Land Acquisition; Bhupatsinh Vitthalbhai Vasava Vs. State [Gujarat High Court, 05-08-2016]

Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 – Ss. 24(2) & 31 – Payment of Compensation or deposit of same in Court – “paid” – meaning of – it is not possible of precise definition and the interpretation varies from statute to statute and, sometimes, depending on the situation – the person interested in the present case, did not refuse to receive the compensation – he, in fact, volunteered, remained present before the Collector and also accepted the payment voucher – his action, thereafter, of not physically collecting the compensation would not change the situation – In the result, the petition is dismissed.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 03/03/2016

SPECIAL CIVIL APPLICATION NO. 9045 of 2015 FOR APPROVAL AND SIGNATURE:

BHUPATSINH VITTHALBHAI VASAVA….Petitioner(s) Versus STATE OF GUJARAT & 2….Respondent(s)

Appearance: MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 MR. NISHIT P GANDHI, ADVOCATE for the Petitioner(s) No. 1 MR RAKESH PATEL, AGP for the Respondent(s) No. 1 – 3

JUDGMENT

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. The petitioner has prayed for a declaration that the acquisition of his land has lapsed by virtue of

Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013

(‘the Act of 2013’ for short). In the alternative, the petitioner has prayed for a direction to the authorities to withdraw from the acquisition of the land in question.

2. Brief facts are as under:

The petitioner is a successor in title along with other co-owners of land bearing Revenue Survey Nos. 156/1 and 156/2 of Village Vadia, Tal. Nanod, Dist. Bharuch. Such land was required by the State for the public purpose of constructing a guest house. For acquiring such land, notification under Section 4(1) of the Land Acquisition Act, 1894 (‘the Act of 1894’ for short) was issued on 23.03.1983. After following the required procedure, Special Land Acquisition Officer passed his award dated 27.07.1984. The case of the petitioner is that, having acquired such land, the authorities never constructed the guest house at the said site and thus, many years after the acquisition, the land, even today, remains open unused land. The petitioner contends that by virtue of Section 24(2) of the Act of 2013, such acquisition would lapse. According to the petitioner, compensation for the land in question was never paid nor received by the owners. Though fleetingly referred to in the writ petition that the possession was also not taken over, at the time of the arguments, learned counsel for the petitioner confined his submissions to the question of payment of compensation.

3. In the context of the alternative prayer made by the petitioner it was submitted that, the land having remained unused for decades together, the Government should be directed to return the same to the original land owners. However, realizing the limitation of such a contention, in view of the judgement of the Supreme Court in case of

V. Chandrasekaran and anr vs. Administrative Officer and ors reported in (2012) 12 SCC 133

and other similar judicial pronouncements, counsel for the petitioner made detailed submissions only with respect to the non-payment of compensation.

4. Learned advocate Mr. Majmudar for the petitioner drew our attention to the documents on record and pointed out that even as per the respondents, grandfather of the petitioner had merely received a voucher for payment of Rs. 36,997.80 towards compensation for the land. However, such compensation was never actually received. Our attention was drawn to the letter dated 29.05.2001 as at Annexure E to the petition, in which, the Special Land Acquisition Officer conveyed to one of the co- owners of the land that, so far, the amount of compensation is not received and is lying in the Government Treasury. He may, therefore, remain present so that, amount can be paid. Counsel for the petitioner also relied on a document received by him in response to the queries raised under Right to Information Act to contend that, as per the records of 30.03.1888, the amount was still lying with the Government Treasury.

5. On the basis of such documents, counsel submitted that mere issuance of a voucher in favour of the persons interested would not be sufficient. What is required under Section 24(2) of the Act is, the payment of compensation or, if such payment is not received by the owner for any reason whatsoever, the same would have to be deposited before the Reference Court. In the present case, the money is still lying with the Government Treasury clearly pointing out that the compensation was never paid. In this respect, counsel placed heavy reliance on the decision of

Pune Minicipal Corporation and anr vs. Harakchand Misirimal Solanki and ors reported in (2014) 3 SCC 1863.

6. On the other hand, learned AGP opposed the petition contending that the acquisition proceedings were completed way back in the year 1984. The compensation was tendered to the land owner. Thereafter, there was no further requirement to deposit the same with the Reference Court. At any rate, such issues cannot be reopened after such a long period of time.

7. Section 24 of the Act of 2013 pertains to land acquisition process under the Act No.1 of 1894 shall be deemed to have lapsed in certain cases. Sub-section (1) of Section 24 provides that notwithstanding anything contained in the Act, in any case of land acquisition proceedings initiated under the Act of 1894, where no award under Section 11 has been made, then, all provisions of the Act of 2013 relating to the determination of compensation shall apply; or where an award under Section 11 has been made, then such proceedings shall continue under the provisions of the Act of 1894, as if the same has not been repealed. Sub-section (2) of Section 24which is important reads as under:

(2) Notwithstanding anything contained in sub section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 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 notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”

8. It can thus be seen that the provisions of sub-section (2) of Section 24 would apply in a case, where acquisition of land has been initiated under the Act of 1894 and award under Section 11 has been made five years or more prior to the commencement of the Act of 2013. Besides this condition, if it is found that the physical possession of the land has not been taken or the compensation has not been paid, in such circumstances, the proceedings shall be deemed to have lapsed. It would, however, be open for the appropriate Government, if it so choses, to initiate proceedings for acquiring such land afresh in accordance with the provisions of the Act of 2013.

9. It is, in this background, that we need to inquire in the present case whether the compensation was paid or not? We may notice that Section 31 of the Act of 1894 pertained to payment of compensation or deposit of the same in Court. Relevant portion of Section 31 reads as under: