WRIT PETITION (C) NO.5067 OF 2015

Transcription

1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) WRIT PETITION (C) NO.5067 OF Bhadaram Mikir, Son of Manai Mikir. 2. Ranen Timung, Son of Lakhi Mikir, represented by his POA Holder Viz. Sri C.R. Bailung, 3. Ahailya Tumung, Daughter of Late Nagar Mikir. 4. Hareswar Kathar, Son of Late Deben Kathar. 5. Debeswar Doloi, Son of Late Phukan Garo. 6. Dipar Mikir, Son of Rupai Mikir. 7. Pradip Tumung, Son of Late Mohini Tumung. 8. Madhuram Terong, Son of Garia. 9. Saruram Terong, Son of Garia. 10. Dhaniram Terong, Son of Garia. 11. Ratan Terong, Son of Late Ramesh Terong. 12. Parameswar Terong, Son of Garia. 13. Rupan Mikir, Wife of On Mikir. 14. Manik Ch. Bangthai, Wife of Suchana. 15. Prasanta Kathar, Son of Late Mereng Mikir. 16. Nakul Terong, Son of Dipar, represented by his POA Holder viz. Sri C.R. Bailung. 17. Pabitra Rahang, Son of Pua. WP(C) No.5067/2015 Page 1 of 16

2 18. Uttam Doloi, Son of Late Chitra Garo. 19. Sri Dilip Garo, Son of Nandeswar. 20. Bhogi Kathar, Son of Bora MIkir, Represented by his POA Holder viz. Sri Dandidhar Sonowal. 21. Phuleswar Rahang, Son of Manjur. 22. Simanta Rahang, Son of Sabhyaswar Rahang. 23. Pradip Kr. Das, Son of Bina Ram Das. 24. Shymanta Kathar, Son of Sadhu, represented by his POA holder viz. Sri Dandhidhar Sonowal. 25. Rupahi Garo, Wife of Aaharu. 26. Dandi Garo, Son of Aaharu. 27. Pratap Kathar, Son of Bhoda Mikir. All Nos.1 to 26 above are resident of Village: Karchia NC under Mouza- Panbari and Sub-Division Guwahati, District: Kamrup (Metro), Assam...Petitioners -Versus-, 1. The State of Assam, Represented by the Principal Secretary to the Government of Assam, Department of Revenue, Dispur, Guwahati-6, District: Kamrup (M), Assam. 2. The Deputy Commissioner, Kamrup (M), Kacharighat, Guwahati-1, District: Kamrup (M), Assam. 3. The Circle Officer, Sonapur Revenue Circle, Sonapur, District: Kamrup (M) Assam. 4. The Union of India, Represented by the Secretary to the Government of India, Ministry of Home Affairs, South Block, New Delhi-1. 5.The Commandant, 33 rd BN, ITBP, MHA, Government of India, A-14, Sixth Floor, Flat No.601, Games Village, Guwahati-29, Kamrup (M), Assam...Respondents WP(C) No.5067/2015 Page 2 of 16

3 B E F O R E HON BLE MR. JUSTICE ARUP KUMAR GOSWAMI For the petitioners For respondent Nos.1 to 3 : Mr. S. Kataki, Advocate. : Mr. Y. Doloi, Additional Advocate General, Assam. Mr. T.C. Chutia, Government Advocate, Assam. For respondent Nos.4 and 5 : Mr. S.C. Keyal, Assistant Solicitor General of India. Mr. C.K.S. Barua, Central Government Advocate. Dates of hearing : , , and Date of Judgement & Order : JUDGMENT & ORDER (CAV) Heard Mr. S. Kataki, learned counsel for the petitioners. Also heard Mr. Y. Doloi, learned Additional Advocate General, Assam, assisted by Mr. T.C. Chutia, learned State Counsel, appearing for the respondent Nos.1 to 3 and Mr. S.C. Keyal, learned Assistant Solicitor General of India and Mr. C.K.S. Barua, learned Central Government Counsel, appearing for the respondent Nos.4 and 5. [2] By filing this application under Article 226 of the Constitution of India, the petitioners pray for setting aside and quashing the land acquisition proceeding in L.A. Case No.22/2013 initiated under the Land Acquisition Act, 1894 (for short, 1894 Act ) and the award dated , including the notices issued in connection with Boundary Case No.60/ , as being illegal, without jurisdiction, nullity and void ab initio and for a direction to the respondents to initiate land acquisition proceeding for the land involved in L.A. Case No.22/2013 under the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 2013 Act ). [3] The case of the petitioners, inter alia, is that they are residents of Village- Korchia NC under Mouza Panbari in the District of Kamrup (M) and that the Deputy Secretary to the Government of Assam, Revenue and Disaster Management (L.R.) Department issued a Notification No.RLA.103/2003/3 dated under Section 4 of the 1894 Act in connection with land acquisition proceeding in L.A. Case No.22/2013 indicating that land mentioned and described in the said Notification is likely to be needed for a public purpose, namely, for setting up of Battalion Headquarter of Indo-Tibetan Border Police (ITBP) in WP(C) No.5067/2015 Page 3 of 16

4 Sonapur and that if any objection to the acquisition is filed under Section 5A of the 1894 Act by any person interested on or before 30(thirty) days before the Collector, Kamrup (M), the same will be considered. [4] The pleaded case of the petitioners is that though on , the 2013 Act came into force, instead of proceeding as per provisions of 2013 Act, authorities issued notice dated under Section 5A of the 1894 Act and thereby continued with the aforesaid land acquisition proceeding. After affording a hearing, an order was passed by the Collector on Thereafter, a declaration was made under Section 6 of the 1894 Act. On , a notice under Section 12(2) of the 1894 Act was issued stating that an award was made by the Collector on under Section 11 of the 1894 Act indicating therein the amount of compensation payable. It is the case of the petitioners that the award dated was not furnished to the petitioners and they came to know regarding the award only from the aforesaid notices under Section 12(2) of the 1894 Act. Subsequently, notices were issued by the Circle Officer, Sonapur Revenue Circle in Boundary Case No.60/ to the petitioners informing them that the ITBP-33 Battalion, Sonapur had applied for demarcation of the land mentioned and described in the notices and, therefore, the boundary would be shown to the applicant ITBP-33 Battalion on at 11:00 AM and that it was also mentioned in the said notices that if they had any objection, they might raise such objection by remaining present at the appointed time and place along with supporting documents, failing which steps would be taken as per Rules. [5] In the affidavit filed by the respondent No.2, it is stated that the Government had approved declaration under Section 6(1) of the 1894 Act, subject to the provision of Section 24(1)(a) of the 2013 Act and communication was already made with the Inspector General, North East Frontier Headquarter, ITBP, who had made the request on for acquisition of the land for construction of Battalion Headquarter, ITBP at Sonapur. [6] The respondent Nos.4 and 5, in their affidavit, had stated that they had deposited a sum of Rs.1,74,82,135/-, being the approved land acquisition estimate. It is averred that for almost a year, there was no communication from the Deputy Commissioner, Kamrup (M). The acquired land was officially handed over by the Circle Officer, Sonapur to ITBP vide letter dated and the ITBP had stationed itself on the acquired land and a joint survey was proposed on [7] The respondent No.1 also, more or less, took the same stand as taken by the respondent No.2. In addition, it is stated that the Deputy Commissioner, Kamrup (M), by a WP(C) No.5067/2015 Page 4 of 16

5 letter dated , had forwarded the land acquisition estimate as per 2013 Act and had requested the ITBP authority to deposit the differential amount taking into account the amount already deposited by the ITBP. Revised land acquisition estimate amounting to Rs.4,32,81,444/- was forwarded vide communication dated addressed to the Deputy Commissioner, Kamrup (M), based on which Rs.2,57,99,309/- was deposited by the ITBP in favour of the Deputy Commissioner, Kamrup (M). [8] In the affidavit-in-reply filed by the petitioners against the affidavit filed by the respondent No.1, it is reiterated that continuation of the land acquisition proceeding after was without jurisdiction. It is stated that the market value was not determined as per Section 26 of the 2013 Act and instead was fixed by taking the Government notified value for registration. It is also stated that there is anomaly in the acquisition proposal as about 17 Bighas of land belonging to the petitioner No.23 was left out, though the same was within the proposed acquired land. [9] Another affidavit-in-opposition was filed by the respondent No.2 stating that land proposed to be acquired was valued at Rs.37,500/- per Bigha by the Circle Officer, Sonapur Revenue Circle and accordingly, after getting the approval from the Government of Assam, the Deputy Commissioner fixed the value of the land at Rs.37,500/- per Bigha. By a letter dated , the Revenue and Disaster Management Department requested the Deputy Commissioner, Kamrup (M) to re-determine the compensation amount as per 2013 Act and thereafter, the Deputy Commissioner (M) fixed the value of the land at Rs.50,000/- per Bigha. It is also stated that the land was valued at Rs.37,500/- per Bigha (in Faring Class of land) based on zonal valuation fixed in the year It is further stated that the land belongs to non-cadastral (NC) village, which is situated in a hilly area, approximately 1 to 1.5 Km away from the National Highway-37. Sale Deeds were not found available for lack of transaction of land in the said village and, therefore, comparison of the land value of adjacent villages, which are cadastral surveyed village, will be of no assistance to determine the value of the acquired land in question. In the affidavit-in-reply filed by the petitioners against the aforesaid affidavit of respondent No.2, it is stated that the land value of Rs.50,000/- per Bigha was not fixed in terms of the provisions of 2013 Act and that the same was fixed by the Deputy Commissioner, Kamrup (M) by order dated on the basis of the land value fixed by the Revenue and Disaster Management Department, communicated by letter dated It is averred that the respondent No.3 had submitted details in respect of market value of the land as per provision of Section 26 of the 2013 Act and in the year 2011, 2012 and 2013, value per Bigha was fixed at Rs.4,00,000/- WP(C) No.5067/2015 Page 5 of 16

6 and in the year 2012, 2013 and 2015, it was fixed at Rs.5,00,000/- by taking into consideration sale deeds. It is also stated that in the year 2005, land was acquired at Karchia (C) for Seema Suraksha Bal at Rs.4,19,000/- per Bigha. [10] The undisputed facts are that Notification under Section 4 of the 1894 Act was issued in respect of 199 Bighas 4 Kathas 8 Lechas of Periodic Patta Land and 64 Bighas 3 Kathas 12 Lechas of Annual Patta land in village-karchia, Non-Cadastral (NC), Mouza- Panbari for setting up of Battalion Headquarter of ITBP. [11] Mr. S. Kataki, learned counsel for the petitioners has submitted that after coming into force of the 2013 Act w.e.f , the L.A. Case No.22/2013 could not have been proceeded with in terms of the provisions of 1894 Act. The Notification dated under Section 5A and the Notification dated under Section 6 of the 1894 Act are not sustainable in law as the 1894 Act stood repealed w.e.f He submits that only if the award was remaining to be passed before coming into force of the 2013 Act, recourse could have been taken under Section 24(1) of the 2013 Act but that is not the position in the instant case. He has, however, submitted that if fair compensation is awarded to the petitioners in terms of Sections 26 to 30 of the 2013 Act, the petitioners will have no objection for acquiring of their land. He has also submitted that the amount of Rs.50,000/- per Bigha is fixed on a direction issued by the Revenue and Disaster Management Department dated and, therefore, the same is not in conformity with the mode prescribed under the 2013 Act inasmuch as, it is the Collector who has to assess and determine the market value of the land based on the parameters given in Section 26 of 2013 Act. It is submitted by him that it is not correct as contended in the affidavit filed by the respondent No.2 that no sale deeds are available. The Circle Officer, Sonapur Revenue Circle, on the basis of sale deeds of Karchia-NC and Karchia-C, had indicated that average sale price of land per Bigha is Rs.5,00,000/- and, therefore, the valuation fixed at Rs.50,000/- per Bigha on the basis of a letter issued by the Revenue and Disaster Management Department cannot form the basis for determination of compensation payable. Mr. Kataki, however, does not dispute that other than the above, there is no infirmity in the process of computation of the compensation amount. Mr. Kataki has placed reliance on the following cases: Gajraj Singh -Vs- The State Transport Appellate Tribunal & Ors., reported in AIR 1997 SC 412, Mohan Raj -Vs- Dimbeswari Saikia & Anr., reported in (2007) 15 SCC 115, Pune Municipal Corporation & Anr. -Vs- Harakchand Misirimal Solanki & Ors., reported in (2014) 3 SCC 183 and Soorajmull Nagarmull -Vs- State of Bihar & Ors., reported in (2015) 10 SCC 270. WP(C) No.5067/2015 Page 6 of 16

7 [12] Mr. Y. Doloi, learned Additional Advocate General, Assam has submitted that the contention advanced by the learned counsel for the petitioners that the instant L.A. Case No.22/2013 had lapsed and no award could have been passed after coming into force 2013 Act on is misconceived and to buttress the contention, he places reliance on Section 24 of the 2013 Act. He has also submitted that the records of the land acquisition case does not contain any sale deed or any letter of the Circle Officer, Sonapur Revenue Circle indicating that average price of land per Bigha is Rs.5,00,000/- in village Karchia-NC and Karchia-C. He has laid special emphasis to Explanation 4(3) of Section 26 of the 2013 Act. It is submitted by him that the petitioners ought to have taken recourse to Section 64 of the 2013 Act if they had grievance with regard to the amount of compensation and in that view of the matter, the present writ petition is not maintainable. [13] Though at one point of time during the hearing, Mr. C.K.S. Baruah, learned Central Government counsel had submitted that a fresh proceeding ought to have been started under the provisions of the 2013 Act and that direction may be issued to State authorities to initiate a fresh proceeding within a specific period of preferably about 4(four) months, subsequently, the stand has been abandoned and Mr. Keyal as well as Mr. Baruah had endorsed the submissions of Mr. Doloi. Mr. Keyal has placed reliance on the following judgments: Civil Appeal No.8468/2015 dated in the case of The Working Friends Cooperative House Building Society Limited -Vs- State of Punjab & Ors. and Civil Appeal No.4821/2016 dated in the case of Aligarh Development Authority -Vs- Megh Singh. [14] I have given due consideration to the submissions of the learned counsel appearing for the parties and have perused the pleadings of the parties as well as the records produced by Mr. Doloi. [15] The 1894 Act was a general law relating to acquisition of land for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition. The Statement of Objects and Reasons of the 2013 Act recites, amongst others, that the provisions of the 1894 Act have been found to be inadequate in addressing certain issues like rehabilitation and resettlement to the affected and displaced persons and their families and that it was imperative, in view of the growing public concern on land acquisition, especially multi-cropped irrigated land, to have a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement as acquisition of land, on the one hand, and rehabilitation and resettlement, on the other hand, are two sides of WP(C) No.5067/2015 Page 7 of 16

8 the same coin. The legislation proposed to address concerns of farmers and those whose livelihoods are dependent on the land being acquired, while at the same time facilitating land acquisition for industrialization, infrastructure and urbanization projects in a timely and transparent manner. Public purpose has been comprehensively defined, so that Government intervention in acquisition is limited to defence, certain development projects only. Consent of at least 80% of the project affected families is also provided to be obtained through a prior informed process. [16] The 2013 Act was thus enacted to ensure, in consultation with the institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialization, development of essential infrastructural facilities and urbanization with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto. [17] The 2013 Act came into force on after the Act received the assent of the President. Section 2(1) of the 2013 Act provides that the Act shall apply when the appropriate Government, which expression is defined in Section 3(e), acquires land for its own use, hold and control, including for Public Sector Undertakings and for public purpose, and shall include the purposes, namely- (a) for strategic purposes relating to naval, military, air force, and armed forces of the Union, including central paramilitary forces or any work vital to national security or defence of India or State police, safety of the people; or (b) for infrastructure projects, which includes the following, namely:- (i) all activities or items listed in the notification of the Government of India in the Department of Economic Affairs (Infrastructure Section) number 13/6/2009-lNF, dated the 27 th March, 2012, excluding private hospitals, private educational institutions and private hotels; (ii) projects involving agro-processing, supply of inputs to agriculture, warehousing, cold storage facilities, marketing infrastructure for agriculture WP(C) No.5067/2015 Page 8 of 16

9 and allied activities such as dairy, fisheries, and meat processing, set up or owned by the appropriate Government or by a farmers' cooperative or by an institution set up under a statute; (iii) project for industrial corridors or mining activities, national investment and manufacturing zones, as designated in the National Manufacturing Policy; (iv) project for water harvesting and water conservation structures, sanitation; (v) project for Government administered, Government aided educational and research schemes or institutions: (vi) project for sports, health care, tourism, transportation or space programme. (vii) any infrastructure facility as may be notified in this regard by the Central Government and after tabling of such notification in Parliament; (c) project for project affected families; (d) project for housing for such income groups, as may be specified from time to time by the appropriate Government; (e) project for planned development or the improvement of village sites or any site in the urban areas or provision of land for residential purposes for the weaker sections in rural and urban areas; (f) project for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by the Government, any local authority or a corporation owned or controlled by the State. [18] Sub-Section (2) of Section 2 of the 2013 provides that the provisions of the Act relating to land acquisition, consent, compensation, rehabilitation and resettlement shall also apply, when the appropriate Government acquires land for the purposes for public private partnership projects, where the ownership of the land continues to vest with the Government, for public purpose and also for private companies for public purpose, as defined in sub-section (1). It is provided that in case of acquisition for private companies, prior consent of at least eighty percent of those affected families and for public private WP(C) No.5067/2015 Page 9 of 16

10 partnership projects, prior consent of at least seventy percent of those affected families, as defined in sub-clauses (i) and (v) of Clause (c) of Section 3, shall be obtained through a process as may be prescribed by the appropriate Government. The first proviso provides that the process of obtaining the consent shall be carried out along with the Social Impact Assessment study referred to in Section 4. The second proviso stipulates that no land shall be transferred by way of acquisition, in the Scheduled Areas in contravention of any law (including any order or judgment of a court which has become final) relating to land transfer, prevailing in such Scheduled Areas. Sub-Section 3 provides that the provisions relating to rehabilitation and resettlement under this Act shall apply in the cases where a private company purchases land, equal to or more than such limits in rural areas or urban areas, as may be prescribed by the appropriate Government through private negotiations with the owner of the land in accordance with the provisions of Section 46 and also where a private company requests the appropriate Government for acquisition of a part of an area so prescribed for a public purpose. The proviso mentions that where a private company requests the appropriate Government for partial acquisition of land for public purpose, then, the rehabilitation and resettlement entitlements under the Second Schedule shall be applicable for the entire area which includes the land purchased by the private company and acquired by the Government for the project as a whole. [19] The undisputed fact is that the Notification under Section 4 of the 1894 Act in L.A. Case No.22/2013 was issued on , i.e. prior to coming into force of the 1894 Act. The question that arises for consideration is as to whether the Notification under Section 4 lapses as consequential steps such as objection hearing under Section 5A and Notification under Section 6 of the 1894 Act having not been issued as well as no award having been passed prior to repeal of 1894 Act on [20] Section 24 and Section 114 of the 2013 Act, in the aforesaid context, being relevant, are quoted herein below for ready reference:- 24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land 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 WP(C) No.5067/2015 Page 10 of 16

11 (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 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 Repeal and saving. (1) The land Acquisition Act, 1894 (1 of 1894) is hereby repealed. (2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals. [21] Section 6 of the General Clauses Act, 1897 (for short, GC Act ) being also relevant, is quoted for better appreciation:- 6. Effect of repeal. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or WP(C) No.5067/2015 Page 11 of 16

12 (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. [22] At this stage, it will be appropriate to take note of the decisions cited at the Bar. [23] In Gajraj Singh (supra), the Apex Court observed that whenever an Act is repealed, except as to transaction past and closed, it must be considered as if the Act had never existed. The effect thereof is to obliterate the Act completely as if it had never been passed and that it never existed except for the purpose of those actions, which were commenced, prosecuted and concluded while it was existing law. It is also observed that when there is a repeal and simultaneous re-enactment, Section 6 of the G.C. Act would apply to a case unless contrary intention can be gathered from the repealing Act. When the repeal is followed by fresh legislation on the same subject, the Court would have to look to the provisions of the new Act for the purpose of determining whether the new Act indicates different intention. [24] In Mohan Raj (supra), the Apex Court referred to Justice G.P. Singh s Principles of Statutory Interpretation (10 th Edition), 2006 at Page-631, wherein it was stated as follows:- Under the common law rule the consequences of repeal of a statute are very drastic. Except as to transactions past and closed, a statute after its repeal is as completely obliterated as if it had never been enacted. The effect is to destroy all inchoate rights and all causes of action that may have arisen under the repealed statute. Therefore, leaving aside the cases where proceedings were commenced, prosecuted and brought to a finality before the repeal, no proceeding under the repealed statute can be commenced or continued after the repeal. [25] In Pune Municipal Corporation (supra), the Apex Court interpreted the words compensation has not been paid as appearing in Section 24(2) of the 2013 Act to mean that for the purposes of Section 24(2), the compensation shall be regarded as paid if the compensation has been offered to the person interested and such compensation has been WP(C) No.5067/2015 Page 12 of 16

13 deposited in the Court where reference under Section 18 of the 1894 Act can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. [26] In Soorajmull Nagarmull (supra), the Apex Court, though took note of questions as to which provision in the 2013 Act will govern a situation where the State had not progressed beyond making a declaration under Section 6 or where possession of the land had not been assumed by the State or where neither part nor whole of the compensation had been paid or tendered, refrained from having a detailed discussion as the issue raised in the case did not warrant an adjudication on the said questions. [27] In Working Friends Cooperative House Building Society Limited (supra), the acquisition proceedings, in so far as the appellant was concerned, was held to have lapsed under Section 24(2) of the 2013 Act with the enactment of the 2013 Act on the ground that the compensation amount was neither paid to the appellant nor deposited in the reference Court. [28] In Aligarh Development Authority (supra), Section 4 Notification under 1894 Act was issued on Simultaneously, emergency clause was also invoked under the provisions of Section 17, followed by Section 6 declaration dated The acquisition was successfully challenged before the High Court. The requisitioning authority approached the Apex Court and when the matter was pending, plea was taken by the land owner that the proceeding had lapsed since neither the compensation had been paid to him nor the possession had been taken by the Collector. The admitted position was that no award was passed and accordingly, the Apex Court held that as the award had not been passed, there arises no question of lapse. While interfering with the judgment of the High Court, the Apex Court observed that the land acquisition proceedings would continue but with the rider that the award would have to be passed and compensation determined under the provisions of the 2013 Act. [29] Section 24 of the 2013 Act starts with a non-obstante clause to the effect that notwithstanding anything contained in the Act, in any case of land acquisition proceedings initiated under the 1894 Act, all provisions of the 2013 Act shall apply relating to the determination of compensation where no award under Section 11 of the 1894 Act had been made and where an award had been made under Section 11 of the 1894 Act, then such proceedings shall continue under the provisions of the 1894 Act as if the said Act had not been repealed. Sub-Section (2) provides that notwithstanding passing of an award under Section 11 of the 1894 Act, if the same had been made 5(five) years or more prior to the WP(C) No.5067/2015 Page 13 of 16

14 commencement of the 2013 Act and the physical possession of the land had not been taken or the compensation had not been paid, the said land acquisition proceedings shall be deemed to have lapsed. Proviso to sub-section (2) is relatable to Section 24(1)(b). The proviso to Section 24(2) mandates that if an award had been passed and made but compensation in respect of a majority of land holdings had not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the 1894 Act, shall be entitled to compensation in accordance with the provisions of the 2013 Act. [30] In the instant case, no award under Section 11 of the 1894 Act had been made though land acquisition proceeding was initiated with the issuance of Notification under Section 4 of the 1894 Act prior to its repeal. After issuance of the Notification under Section 4 of the 1894 Act, there are various stages till making of the award under Section 11 of the 1894 Act. The award under the 1894 Act may not have been passed during the currency of 1894 Act for a number of reasons: may be, the intermediate steps had not been completed and stage had not been reached for making the award or, though the stage was well set for passing of the award, yet the award was not passed. The legislature, while enacting the 2013 Act, in Section 24(1)(a) has provided that in any case of land acquisition proceeding under the 1894 Act, where no award under Section 11 of the 1894 Act had been made, then, all provisions relating to the determination of compensation of 2013 Act would apply. [31] Land acquisition proceeding initiated under 1894 Act lapses only under the contingency as envisaged under Section 24(2) of the 2013 Act. It is to be noticed that in Section 24(1)(a) of the 2013 Act, the legislature has not made any classification with regard to the stage of land acquisition proceeding and mandating that only after a certain stage is reached in the land acquisition proceeding, if an award is not passed, all provisions of 2013 Act relating to determination of compensation shall apply. The expression where no award under Section 11 of the Land Acquisition Act has been made, to attract provisions relating to determination of compensation under 2013 Act, is broad based. The legislative intendment seems to be that once a Notification under Section 4 under 1894 Act is issued, though the 1894 Act is repealed, such Notification will continue to hold the field with the rider that award, however, cannot be passed under the provisions of the 1894 Act but the award has to be made in terms of the provisions of 2013 Act relating to determination of compensation and, therefore, from that stage, provisions of the 2013 Act, will be applicable. In case an award under Section 11 of the 1894 Act was made, the position is that such proceeding shall continue under the provisions of the 1894 Act as if the 1894 Act had never been repealed. WP(C) No.5067/2015 Page 14 of 16

15 Thus, under the provisions of the 2013 Act, though land acquisition proceeding was not brought to a finality before the repeal, proceedings commenced under the 1894 Act could be continued. The Parliament has, as it appears, sought to give the erstwhile land owner the benefit of enhanced compensation under the 2013 Act in respect of land acquisition proceeding initiated under the 1894 Act. [32] Mr. Kataki had not disputed that the process of computation of the compensation amount had been undertaken in terms of the provisions contained in the 2013 Act but he questions the market value fixed by the Collector. [33] Section 51 of the 2013 Act provides for establishment of Land Acquisition, Rehabilitation and Resettlement Authority (for short, Authority ) for disposal of disputes relating to land acquisition, compensation, rehabilitation and resettlement. [34] Section 64 of the 2013 Act provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters-V and VI or the apportionment of the compensation among the persons interested. The first proviso to Section 64 requires the Collector to make a reference to the appropriate Authority within a period of 30(thirty) days from the date of receipt of application. The second proviso enables an applicant to apply to the Authority requesting it to direct the Collector to make the reference to it within a period of 30(thirty) days where the Collector failed to make such reference within the period prescribed under the first proviso to Section 64. Section 64(2) provides that such application shall be made within 6(six) weeks from the date of the Collector s award if the person making it was present or represented before the Collector at the time when he had made his award and in other cases, within 6(six) weeks of the receipt of the notice from the Collector under Section 21, or within 6(six) months from the date of the Collector s award, whichever period shall first expire. It is also provided that a Collector may entertain an application after the expiry of the aforesaid period, within a further period of 1(one) year, if he satisfies that there was sufficient cause for not filing the application within the period prescribed. [35] Section 69(1) of the 2013 Act provides that in determining the amount of compensation to be awarded for land acquired including the rehabilitation and resettlement entitlements, the Authority shall take into consideration whether the Collector has followed WP(C) No.5067/2015 Page 15 of 16

16 the parameters set out under Section 26 to Section 30 and the provisions of Chapter-V of the Act. [36] Section 60 of the 2013 Act provides that the Authority shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and examining him on oath; discovery and production of any document or other material object producible as evidence; receiving evidence on affidavits; requisitioning of any public record; issuing commission for the examination of witnesses; reviewing its decisions, directions and orders and any other matter which may be prescribed. The requiring authority or any person aggrieved by the award passed by an Authority under Section 69 may file an appeal to the High Court under Section 74 of the 2013 Act within 60(sixty) days from the date of the award. [37] In view of the elaborate scheme engrafted in the 2013 Act to redress any grievance with regard to the amount of compensation, it is the considered opinion of the Court that this Court ought not to venture to embark upon a journey to find out as to whether the amount of Rs.50,000/- represents the true market value of the land. This Court is conscious of the fact that the period prescribed under Section 64 to make an application to the Collector for making a reference to the Authority may have expired. Since the writ petitioners had also questioned the legitimacy of the award passed by the Collector on the ground that the award was without jurisdiction, the 1894 Act having repealed, it will be in the furtherance of justice to grant an opportunity to the petitioners to submit their application before the Collector, even at this stage, under Section 64 of the 2013 Act. [38] In view of the above discussions, the writ petition is disposed of by permitting the petitioners to submit their applications before the Collector under Section 64 of the 2013 Act within a period of 6(six) weeks from today and in the event of any such application being made within the aforesaid period, the Collector shall make a reference to the appropriate Authority within a period of 30(thirty) days from the date of receipt of the application and thereafter, the Authority shall proceed with the matter in accordance with law. [39] The writ petition stands disposed of in terms of the above observations and directions. No costs. M. Sharma J U D G E WP(C) No.5067/2015 Page 16 of 16