1. A notification under section 4(1) read with section 17(4) of the Land Acquisition Act, 1894 (1984 Act) was issued on 2 December 2004 for acquisition of a large tract of land measuring 229.5390 acres situated in village Mahiuddinpur Kanawani, Pargana Loni, Tehsil Dadri in District Gautam Budh Nagar including land measuring 5.1129 acres belonging to the petitioner. This was followed by a declaration made under section 6 of the 1894 Act on 28 November 2005. The petitioner filed Writ-C No.77751 of 2005 to challenge the acquisition. Initially an interim order was passed on 22 December 2005 staying dispossession of the petitioner from the land in question but the petition was ultimately disposed of on 7 December 2007 with a direction to the Ghaziabad Development Authority, Ghaziabad (Development Authority) to implement its Board''''s Resolution dated 20 February 2003 for release of the land belonging to the petitioner within a period of one month. The Development Authority preferred Special Leave Petition No.18828 of 2008 in which an order was passed on 17 April 2009 granting leave and also staying the impugned order of the High Court. On 15 December 2014 possession of 5.1129 acres of land belonging to the petitioner was taken and handed over to the acquiring body. The award was thereafter made on 8 May 2015 under section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act), which came into force on 1 January 2014. It is this award that has been impugned in the present petition with a further relief that compensation should be paid to the petitioner strictly in accordance with the provisions of the 2013 Act.
2. The sole contention of Sri Umesh Narain Sharma, learned Senior Counsel appearing for the petitioner assisted by Sri Chandan Sharma is that the date for determination of the market value of the land under section 26 of the 2013 Act should be 1 January 2014, on which date the 2013 Act came into force, in view of the directions contained in the Circular dated 26 August 2015 of the Central Government under section 113 of the 2013 Act and not the date of publication of the notification issued under section 4(1) of the 1894 Act. The submission, therefore, is that the award should be modified to that extent instead of quashing it. In support of his contention, learned Senior Counsel has placed reliance upon three Division Bench judgments of this Court in Writ-C No.15804 of 2016 Prahlad Singh & Ors. v. State of U.P. & Ors. decided on 26 September 2016, Writ-C No.44731 Hori Lal v. State of U.P. & Ors. decided on 9 March 2017 of 2016 and Writ-C No.40 of 2017 Deepak Kumar Singh & Ors. v. State of U.P. & Ors. decided on 28 March 2017.
3. Sri Ravi Kant, learned Senior Counsel appearing for the Development Authority assisted by Sri Mahendra Pratap and the learned Standing Counsel appearing for the State-respondents have, however, contended that the date for determination of the market value of the land should be the date on which the notification under section 4(1) of the 1894 Act was issued and not 1 January 2014. For this, reliance has been placed by the learned Senior Counsel on the provisions of sections 11, 23 and 26 of the 2013 Act. Learned Senior Counsel contended that the directions issued by the Central Government were never placed before each House of Parliament as is contemplated under section 113(2) of the 2013 Act and, therefore, cannot be relied upon.
4. We have considered the submissions advanced by learned counsel for the parties.
5. The date of publication of the notification under section 4(1) of the 1894 Act is 2 December 2004 and the date on which the declaration was made under section 6 of the 1894 Act is 28 November 2005. The petitioner had challenged the acquisition proceedings in Writ-C No.77751 of 2005 and an interim order was passed on 22 December 2005 that the petitioner shall not be dispossessed from the land in question. The writ petition was disposed of on 7 December 2007 with a direction to the Development Authority to implement the decision taken by the Board on 20 February 2003 for release of the land belonging to the petitioner but this judgment of the High Court was stayed by the Supreme Court on 17 April 2009 in the Special Leave Petition filed by the Development Authority.
6. The award was made by the Special Land Acquisition Officer under section 11 of the 1894 Act for the acquired land, except the land of the petitioner, on 22 April 2012 and the award for the land belonging to the petitioner was made on 8 May 2015 under section 23 of the 2013 Act. This award dated 8 May 2015 has been made by determining the market value of the land as on the date of issue of the notification under section 4(1) of the 1894 Act, though the provisions of section 26 of the 2013 Act have been applied for determining the compensation.
7. In order to appreciate the contentions of learned Senior Counsel for the parties, it would be appropriate for the Court to refer to the provisions of the 2013 Act relevant for determining the controversy.
8. The provisions of sections 23, 24, 26, 27, 28, 30 and 113 of the 2013 Act are, therefore, reproduced below :
"23. Enquiry and land acquisition award by Collector.-On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 21, to the measurements made under section 20, and into the value of the land at the date of the publication of the notification, and into the respective interests of the persons claiming the compensation and rehabilitation and resettlement, shall make an award under his hand of-
(a) the true area of the land;
(b) the compensation as determined under section 27 along with Rehabilitation and Resettlement Award as determined under section 31 and which in his opinion should be allowed for the land; and
(c) the apportionment of the said compensation among all the persons known or believed to be interested in the land, or whom, or of whose claims, he has information, whether or not they have respectively appeared before him.
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,-
(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 subsection (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.
26. Determination of market value of land by Collector.-(1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:-
(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or
(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or
(c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for private companies or for public private partnership projects,
whichever is higher:
Provided that the date for determination of market value shall be the date on which the notification has been issued under section 11.
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(2) The market value calculated as per sub-section (1) shall be multiplied by a factor to be specified in the First Schedule.
(3) .........................
27. Determination of amount of compensation.-The Collector having determined the market value of the land to be acquired shall calculate the total amount of compensation to be paid to the land owner (whose land has been acquired) by including all assets attached to the land.
28. Parameters to be considered by Collector in determination of award.-In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration-
firstly, the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules;
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector''''s taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of the Collector''''s taking possession of the land, by reason of severing such land from his other land:
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector''''s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;
sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector''''s taking possession of the land; and
seventhly, any other ground which may be in the interest of equity, justice and beneficial to the affected families.
30. Award of solatium.-(1) The Collector having determined the total compensation to be paid, shall, to arrive at the final award, impose a "Solatium" amount equivalent to one hundred percent of the compensation amount.
Explanation.-For the removal of doubts it is hereby declared that solatium amount shall be in addition to the compensation payable to any person whose land has been acquired.
(2) The Collector shall issue individual awards detailing the particulars of compensation payable and the details of payment of the compensation as specified in the First Schedule.
(3) In addition to the market value of the land provided under section 26, the Collector shall, in every case, award an amount calculated at the rate of twelve per cent. per annum on such market value for the period commencing on and from the date of the publication of the notification of the Social Impact Assessment study under sub-section (2) of section 4, in respect of such land, till the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
113. Power to remove difficulties.-(1) If any difficulty arises in giving effect to the provisions of this Part, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of this Act as may appear to it to be necessary or expedient for the removal of the difficulty:
Provided that no such power shall be exercised after the expiry of a period of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament."
9. Section 11(1) deals with publication of the preliminary notification. This section corresponds to section 4(1) of the 1894 Act. Section 19(1) relates to the publication of declaration and corresponds to section 6(1) of the 1894 Act. Section 21 deals with notice to persons interested and corresponds to section 9 of the 1894 Act. Section 23 deals with enquiry and award by the Collector and corresponds to section 11 of the 1894 Act. Section 24(1) provides that in case land acquisition proceedings were initiated under the provisions of the 1894 Act but award could not be made prior to the commencement of the 2013 Act, then all the provisions of the 2013 Act relating to the determination of compensation, shall apply. Section 26 provides for determination of market value of the land by the Collector. Section 27 deals with determination of amount of compensation. It provides that the Collector having determined the market value of the land to be acquired shall calculate the total amount of compensation to be paid to the land owners by including all assets attached to the land. Section 28 deals with parameters to be considered by the Collector in determination of award. Section 30 deals with award of solatium and the amount calculated at the rate of 12% per annum of the market value of the land. Section 113 deals with the power to remove difficulties.
10. Section 23 of 2013 Act, as noted above, relates to the award to be made by the Collector. It provides that the Collector shall proceed to enquire into the objections, if any, which any person interested has stated pursuant to a notice given under section 21 and into the value of the land at the date of the publication of the notification. Section 24 provides that in case land acquisition proceedings had been initiated under the 1894 Act and no award has been made under section 11 of the said Act prior to the commencement of the 2013 Act, then all the provisions of the 2013 Act relating to the determination of compensation shall apply. In the present case the land acquisition proceedings were initiated under the provisions of the 1894 Act when the notification under section 4(1) of the 1894 Act was published on 2 December 2004 but award under section 11 of the 1894 Act was not made prior to the commencement of the 2013 Act on 1 January 2014. Thus, all the provisions relating to determination of compensation contained in the 2013 Act will apply. This is also what has been observed by the Special Land Acquisition Officer while making the award under section 23 of the 2013 Act on 8 May 2015.
11. Section 26 deals with determination of market value of land. Amongst others, it provides that the date for determination of the market value of the land shall be the date on which the notification has been issued under section 11 of the 2013 Act. In the present case, there cannot be any notification under section 11 of the 2013 Act as the proceedings had been initiated under the provisions of the 1894 Act by issuance of the notification under section 4(1) of the 1894 Act. Under section 24(1) of the 2013 Act, the compensation has to be determined under the provisions of 2013 Act since the award was not made prior to the commencement of the 2013 Act on 1 January 2014. What then should be the date for determination of the market value under the provisions of section 26 of the 2013 Act. It is for this reason that directions were sought by the Maharashtra Government from the Central Government under section 113 of the 2013 Act. The directions which were sought and which were given by the Central Government are as follows :
"Please refer to your letter No.R&FD/General-2014 CR-31/A4, dated the 11th September, 2014 regarding directions under section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
2. The issues raised by you along with the views of this Department were sent to the Department of Legal Affairs, Ministry of Law & Justice for opinion in the matter. The issues raised by the Government of Maharashtra and the opinion of the Department, as concurred in by the Department of Legal Affairs, thereon are enumerated below :-
S. No.
Issues raised by the Government of Maharashtra
Opinion of the DoLR
1. While determining the amount of compensation under Section 27 of the RFCTLAR&R Act, 2013 of Hon''''ble Supreme Court''''s orders are followed or cost of assets have to be separately computed in addition to cost of land?
Under Section 26 of the RFCTLAR&R Act, 2013 market value of land is determined while under section 27, value of all assets attached to the land is added to the market value to determine the amount of compensation. Thus, it is not contradictory to the Supreme Court''''s orders quoted in the letter of Maharashtra Government.
2
Under Section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894.
Under section 24(1), the reference date for calculating 12% interest should be date of preliminary notification under Land Acquisition Act, 1894. Department of Land Resources agrees to this, as there is no other reference date, that can be treated as equivalent to date of SIA notification under the RFCTLAR&R Act, 2013.
3
For calculation of market value, under Section 24(1)(a), reference date should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013) or date of issuing preliminary notification under Land Acquisition Act, 1894?
The reference date for calculation of market value, under Section 24(1)(a) should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013), as the Section reads "in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, 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.
Under section 26 reference date is date of preliminary notification, but section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested (i.e. 01.01.2014) with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the provisions of the RFCTLAR&R Act, 2013 (as also recommended by Standing Committee in its 31st report).
12. In the present case, the direction contained at Serial No.3 is important. Notice was taken of the provisions of section 26 of 2013 Act that the date for determination of the market value shall be the date on which the notification has been issued under section 11. Notice has also been taken of section 24 which provides for application of provisions of 2013 Act in cases where land acquisition proceedings had commenced under the 1894 Act but award could not be made prior to the commencement of the 2013 Act. The directions provide that in such a situation 1 January 2014 should be taken as the date for determination of the market value of the land for payment of compensation so as to ensure that the land owners get enhanced compensation. This was also recommended by the Standing Committee in its 31st report.
Section 28 of the 2013 Act also provides that the Collector shall take into consideration the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules. When the compensation has to be determined under the provisions of the 2013 Act if the award could not be made prior to 1 January 2014 when the 2013 Act came into force in cases where acquisition proceedings had commenced under the provisions of 1894 Act, then 1 January 2014 can be taken as the date for determination of the market value of the land since the preliminary notification under section 11(1) of 2013 Act could not have been issued.
13. The submission of Sri Ravikant, learned Senior Counsel appearing for the Development Authority is that the aforesaid directions contained in the communication dated 26 October 2015 of the Government of India, Department of Land Resources, Ministry of Rural Development to the Maharashtra Government cannot be treated as directions issued under section 113 of the 2013 Act since they have not been laid before each House of Parliament.
14. Section 113 provides that if any difficulty arises in giving effect to the provisions of Part-II, the Central Government may, by order, make such provisions or give such directions not inconsistent with the provisions of the Act as may appear to it to be necessary or expedient for the removal of the difficulty. Subsection (2) of section 113 provides that every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. It does not provide that directions have also to be laid before each House of Parliament.
The State of Maharashtra sought directions under the provisions of section 113 of the Act and such directions have been given on the basis of the opinion rendered by the Department of Legal Affairs, Ministry of Law and Justice. The Central Government has given such directions to ensure that the land owners get enhanced compensation under the provisions of the 2013 Act as was also recommended by the Standing Committee in its 31st report. The Central Government had not issued any order and had only issued directions after taking the opinion from the Department of Legal Affairs. Such directions were, therefore, not required to be laid before the two Houses of Parliament. The directions are also not inconsistent with the provisions of the 2013 Act. Infact they seek to remove the difficulty in giving effect to the provisions of the 2013 Act.
The three Division Bench judgments referred to above have also held that where land acquisition proceedings had commenced under the provisions of 1894 Act but award was not made prior to 1 January 2014 under section 11 of the 1894 Act, then in that case, all the provisions of 2013 Act relating to determination of compensation shall apply and the date for determination of the market value of the land should be treated as 1 January 2014 in terms of the directions issued by the Central Government.
15. It also needs to be noted that the Government of Odisha had also taken a decision that the date for determining the market value of the land for calculation of compensation in cases where no award has been made under section 11 of the 1894 Act prior to 1 January 2014, shall be determined by treating 1 January 2014 as the date on which the market value has to be determined. In this connection, reference has also been made to the aforesaid communication dated 26 October 2016 sent by the Government of India, Department of Land Resources, Ministry of Rural Development. The relevant portion contained in R & D.M. dated 3 December 2015 of the Odisha Government is as follows :
"2. Land owners in certain cases including Remuna Project have represented to Government to reconsider the decision in view of the fact that land cost of the acquired land has increased substantially during the period from date of 4(1) notification under the old Act and date of commencement of the new RFCTLAR&R Act and thereby, land owners are bearing heavy monetary loss.
3. In the meantime, Joint Secretary, Department of Land Resources, Ministry of Rural Development, Government of India vide his D.O. No.13013/01/2014-LRD(Pt), dated 26.10.2015 (copy enclosed) has clarified that the reference date for calculation of market value under section 24(1)(a) should be 01.01.2014 (commencement of RFCTLAR&R Act, 2013). Under Section 26 of the Act reference date is date of preliminary notification, but section 24 is a special case of application of the Act in retrospective cases, and a later date of determination of market value is suggested with a view to ensure that the land owners/farmers/affected families get enhanced compensation under the new RFCTLAR&R Act.
4. Keeping the above in view, Government after careful consideration have been pleased to instruct that the cutoff date for ascertaining market value for calculation of compensation shall be the date of commencement of the RFCTLAR&R Act, 2013 i.e. 01.01.2014 in following cases initiated prior to 31.12.2013.
In cases, where no Award under section 11 of the old Act has been passed.
In cases, where Award has been passed, but compensation in respect of a majority of land holdings has not been paid/deposited in the account of beneficiaries as specified in 4(1) Notification. In such cases, all beneficiaries (including those who have already received the compensation) shall get enhanced compensation as per the new Act.
However, this shall not be applicable to cases initiated prior to 31.12.2013, where award has been passed and compensation paid in case of majority of holdings."
16. The Special Land Acquisition Officer shall, therefore, redetermine the award by determining the market value of the land as on 1 January 2014.
17. As regards the payment of the amount calculated at the rate of 12% per annum on the market value under section 30(3) of the 2013 Act, the Special Land Acquisition Officer has, in the award dated 8 May 2015, observed that it shall be determined after the legal opinion is received from the State Government. It will, therefore, not be appropriate for the Court to make any comments at this stage though the Government of India, Department of Land Resources, Ministry of Rural Development has also clarified this issue at Serial No.2 in the communication dated 26 October 2015.
18. The writ petition is, accordingly, disposed of with a direction to the Special Land Acquisition Officer to re-determine the amount of compensation payable to the petitioner under the provisions of the 2013 Act by treating 1 January 2014 as the date on which the market value of the land should be determined. This exercise should be completed expeditiously and preferably within a period of three months from the date a certified copy of the order is filed before the Special Land Acquisition Officer.
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