TMI Blog2015 (10) TMI 2826X X X X Extracts X X X X X X X X Extracts X X X X ..... e Land Acquisition Officer to the beneficiaries, to observe the requirement of Section 24(2) of the Act of 2013 and the amended ordinance. Thus, the proceedings of the land acquisition would lapse so far as it relates to the petitioners are concerned. On 7.10.2005 the possession of the land in question in the present petition has been delivered to the respondent No.1. No document has been brought on record indicating the fact that after acquisition and passing of the award, any notice was issued and served on the land owners. Nothing has been brought on record indicating the fact that in presence of the land owners and before the independent witnesses, possession has been taken from them, and thereafter, possession was delivered to the Archaeological Survey of India. In absence of the document of taking over of the possession from the land holders plea of following the procedure is of no consequence and by the said document, it cannot be presumed that the actual physical possession had been taken over from the land owners following the procedure prescribed, and then delivered to the respondent No.1 - looking to the documents brought by the respondents, it is apparent that actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act) was issued as per Annexure P/2. Thereafter, the final notification under Section 6 of the Act was issued in the Gazette Published on 26.9.2003 wherein the land belonging to the petitioners pertaining to Khasra No.497/1 ad-measuring area 5.696 hectare and the residential house situated at Village Lalguvan, Tahsil Rajnagar, District Chhatarpur has been acquisitioned alongwith the land of other holders. A notice under Section 9 of the old Land Acquisition Act was issued for ascertainment of the boundaries, and thereafter the compensation was determined by the Land Acquisition Officer (in short ''LAO'') vide award Annexure P/6 passed on 30.11.2004. The amount of the said award was not paid yet to the petitioners, however, as contemplated under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter shall be referred to as 'the Act of 2013'). The proceedings shall be deemed to have lapsed. It is also the contention of the counsel that the possession on the land in question has not been taken by following the procedure established by law and the petitioners are in Actual P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in whose name the acquired land was recorded, for receiving the compensation from the office of Sub Divisional Officer. It is said, the petitioners with the help of the local political persons made a futile attempt to take the land back by using the political pressure on the revenue authorities and in this regard various letters were written. It is further said that the petitioners slept in a deep slumber for a long time and thereafter filed a writ petition making the false averments stating that the application filed under Section 18 of the old Land Acquisition Act seeking reference has not been decided. However, this Court had passed an order in Writ Petition No.6909/2008 as per Annexure R/1/7 to take appropriate steps. As per the directions issued by this Court, the Collector by passing an order on 19.6.2009 rejected the claim of the petitioners. Thereafter, the petitioners have filed a second Writ Petition No.2721/2014, which was also dismissed by this Court granting liberty to file a fresh writ petition in the light of provisions as contained under the Act of 2013. Challenging the order of Single Bench, he has also filed a Writ Appeal No.111/2015, which was also dismissed, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their dwelling houses. The respondent No.1 has filed their synopsis/written arguments by I.A. No. 11734/2015, as well as the additional arguments reiterating the plea taken in their return. However, in view of the aforesaid, looking to the fact that the possession has already taken from the petitioners by the respondent Nos.1 to 3, therefore, the relief as prayed in this writ petition cannot be directed. 7. After having heard learned counsel for the parties upto a length, it is seen that the Act of 2013 is made applicable with effect from 1.1.2014. However, looking to the facts of this case and also the provisions of the Act, the question cropped up for determination is as to (1) whether in the facts of the present case by following due process of law actual physical possession of the land in question has been taken by the respondent Nos.1 to 3 or the compensation has been paid in view of the provisions as contained in Section 24(2) of the Act of 2013? and (2) whether in the facts of the present case and by virtue of the provisions of Section 24 (2) of the Act of 2013, the land acquisition proceedings would be deemed to be lapsed? 8. In view of the arguments as advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a tribunal for taking possession or such period where possession has been taken but the compensation lying deposited in a court or in any designated account maintained for this purpose shall be excluded.'' 10. It is relevant to note that the said ordinance was passed by the Lok Sabha on 10.3.2015 and thereafter it was published in the gazette subject to approval by the Rajya Sabha and as per the official website of the Parliament, the pre-legislative research indicates that the Joint Parliamentary Committee granted time upto the last day of first week of winter session of 2015 for approval by the Rajya Sabha. It is not in dispute that the winter session is expected from 20th November 2016. In reference to Article 123(2)(a) and (3), it is argued that the said ordinance has cease to operate because it has not been approved by both the Houses within a period of six weeks from reassembly of the Parliament met first time in Monsoon Session from July 21st to August 13th 2015. As the promulgation of second proviso to sub-section (2) of Section 24 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the notification in the old Land Acquisition Act shall be entitled to compensation in accordance with the provisions of this Act. The second proviso as promulgated by the ordinance clarifies regarding computation of the period of five years and in what manner the effect of non-implementation of the award be recognized. However, as per the language engrafted therein, it appears that the period referred in sub-section (2) of Section 24 of the Act of 2013 means any period or periods during which the persons for acquisition of the land were held up on account of any stay or injunction issued by any Court or the period specified in the award of a Tribunal for taking possession or such period where the possession has taken but the compensation lying deposited in a Court or in a designated account maintained for this purpose shall be excluded. However, the said proviso clarifies three situations and excludes the period period during stay or injunction of the Court, or any period specified in the award for taking possession, or where possession taken and compensation lying deposited in the Court or in any designated account for calculating the period of five years. In the said eventu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 2013. The relevant paragraphs of the said judgment are reproduced as thus:- ''10. Insofar as sub-section (1) of Section 24 is concerned, it begins with non obstante clause. By this, Parliament has given overriding effect to this provision over all other provisions of the 2013 Act. It is provided in clause (a) that where the land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 is made, then the provisions of the 2013 Act shall apply relating to the determination of compensation. Clause (b) of Section 24 (1) makes provision that where land acquisition proceedings have been initiated under the 1894 Act and award has been made under Section 11, then such proceedings shall continue under the provisions of the 1894 Act as if that Act has not been repealed. 11. Section 24(2) also beings with non obstante clause. This provision has overriding effect over Section 24(1). Section 24(2) enacts that in relation to the land acquisition proceedings initiated under the 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies is satisfied viz. (i) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 31 (2) are: (i) the persons interested entitled to compensation do not consent to receive it, (ii) there is no person competent to alienate the land, and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made. 15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the Court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court which reference can be made under section 18. 16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Act. The Collector, with regard to the payment of compensation, can only act in the manner os provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (₹ 27 crores) was deposited in the Government treasury. Can it be said that deposit of the amount of compensation in the Government treasury is equivalent to the amount of compensation paid to the landowners/persons interested We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes, relying upon the earlier decision in Prem Nath Kapur, has held that the deposit of the amount of the compensation in the sates revenue account is of no avail and the liability of the State to pay interest subsists till the amount has not been deposited in court. 20. From the above, it is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement something collateral is received in satisfaction although demand is extinguished, the debt, technical speaking is not ''paid''. As per Judicial Dictionary Second Edition by Orient Publishing Company, the Supreme Court observed in J. Dalmia v Commissioner of Income Tax, Delhi 53 ITR 83 AIR 1964 SC 1866; that the expression ''paid'' in Section 16(2) of Income Tax Act, 1922 does not contemplate actual receipt of the dividend by the members in general,dividend may be said to be paid within the meaning of Section 16(2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. [Benaras State Bank Ltd v Commissioner of Income Tax UP, AIR 1970 SC 281]. Meaning thereby in discharge of an obligation, the payment is to be made if it is satisfied or settled then the meaning and purpose of the word ''paid'' would complete. However, for the purpose of Section 24(2) of the Act of 2013, if the amount of compensation is deposited in the Court,it would be treated as paid. 17. As per the first proviso to sub-section (2) of Section 24 of the Act of 2013, any pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means an offer or, as it is sometimes called, a proposal means the signification by one person to another of his willingness to enter into a contract with him on certain terms. It may be express or may be impied from the conduct of the party. A mere statement of a person's intention or declaration of his willingness to enter into negotiation is not an offer, and cannot be accepted so as to form a binding contract. HALSBURY, 3rd Edn, Vol.8 P.69. ''An offer is, in effect, a promise by the offeror to do or abstain from doing something, provided that the offeree will accept the offer (and pay or promise to pay the 'price' of the offer. The price, of course, need not be a monetary one. In fact, in bilateral contracts, the mere promise of payment of the price suffices to conclude the contract, while in a unilateral contract, it is the actual payment of the price which is required.'' P.S. Atyah, An Introduction to the Law of Contract 44 (3d ed.1981). 20. The word ''Tender'' As per the Major Law Lexicon 4 th Edition 2010 of P. Ramanatha Aiyar's, the word ''tender'' is defined to be the offer of money in satisfaction of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set aside. 23. In the case of Bimla Devi Versus State of Haryana reported in 2015 (1) MPHT 288, the Apex Court has relied upon the judgment of Pune Municipal Corporation (supra) and explaining the meaning of the word ''paid'', the Apex Court in Paragraph 17 has observed as under:- ''17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word ''paid'' to ''offered'' or ''tendered''. But at the same time, we do not think that by use of the word ''paid'', Parliament intended receipt of compensation by the land owners/persons interested. In our view, it is not appropriate to give a literal construction to the expression ''paid'' used in this Subsection (Sub-section (2) of Section 24). If a literal construction was to be given, then it would amount to ignoring procedure mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hysical possession following the mandatory procedure as required under the old Land Acquisition Act. 26. In the case of Ram Kishan and others Versus State of Haryana and others reported in (2015) 4 SCC 347, the Apex Court has reiterated the same principle holding that that the proceedings in violation of the provision contemplated under Section 24(2) of the Act of 2013 shall be deemed to be lapsed. In the case of Velaxan Kumar Versus Union of India and others reported in (2015) 4 SCC 325, the Apex Court has observed that what would be the manner to take over the possession of the land acquired. After analyzing the facts, the Apex Court observed that if the contention of taking over of the possession raised by the respondents is accepted even then the procedure enshrined to take over the possession has not been followed by the Acquisition Authority by way of preparing a proper Panchnama in presence of the independent witnesses and the land holders, however, the said procedure is contrary to the principle of law laid down in the case of Sita Ram Bhandar Society Versus Govt (NCT of Delhi) reported in (2009) 10 SCC 501. In the said situation, the Apex Court held that the land acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby this Court relying upon the judgments in the cases of Pune Municipal Corporation, Bimla Devi, Shiv Raj ,Sita Ram Bhandar Society (supra) and in the case of Sharma Agro Industries Versus State of Haryana reported in 2015 MPLJ 523 (SC) has held that out of two contingencies i.e. of taking over of the possession or the payment of compensation, if anyone of them is not complied, the provision of Section 24(2) of the Act of 2013 would be applicable and the proceedings would be deemed to be lapse. 31. In addition to the aforesaid, the Apex Court in the case of Raghbir Singh Sehrawat Versus State of Haryana and others reported in (2012) 1 SCC 792 interpreted the word vesting of the land into the Government on taking of the possession. However, while dealing the issue, it is held that taking of possession means to take the actual physical possession and not symbolic or possession on paper. 32. In view of the aforesaid, since the date of commencement of the Act of 2013 till recent pronouncements of the Apex Court on the issues, and also of this Court indicating the manner and purpose of Section 24(2) of the Act of 2013 to which it was brought, it is consistent approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Act of 2013 contemplates two contingencies, indicating (1) the physical possession of the land has not been taken over or (2) the compensation has not been paid then such acquisition proceedings shall be deemed to have lapsed. Looking to the document available on record, after passing the award on 30.11.2004, the notice was sent to the petitioners offering the said amount to receive the same but the amount so determined insofar as it relates to the petitioners are concerned has not been deposited either in their account, or in the Court to follow the procedure prescribed under Sections 31,32,33 of the old Land Acquisition Act. It has also not been brought to the notice of this Court that after acquisition of the proceedings, any designated account to pay the compensation to the beneficiaries has been opened and the amount has been deposited therein to attract the second proviso brought by ordinance. In that view of the matter, it is concluded that the award was passed more than five years prior to the date of commencement of the Act of 2013 and the said amount has not been paid or deposited by the Land Acquisition Officer to the beneficiaries, to observe the requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar (supra), the plea of taking over of the possession is of no help to the respondents. 36. It is also relevant to observe that, when first Writ Petition No.6909/2008 was filed on 16.6.2008 challenging the acquisition proceedings and in alternative making request to refer it to the Court, it is to be noted here that stay was not granted in the said case by this Court. After decision of the Collector, refusing to make reference, without deciding the issue of validity of acquisition, subsequent Writ Petition No.2721/2014 was filed on 12.2.2014 wherein also at admission stage stay was not granted, and it was decided vide order dated 5.2.2015 directing the petitioners to take recourse of law in the context of the Act of 2013. But while passing the final order on 5.2.2015, this Court directed to maintain status-quo as it exists today. Thereafter, the present writ petition has been filed wherein the stay is in operation. In view of the aforesaid, it is clear that after acquisition of the proceedings and filing the said two writ petitions, there was no stay. The stay was only granted on 5.2.2015 after commencement of the Act of 2013. However, the order of stay of possession as di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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