 2013 Act. Law of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act ought to apply. The High Court had to consider the case made out by the landowners regarding subject award being not made within the specified period Under Section 11A of the 1894 Act, to save acquisition proceedings. It, therefore, became necessary to examine the plea of the landowners that the concerned officials backdated the award as 30th October 2014. The prima facie opinion noted by the High Court on the factum of backdating of the subject award would not make any difference to the outcome of the relief pursued by the landowners by way of writ petition for a declaration that the subject acquisition proceedings had lapsed. Such declaration, cannot be issued in the fact situation of the present case. The impugned judgment setting aside the award and holding that the acquisition proceedings had lapsed is, accordingly, set aside. It is held that the acquisition proceedings had not lapsed and the award is legal and valid - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... il; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle; Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so. of the 1894 Act for the acquisition of 203.86 hectares of land in village Adyal, District Bhandara, Maharashtra for the Gosikhurd Project. This was followed by publication of declarations Under Section 6 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be; and, after making such declaration, the appropriate Government may acquire the land in manner hereinafter appearing. of the 1894 Act, the last of which is dated 8th August 2012. Vide Gazette Notification No. S.O. 3729(E) dated 19th December 2013, the 2013 Act came into force on 1st January 2014, and in terms of Section 114 of the 2013 Act, the 1894 Act was repealed. On 30th October 2014, the Special Land Acquisition Officer purportedly made an award in terms of Clause (a) to Section 24(1) of the 2013 Act. 4. On 18th December 2015 and 25th January 2016, two writ petitions were filed by some of the landowners for quashing and setting aside of the award dated 30th October 2014, which have been allowed by the judgment under challenge passed by the Nagpur Bench of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Acquisition Act, 1894 (1 of 1894), - (a) where no award Under Section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said Section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in Sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said Section 11 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the repealing Act or Regulation had not been passed. Section 6 of the General Clauses Act interdicts the common law principle that an enactment after repeal is ineffective as if it had never existed, except as to matters past and closed. Section 6 is a general transitory provision that resurrects operation of the repealed law in terms of comprehensive and broadly worded Clauses (a) to (e). Clauses (b), (c) and (e) of Section 6, in particular, state that the repeal does not affect anything duly done or suffered under the repealed enactment; any right, privilege, obligation or liability acquired or accrued under any repealed enactment; or any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, etc. Legal proceedings, investigation or remedy may be instituted, continued or enforced, and any penalty, punishment or forfeiture may be enforced as if the repealed Act or Regulation were still in existence notwithstanding its repeal. However, the savings of Section 6 do not apply to some extent or in entirety when the legislative intent is different. The contrary intent can be expressed or gathered by necessary implication. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlal and Ors. (lapse - 5 Judges). 11. In the present case, Clause (a) to Section 24(1) of the 2013 Act would apply as the land acquisition proceedings initiated under the 1894 Act had not culminated into an award till the repeal of the 1894 Act. Section 24(1)(a) partly nullifies the legal effect of savings Under Section 6 of the General Clauses Act as it hybridizes application of the 1894 Act and the 2013 Act. While preserving validity of the acquisition proceedings by issue of declarations under the 1894 Act, it states that all the provisions for determination of compensation under the 2013 Act shall apply. The Section consciously saves the legal effect of the notifications issued Under Section 4 and/or Section 6 of the 1894 Act and obviates the necessity to issue a fresh notification under the 2013 Act. This 'perseveration of the determination date' for the computation of compensation for the awards made Under Section 24(1)(a) of the 2013 Act is a thought through legislative invocation that curtails time delays and cost escalation of infrastructure projects, as well as checks the post-acquisition notification malpractices, and at the same time ensures that the landowners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true presumption. However, presumption in favour of retrospectivity may be necessary when distinct implications typically arise in the context of the statute which repeals a previous statute, and would leave a 'lacuna' if the new statute were not construed as having retrospective effect. A statute which is prospective in its direct operation cannot be called as retrospective because a part of the requisites for its action is drawn from time antecedent to its passing. Another cardinal principle of interpretation is that a construction which results in unreasonably harsh and absurd results must be avoided. These dictums being relevant would help us resolve and answer the question in issue. 14. In paragraph 195 in Indore Development Authority (supra), the Constitution Bench held that the 2013 Act operates prospectively. Further, Section 114 of the 2013 Act effects a repeal but with certain savings, in accordance with Section 24. Thus, the acquisition proceedings are preserved under the 1894 Act till the stage of making of the award. Where an award is not made, the provisions relating to determination of compensation under the 2013 Act would apply; where the award is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackground, find reference in Gujarat Urja Vikas Nigam Limited v. Amit Gupta and Ors. In Renusagar Power Co. Ltd. v. General Electric Co. and Anr. (1984) 4 SCC 679, this Court held that the term 'in relation to', when used in the context of arbitration clause, is of widest amplitude and content. In Mansukhlal Dhanraj Jain and Ors. v. Eknath Vithal Ogale, (1995) 2 SCC 665 the expression 'relating to' in the context of Small Causes Court Act, 1887 has been held to be comprehensive in nature that would take in its sweep all types of suits and proceedings which are concerned with recovery of possession. Broad and wider interpretation was again preferred in M/s. Doypack Systems Pvt. Ltd. v. Union of India and Ors. (1988) 2 SCC 299 observing that the expression "in relation to" is a very broad expression which presupposes another subject matter. In M/s. Doypack Systems Pvt. Ltd. (supra), in the context of Section 3 of Swadeshi Cotton Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1986, the expression "relating to" was held to mean 'bring into association or connection with'. M/S. Doypack Systems Pvt. Ltd. v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text of a different set of facts. Therefore, unless the language of the provision dealing with period of limitation clearly manifests, in express terms or by necessary implication, a contrary intention divesting vested rights, such provision is to be construed as prospective. In the context of Clause (a) to Section 24(1) of the 2013 Act, it is to be stated that the said Clause would apply only if the period for making of an award had not ended and time was available as on 1st January 2014. Where and if the period for making of the award had already lapsed before 1st January 2014, Clause (a) to Section 24(1) would not apply so as to deprive and deny the vested rights which have already accrued in favour of the landowners. The present case is not of divesting of vested rights of the landowners on enactment of the 2013 Act. 18. Section 25 is a Rule of procedure immediately following Section 24 and a part of fasciculus of "all the provisions", from Sections 25 to 30, "relating to determination of compensation". Hence, the expression "all the provisions relating to the determination of compensation" under the 2013 Act will encompass Section 25 of the 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made Under Section 24(1)(a) of the 2013 Act. This would mitigate against the underlying legislative intent behind prescription of time for making of an award in respect of saved acquisition proceedings initiated under the repealed 1894 Act, which is two-fold: (i) to give sufficient time to the authorities to determine compensation payable under the 2013 Act; and (ii) to ensure early and expedited payment to the landowners by reducing the period from two years Under Section 11A of the 1894 Act to twelve months Under Section 25 of the 2013 Act. In case of declarations issued in January 2012, on application of Section 11A of the 1894 Act, the time to determine compensation under the 2013 Act would vary from a day to a month, and while in cases where the declarations were issued within twelve months of the repeal of the 1894 Act, the landowners would be at a disadvantage as an award beyond the twelve-month period specified in Section 25 of the 2013 Act would be valid. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard Under Section 11 of the said Land Acquisition Act, 1894 (I of 1894) has not been made before the 31st December 2013, then the proceeding shall be continued as per the formula provided in Sections 26 to 30 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013)." for giving a restrictive meaning and excluding Section 25 of 2013 Act is misplaced. This Rule states that the formula provided in Sections 26 to 30 of the 2013 Act would apply where a notification Under Section 4(i) of the 1894 Act was issued before 31st December 2013, and an award has not been made before the 31st December 2013. The Rule refers to the formula for computation of compensation to be applied Under Section 24(1)(a) of the 2013 Act, but it does not follow that Section 25 which prescribes the limitation for making of an award will not apply. For the reasons stated above, we hold that Section 25 of the 2013 Act applies to awards made Under Section 24(1)(a) of the 2013 Act and the period of limitation of twelve months would commence from 1st January 2014. 22. Alternative argument by the State that neither the period for making of an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al areas shall be a factor of 1. This notification was challenged before the Aurangabad Bench of the Bombay High Court in Writ Petition No. 4274 of 2014, whereupon the High Court stayed the operation, execution and implementation of the notification vide the interim order dated 26th May 2014. Consequently, the Government of Maharashtra had addressed its letter dated 7th July 2014 to the Divisional Commissioners directing them not to declare awards till further orders of the High Court in Writ Petition No. 4274 of 2014. On 13th August 2014, the State of Maharashtra published another notification whereby the multiplier factor made applicable to some of the rural areas was 1.10. In response, an application was made for the amendment of Writ Petition No. 4274 of 2014 to challenge and seek stay of the notification dated 13th August 2014. The State Government, in turn, had moved an application for modification/vacation of the stay order. By order dated 23rd September 2014, the High Court, though denying a stay on the notification dated 13th August 2014, held that the awards passed after the issuance of the notification dated 13th August 2014 would be subject to the decision in the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of such period or periods for the purpose of reckoning the period of 5 years. Also, merely because timelines are indicated, with the consequence of lapsing, Under Sections 19 and 69 of the 2013 Act, per se does not mean that omission to factor such time (of subsistence of interim orders) has any special legislative intent. This Court notices, in this context, that even under the new Act (nor was it so under the 1894 Act) no provision has been enacted, for lapse of the entire acquisition, for non-payment of compensation within a specified time; nor has any such provision been made regarding possession. Furthermore, non-compliance with payment and deposit provisions (Under Section 77) only results in higher interest pay-outs Under Section 80. The omission to provide for exclusion of time during which interim orders subsisted, while determining whether or not acquisitions lapsed, in the present case, is a clear result of inadvertence or accident, having regard to the subject-matter, refusal to apply the principle underlying the maxim actus curiae neminem gravabit would result in injustice. 27. In the context of absence of any provision excluding the period of operation of stay o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, owing to the abovementioned intervening period of 79 days, it could be made up to 20th March 2015. Be it noted that the specific case of the landowners before the High Court was about lapsing of acquisition proceedings owing to the mandate of Section 11A of the 1894 Act. It was not even remotely suggested that the acquisition proceedings had lapsed even in terms of the mandate of the new legislation being 2013 Act, in particular Section 25 thereof. In other words, the High Court was essentially called upon to answer the assail in reference to the lapsing provision in the 1894 Act. However, as aforesaid, that will have no bearing on the fact situation of the present case, to which the regime predicated in Section 25 of the 2013 Act ought to apply. 31. In light of the asseveration of the landowners, the High Court had to consider the case made out by the landowners regarding subject award being not made within the specified period Under Section 11A of the 1894 Act, to save acquisition proceedings. It, therefore, became necessary to examine the plea of the landowners that the concerned officials backdated the award as 30th October 2014. While considering that issue, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and the award ought to have been passed on or before 08.08.2014. We do not find any merit in the submission made on behalf of the Respondent Nos. 1 to 3 that since there was a stay to the proceedings by the Aurangabad Bench, the State Government decided not to proceed with the land acquisition proceedings. We are afraid that Writ Petition No. 4274 of 2014 that was pending before the Aurangabad Bench had no relation with the land acquisition proceedings in this case. The Aurangabad Bench had merely stayed the effect and operation of the notification dated 19.03.2014 which pertains to the multiplier. The Aurangabad Bench had not stayed the proceedings in any land acquisition matters, much less the land acquisition matter with which we are concerned. If that is so, the award could not have been passed on 30.10.2014, as the same would have lapsed in view of the provisions of Section 11-A of the Act. It is surprising that though the Respondent Nos. 1 to 3 have relied on the communication of the State Government dated 18.10.2014 that proceedings in all land acquisition matters should not be continued in view of the stay granted by the Aurangabad Bench in Writ Petition No. 4274 of 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the fact note in the award dated 30th October 2014, referring to communication dated 11th November 2014 from the Town Planning Department to the Special Land Acquisition Officer, indicative of the fact that the award was not published until that date. The landowners are also relying on another communication dated 1st December 2014 issued by the Special Land Acquisition Officer to the acquiring body stating that the draft award had been submitted to the Commissioner and was likely to be approved, calling upon the acquiring body to deposit the compensation amount of Rs. 43.94 crores with their office. Reference is also made to the fact that roznama was not maintained by the Special Land Acquisition Officer after 6th May 2014. Further, the landowners had received certified true copy of the award along with notice only on 6th May 2015. 34. Indeed, the High Court leaned in favour of the argument that the stated award dated 30th October 2014 is backdated. That, however, was in the context of applicability of Section 11A of the 1894 Act and by not excluding the period during which the High Court stay was operating. Indisputably, the High Court did not examine the matter in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factum of backdating of the subject award would not make any difference to the outcome of the relief pursued by the landowners by way of writ petition for a declaration that the subject acquisition proceedings had lapsed. Such declaration, in our opinion, cannot be issued in the fact situation of the present case. 38. However, as the High Court has noticed certain discrepancies, as pointed out to it by the landowners in the record and proceedings before the Special Land Acquisition culminating in making of the stated award, it would be appropriate to leave that aspect open for being enquired into by the appropriate authority by conducting enquiry to identify the relevant facts and circumstances and if it is found to be a mischief, responsible person therefor may be proceeded against as per law. Suffice it to state that neither the observations made by the High Court nor this decision may affect the final opinion or conclusion that may have to be reached in such an enquiry. In other words, the enquiry be proceeded independently on its own merits by giving opportunity to all concerned. 39. While dealing with this submission made by the landowners, we must consider the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished Under Section 24(1)(a) of the 2013 Act. (ii) The limitation period for passing/making of an award Under Section 24(1)(a) in terms of Section 25 of the 2013 Act would commence from 1st January 2014, that is, the date when the 2013 Act came into force. (iii) Period during which the Court order would inhibit action on the part of the authorities to proceed with the making of the award would be excluded while computing the period Under Section 25 of the 2013 Act. (iv) Accordingly, period of 79 days from 26th May 2014 when the High Court had stayed operation of the notification dated 19th March 2014, till the new notification dated 13th August 2014 was issued has to be excluded. (v) The award purportedly dated 30th October 2014, was in any case duly made on or before the extended date of 20th March 2015. Hence, the concerned award is valid. (vi) The State of Maharashtra may conduct an inquiry in reference to the imputation regarding manipulation and backdating of the subject award and take such remedial and corrective action as may be necessary and to ensure such situations do not arise in future. 41. The impugned judgment setting aside the award and holding that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
