STATE OF GUJARAT AND ORS. versus JAYANTIBHAI ISHWARBHAI PATEL on 17 March 2023

696

[2023] 2 S.C.R. 696

SUPREME COURT REPORTS

[2023] 2 S.C.R.

STATE OF GUJARAT AND ORS.

A

v.

JAYANTIBHAI ISHWARBHAI PATEL

(Civil Appeal Nos. 1753-1754 of 2023)

BMARCH 17, 2023

[M. R. SHAH AND MANOJ MISHRA, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 : s. 24(2) –Land acquisition, when deemed to have lapsed – Subject landacquired in 1992 for resettlement Project – Consent award passed C

– Thereafter, order passed for payment of 90% and 10%compensation, however the land owner did not accept the same –Land owner applied for cancellation of acquisition – Thereafter,order of compensation under the award came to be cancelled –DHowever, land owner in possession of land and continued tocultivate– Thereafter, the amount of compensation as granted bythe consent award restored – Writ petition by the land owner forsetting aside the consent award – Meanwhile, 2013 Act came intoeffect – High Court held the acquisition deemed to have lapsed inview of s. 24(2) – On appeal, held: For a deemed lapse u/s. 24(2),Ethere shall be a lapse on the part of the Acquiring Body / beneficiaryin not taking the possession and not paying the compensation –Both the conditions not satisfied – There was a consent award underthe 1894 Act – Possession was taken by drawing the panchnama atthe time of passing of the consent award – However, because of theFreluctance on the part of the land owner, he did not actually andphysically hand over the possession and continued to cultivate theacquired land which actually vested in the State Government –Compensation was offered pursuant to the consent award but theland owner refused to accept the same, thus, there cannot be anydeemed lapse of acquisition u/s. 24(2) – Once the land owner refusesGto accept the amount of compensation offered by the Acquiring Body,it would not be open for the original land owner to pray for lapseof acquisition on the ground that the compensation has not beenpaid – High Court did not appreciate and consider the conduct onthe part of the land owner – Thus, impugned the order of the HighHCourt quashed and set aside.

Allowing the appeal, the Court

HELD: 1.1 As per the law laid down by this Court in thecase of Indore Development Authority, taking over the possessionof the land by drawing panchnama is held to be legally permissibleand can be said to be taking over the possession legally. In theinstant case, there was a consent award under Section 11 of theAct, 1894. The possession was taken by drawing the panchnamaat the time of passing of the consent award dated 11.06.1993.However, thereafter, because of the reluctance on the part of theland owner, he did not actually and physically hand over thepossession and he continued to cultivate the acquired land whichactually vested in the State Government / Acquiring Body / SardarSarovar Rehabilitation Agency. [Para 5.4][709-H; 710-A-B]

1.2 There shall not be any deemed lapse u/s. 24(2) of theAct, 2013 on the ground that the amount of compensation wasnot paid. After the consent award, under Section 11 of the Act,1894, was passed on 11.06.1993, the amount of compensationwas in fact offered to the land owner alongwith other land ownersand the respondent-original land owner was called upon to remainpresent in the office of Talati-cum Mantri to receive/accept thecompensation. However, the land owner refused to accept thecompensation though offered. In that view of the matter, oncethe compensation was offered, which as such was offered pursuantto the consent award under Section 11 of the Act, 1894, but theland owner refused to accept the same, how there can be anydeemed lapse of acquisition u/s. 24(2) of the Act. [Para 6][710-C-E]

1.3 For a deemed lapse under Section 24(2) of the Act, 2013,there shall be a lapse on the part of the Acquiring Body /beneficiary in not taking the possession and not paying thecompensation. In the present case, both the conditions are notsatisfied. In fact, the amount of compensation under the consentaward under Section 11 of the Act, 1894 was offered and the landowner was called upon to accept the compensation however, theland owner refused to accept the same. Even the possession wastaken by drawing the panchnama at the time of declaration of theconsent award under Section 11 of the Act, 1894. However, A

B

C

D

E

F

G

H

Athereafter, because of the reluctance on the part of the originalland owner, the physical and actual possession of the land couldnot be taken by the Acquiring Body. From the aforesaid it can beseen that there was no lapse at all on the part of the Authorityneither in offering / paying the compensation nor in not takingBthe possession. Therefore, the Division Bench of the High Courtmaterially erred in declaring that the acquisition with respect tothe land in question is deemed to have lapsed under Section 24(2)of the Act, 2013. [Para 6.1][710-F-H; 711-A-B]

1.4 As regards, the impugned judgment and order passedCby the High Court in setting aside the award dated 11.06.1993 onthe ground that the award has not been implemented for numberof years and the amount of compensation has not been paid fornumber of years and the land is not utilized / used for number ofyears is concerned, at the outset it is required to be noted that itwas the original owner who refused to accept the compensationDoffered in the year 1993. Therefore, an order dated 07.05.1993was passed cancelling the order of offering the compensation.However, the acquisition and the consent award, both continued.However, thereafter, the land owner continued to makerepresentations to release the land from acquisition. Therefore,Eit was the original land owner who did not accept the compensationoffered and continued to make representations to release theland from acquisition. In these circumstances, the Division Benchcommitted a very serious error in setting aside the consent awardon the aforesaid ground. The consent award under Section 11 ofthe Act, 1894 ought not to have been set aside in the manner inFwhich it is set aside. The High Court has not at all properlyappreciated and considered the conduct on the part of the landowner. At this stage it is required to be noted that at many placesthe High Court has observed that “the petitioner, alongwith otherland owners of the area, agreed to acquisition of his land on aGfixed rate of compensation”. Even the High Court has also takennote of the fact that the amount of compensation was offered butthe original land owner refused to accept the same. Once theland owner refuses to accept the amount of compensation offered H

by the Acquiring Body, thereafter it will not be open for the originalland owner to pray for lapse of acquisition on the ground that thecompensation has not been paid. There shall be deemed lapse ofacquisition u/s. 24(2) if there is a lapse on the part of the AcquiringBody / beneficiary in not taking the possession and thecompensation is not paid. Even otherwise, for the deemed lapseu/s. 24(2), twin conditions of not taking the possession and notpaying the compensation, both are required to be satisfied.Therefore, if one of the conditions is not satisfied, there shall notbe any deemed lapse. [Para 7][711-B-H; 712-A-B]

1.5 As regards, the prayer on behalf of the land owner toremand the matter to the High Court to consider the legality andvalidity of the subsequent order dated 21.01.2009 cancelling theearlier order dated 07.03.1995 is concerned, at the outset it isrequired to be noted that the order dated 21.01.2009 was as suchnot the subject matter of the writ petition before the High Court.No prayer was made to set aside the order dated 21.01.2009passed by the Assistant Commissioner. What was challengedbefore the High Court was award under Section 11 of the Act,1894 and the subsequent communication dated 05.04.2010 issuedby the Special Land Acquisition Officer calling upon the landowner to remain present in the office of Talati cum Mantri toaccept the compensation and to release the land. Be that as itmay, assuming that the order dated 21.01.2009 was bad in lawand the earlier order dated 07.03.1995 is restored, in that casealso, it would not have a bearing on the aspect of deemed lapseunder Section 24(2) of the Act, 2013. The fact remains that thoughthe amount of compensation was offered and the original landowner was called upon to accept the compensation as per theconsent award, he refused to accept the same. [Para 8][712-B-E]

Indore Development Authority vs. Manoharlal and Ors.(2020) 8 SCC 129 : [2020] 3 SCR 1 – followed.

Case Law Reference

[2020] 3 SCR 1followed

Para 5.4

AB

C

D

E

F

G

H

ACIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1753-1754 of 2023.

From the Judgment and Order dated 31.08.2015 in SCA No. 9740of 2012 and dated 01.04.2016 in MCA No. 3036 of 2015 and SCANo.9740 of 2012 of the High Court of Gujarat at Ahmedabad.

B

Madhu Prakash, Rituraj Choudhary, Chandan Kumar, Ms.Deepanwita Priyanka, Ms. Sujeeta Srivastava, Advs. for the Appellants.

Vikramjeet Banerjee, A.S.G., Nakul Dewan, Sr. Adv., PradhumanGohil, Mrs. Taruna Singh Gohil, Ms. Ranu Purohit, Alapati SahithyaKrishna, Ms. Jaikriti S. Jadeja, Charudatta Vijayrao Mahindrakar, KeshavCHegde, Aftab Rasheed, Aftab Ali Khan, Kanu Agarwal, Rajan KumarChourasia, Ms. Baby Devi Bonia, A K Kaul, Shashank Bajpai, PrashantSingh II, Arvind Kumar Sharma, Sudarsh Menon, Samarendra Beura,Rajesh Rathore, Nitin Mishra, Ishaan Sharma, Ashwani Kumar, AnshayDhatwalia, Shree Pal Singh, N. S. Vasisht, Ms. Jyoti Kataria, Advs. forDthe Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 31.08.2015 passed by the High Court of Gujarat atEAhmedabad in Special Civil Application No.9740/2012 by which theDivision Bench of the High Court of Gujarat has allowed the said writpetition and has declared that the acquisition with respect to the land inquestion is deemed to have lapsed under Section 24(2) of the Right toFair Compensation and Transparency in Land Acquisition, RehabilitationFand Resettlement Act, 2013 (hereinafter referred to as “Act, 2013”) asalso the judgment and order dated 01.04.2016 passed by the High Courtof Gujarat in Misc. Civil Application (For Review) No.3036 of 2015 inSpecial Civil Application No.9740/2012, the State of Gujarat and othershave preferred the present appeals.

G2. The facts leading to the present appeals in nut-shell are asunder:

2.1 That, the respondent herein – original writ petitioner was theowner of the land bearing Survey No.287 admeasuring 2 Hectare 37Are 75 Sq. Mtrs. of village Tarsava, Taluka Vaghodia, District VadodaraH(hereinafter referred to as “land in question”). A notification under Section

4 of the Land Acquisition Act, 1894 (hereinafter referred to as “Act,1894”) came to be issued on 11.04.1991 to acquire the land in questionalongwith adjacent agricultural lands for the purpose of re-settlement ofNarmada Project oustees. That, thereafter, notification under Section 6of the Act, 1894 was issued on 06.02.1992. The respondent herein –original land owner – original writ petitioner entered into an agreementand a consent award was passed on 11.06.1993. As per the agreementand the consent award, initially 90% of the amount of compensationwas required to be paid to the land owners and 10% amount was requiredto be paid thereafter. However, it appears that the respondent – landowner had second thought about the consent and on 13.02.1995, hewrote to the Assistant Commissioner, Sardar Sarovar RehabilitationAgency that the compensation may not be paid and the land in questionbe released from acquisition. On such application, the AssistantCommissioner passed an order dated 07.03.1995, in which, he recordedthat the order was passed for payment of 90% of the compensation,however, the land owner did not accept such compensation. Thereafter,even the order of payment of remaining 10% of compensation was alsopassed however, the land owner – respondent herein did not acceptsuch compensation and that he has now applied for cancellation ofacquisition itself on the ground that due to family disagreements, he isnot prepared to sell the land. Thereafter, nothing further happened till2009 and it appears that the land owner/s continued to be in possessionand continued to cultivate the agricultural lands.

2.2 That, on 21.01.2009, the Assistant Commissioner, SardarSarovar Rehabilitation Agency cancelled the order dated 07.03.1995 byobserving that the acquisition of the land in question has been completedand the land has been vested in Sardar Sarovar Rehabilitation Agencyand on basis of that affected persons were allotted also and therefore,as per the legal provision, once an order is passed, it is mandatory tomake the payment of compensation. Therefore, the AssistantCommissioner, Sardar Sarovar Rehabilitation Agency cancelled the earlierorder dated 07.03.1995 and restored the order for 90% and 10% amountof compensation as per the earlier orders dated 05.05.1993 and09.02.1994 (for payment of 90% and 10% of the amount of compensationrespectively). Pursuant to the aforesaid order dated 21.01.2009 of theAssistant Commissioner, the Special Land Acquisition Officer videcommunication / letter dated 05.04.2010 conveyed to the respondentherein – original land owner that his case for payment of compensation AB

C

D

E

F

G

H

Ais fixed on 16.04.2010 in the office of Talati-cum-Mantri, Tarsava andtherefore, he shall remain present and receive compensation. That,thereafter the respondent No.1 – original writ petitioner filed the writpetition for setting aside the consent award dated 11.06.1993 passedunder Section 11 of the Act, 1894.

B2.3 Before the High Court, it was the case on behalf of respondentNo.1 – original writ petitioner – land owner that his request for withdrawalof the consent was accepted by the Special Land Acquisition Officerand thereafter, no compensation was received and the possession of theland in question was also not taken over and therefore, many years laterthe authority cannot implement the award by insisting on payment ofCcompensation.

2.4 In the meantime, Act, 2013 came into force with effect from01.01.2014 and therefore, Section 24(2) of the Act, 2013 was pressedinto service and it was submitted on behalf of the land owner that as,neither the compensation has been paid nor the possession of the land inDquestion is taken and that the land owner continued to be in possessionof the land in question, the acquisition proceedings are deemed to havelapsed under Section 24(2) of the Act, 2013.

2.5 It was the case on behalf of the Acquiring Body and the StateGovernment that the land owner cannot withdraw such consent onceEthe award was passed. It was also submitted on behalf of the AcquiringBody and the State Government that merely because the land owner didnot accept the compensation would not make any difference. It issubmitted that once the award was passed and a further order waspassed to pay the amount of compensation as per the consent award,Fthe same has to be implemented and therefore, the AssistantCommissioner was justified in passing the order dated 21.01.2009 whichwas communicated by Land Acquisition Officer on 05.04.2010 askingthe land owner to receive the compensation, as originally fixed.

2.6 By the impugned judgment and order, the High Court has setGaside the order dated 05.04.2010 by observing that such an order couldnot have been passed after a period of 15 years having once acceptedthe request on behalf of the land owner to cancel the acquisition.Thereafter, the Division Bench of the High Court has further passed anorder that as, neither the compensation is paid nor the possession isHtaken and/or the original land owner continued to be in possession and cultivating the land in question, the acquisition is deemed to have lapsedunder Section 24(2) of the Act, 2013. Consequently, the Division Benchof the High Court has allowed the said writ petition by setting aside theland acquisition award dated 11.06.1993 qua the land in question.

2.7 That, thereafter the Assistant Commissioner and others filedthe review petition before the High Court against the observations madeby the Division Bench that possession has not been taken over. It waspointed out that as such the possession was already taken over by theSardar Sarovar Rehabilitation Agency at the time of passing of the award.However, the High Court has dismissed the review application.

2.8 The impugned judgment and order passed by the High Courtin Special Civil Application as well as the impugned order passed inReview Application are the subject matter of present appeals.

3. Ms. Deepanwita Priyanka, learned counsel appearing for theState of Gujarat has vehemently submitted that as such the issue involvedin the present appeals viz. Whether in the facts and circumstances ofthe case, there shall be deemed lapse of acquisition under Section 24(2)of the Act, 2013 is now not res integra in view of the decision of theConstitution Bench of this Court in the case of Indore DevelopmentAuthority Vs. Manoharlal and Ors. reported in (2020) 8 SCC 129.

3.1 It is submitted that in the present case there was a consentaward passed on 11.06.1993 and thereafter the orders were passed topay 90% and 10% compensation vide orders dated 05.05.1993 and09.02.1994. However, the original land owner did not accept thecompensation though offered and he insisted for withdrawal of theacquisition. It is submitted that therefore, thereafter vide order dated07.03.1995, the order of compensation under the award came to becancelled.

3.2 It is submitted that however as Award under Section 11 of theAct, 1894 continued and amount of compensation was to be paid underthe consent award / award, the Assistant Commissioner was justified inpassing the order dated 21.01.2009, which was communicated to theoriginal writ petitioner by the Special Land Acquisition Officer videcommunication dated 05.04.2010.

3.3 It is submitted that once the award under Section 11 of theAct, 1894 was a consent award, the same could not have been set aside A

B

C

D

EF

G

H

Aby the High Court subsequently on the ground that the compensationunder the Act, 1894 has not been paid for number of years and that theland owner continued to be in possession of the land in question. It issubmitted that as such it was the specific case on behalf of the appellantsbefore the High Court that it was the original land owner who did notaccept the compensation offered and despite consent award, he continuedBto cultivate the land forcibly. It is submitted that even it was the specificcase on behalf of the appellants before the High Court that possessionof the land in question was taken over by drawing panchnama at thetime of passing of the consent award. It is submitted that however theHigh Court has not believed taking over the possession considering theCaffidavit filed by the Assistant Commissioner in which the AssistantCommissioner stated that the land owner continued to cultivate the land.It is submitted that however the High Court has not considered the entireaffidavit on possession in its true perspective. It is submitted that as perthe decision of this Court in the case of Indore Development Authority(Supra) taking over the possession of land / open land by drawing theDpanchnama is one of the mode which is legally permissible. It is submittedthat therefore the High Court has materially erred in setting aside theaward dated 11.06.1993 under Section 11 of the Act, 1894 and alsodeclaring that the acquisition with respect to the land in question is deemedto have lapsed under Section 24(2) of the Act, 2013.E3.4 Ms. Deepanwita Priyanka, learned counsel appearing for theappellants – State of Gujarat and Others has further submitted that evenotherwise in the facts and circumstances of the case, there shall not beany deemed lapse of acquisition under Section 24(2) of the Act, 2013.

It is submitted that in the present case admittedly pursuant to theFconsent award passed under Section 11 of the Act, 1894, the orderswere passed to pay the compensation to the land owner and the landowner was called upon to come to the office of Talati-cum-Mantri,Tarsava to accept the compensation. However, the land owner refusedto accept the compensation as offered. It is submitted that once thereGwas a refusal on the part of the land owner to accept the compensationthough offered, there shall not be any deemed lapse under Section 24(2)of the Act, 2013.

3.5 It is further submitted that as observed and held by this Courtin the case of Indore Development Authority (Supra), only in a caseHwhere there is a lapse on the part of the Acquiring Body in not tendering / paying the compensation, and not taking over the possession, thereshall be deemed lapse under Section 24(2) of the Act, 2013. It is submittedthat in the present case there was no lapse at all on the part of theAcquiring Body and/or State Government in not taking the possessionand in not tendering / paying the compensation. It is submitted that assuch the original land owner refused to accept the compensation whichhas been recorded in the order dated 07.03.1995.

Making above submissions and relying upon decision of theConstitution Bench of this Court in the case of Indore DevelopmentAuthority (Supra), it is prayed to allow the present appeals.

4. Present appeals are vehemently opposed by Shri Nakul Diwan,learned senior counsel appearing on behalf of the contesting respondent– original writ petitioner – original land owner.

4.1 It is prayed by Shri Diwan, learned senior counsel appearingon behalf of the original land owner that before the High Court therewas a challenge to the subsequent communication dated 21.01.2009 bythe Assistant Commissioner communicated vide letter dated 05.04.2010by the learned Special Land Acquisition Officer suo moto cancelling theearlier order dated 07.03.1995. It is submitted that the said issue has notbeen decided by the High Court and therefore, the matter may beremanded to the High Court to consider the legality and validity of theorder dated 21.01.2009 passed by the Assistant Commissioner and thecommunication dated 05.04.2010 by the Special Land Acquisition Officercalling upon the land owner to remain present in the office of Talati-cum-Mantri, Tarsava to receive / accept the compensation.

4.2 It is further submitted by Shri Diwan, learned senior counselappearing on behalf of the original land owner that in the present casethe original land owner withdrew his consent and therefore, refused toaccept the compensation awarded under the consent award and requestedto withdraw the acquisition, which came to be accepted by the AssistantCommissioner vide order dated 07.03.1995 and the award was cancelled.It is submitted that in that view of the matter, thereafter, after a period of15 years, it was not open for the Assistant Commissioner to cancel theorder dated 07.03.1995 that too in exercise of suo moto powers andwithout giving any opportunity of hearing to the original land owner.

4.3 It is further submitted by Shri Diwan, learned senior counselthat even otherwise when the original land owner continued to remain in A

B

C

DE

F

G

H

Aphysical possession and cultivating the land in question even for a periodof 15 years after the consent award passed in the year 1993 and thecompensation was not paid for number of years, in view of Section24(2) of the Act, 2013, there shall be deemed lapse of acquisitionproceedings. It is submitted that therefore the Division Bench of theHigh Court has not committed any error in setting aside the consentBaward on the ground that the same has not been implemented for numberof years and that the land in question is not used by the Acquiring Bodyfor the purpose for which it was acquired and the High Court has rightlydeclared that the acquisition with respect to the land in question is deemedto have lapsed under Section 24(2) of the Act, 2013.

CMaking above submissions, it is prayed to dismiss the presentappeals.5. We have heard learned counsel appearing for respective partiesat length.

D5.1 At the outset it is required to be noted that the original awarddated 11.06.1993 passed under Section 11 of the Act, 1894 was a consentaward with respect to the land owned by the present respondent – originalland owner as well as other lands acquired for re-settlement of NarmadaProject oustees. It is also to be noted that thereafter and pursuant to theconsent award, the amount of compensation (90% + 10%) was in factEoffered to the land owner and he was called upon to accept thecompensation offered, but the respondent – original land owner refusedto accept the compensation offered and insisted to withdraw theacquisition. It was the case on behalf of the appellants before the HighCourt that the possession of the land in question was taken by drawingspot panchnama at the time of passing of the consent award. However,Fthe High Court has disbelieved the same by observing that even as perthe affidavit of the Assistant Commissioner, the land owner continued tobe in possession of the land in question and continued to cultivate thesame. However, the affidavit which is reproduced in the impugnedjudgment and order is required to be considered in its true perspectiveGand in its entirety. In the affidavit dated 22.03.2013 filed by one ShriBhagora Kamlasingh Jokhanbhai on behalf of the AssistantCommissioner, it was stated as under:

“6. I state that however the Petitioner refused to handoverthe land and to take compensation along with other similarlyHsituated farmers whose land were also acquired as per the Award dated 11.06.1993. The Petitioner along with otherpersons made an application dated 27.07.1993 forcancellation of the Award.

7. I state that by the order dated 07.03.1995, pursuant to thereluctance of the Petitioner to hand over the possession andto take the compensation on so called grounds of familydisputes, the order of payment of compensation was cancelled,but at the same time, the order of acquisition was not cancelled.It appears that the Petitioner has successfully avoided tohandover the possession of the land acquired under theprovisions of Act though the land is vested in the RespondentNo.3"

14. With regard to the averments made in para No.3.2 of thepetition, I deny the same inasmuch as Petitioner refused totake the compensation and therefore, last notice was given tothe Petitioner on 05.04.2010 and the Petitioner refused toaccept the compensation, the same is now, deposited with theGovernment Treasury as stated hereinabove. The Petitioneris, therefore, require to handover the possession of land tothe Respondent No.3 so that the same can be allotted forrehabilitation of the affected persons of Narmada Project.”

5.2 Thus, from the aforesaid it can be seen that it was the specificcase on behalf of the appellants and the Assistant Commissioner thatthe land owner refused to hand over the land and refused to accept thecompensation alongwith other similarly situated farmers whose landswere also acquired as per the consent award dated 11.06.1993. It canalso be seen that it was the case on behalf of the appellants that by orderdated 07.03.1995, pursuant to the reluctance of the land owner to handover the possession (physical possession) and to take the compensationon so-called ground of family disputes, the order of payment ofcompensation was cancelled. But at the same time, the order of acquisitionwas not cancelled and that the land owner successfully avoided to handover the possession of the land acquired under the provisions of the Act,1894 though the land vested in the Sardar Sarovar Rehabilitation Agency.

5.3 Considering the aforesaid factual aspects it is required to beconsidered whether there shall be deemed lapse of acquisition underSection 24(2) of the Act, 2013 as observed and held by the High Court ?

ABC

D

E

F

G

H

A

B

C

D

E

F

G

H

In the case of Indore Development Authority (Supra), it isobserved and held as under:

“366. In view of the aforesaid discussion, we answer thequestions as under:

366.1. Under the provisions of Section 24(1)(a) in case theaward is not made as on 1-1-2014, the date of commencement ofthe 2013 Act, there is no lapse of proceedings. Compensation hasto be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within the windowperiod of five years excluding the period covered by an interimorder of the court, then proceedings shall continue as providedunder Section 24(1)(b) of the 2013 Act under the 1894 Act as if ithas not been repealed.

366.3. The word “or” used in Section 24(2) between possessionand compensation has to be read as “nor” or as “and”. The deemedlapse of land acquisition proceedings under Section 24(2) of the2013 Act takes place where due to inaction of authorities for fiveyears or more prior to commencement of the said Act, thepossession of land has not been taken nor compensation has beenpaid. In other words, in case possession has been taken,compensation has not been paid then there is no lapse. Similarly,if compensation has been paid, possession has not been takenthen there is no lapse.

366.4. The expression “paid” in the main part of Section 24(2)of the 2013 Act does not include a deposit of compensation incourt. The consequence of non-deposit is provided in the provisoto Section 24(2) in case it has not been deposited with respect tomajority of landholdings then all beneficiaries (landowners) as onthe date of notification for land acquisition under Section 4 of the1894 Act shall be entitled to compensation in accordance with theprovisions of the 2013 Act. In case the obligation under Section31 of the Land Acquisition Act, 1894 has not been fulfilled, interestunder Section 34 of the said Act can be granted. Non-deposit ofcompensation (in court) does not result in the lapse of landacquisition proceedings. In case of non-deposit with respect tothe majority of holdings for five years or more, compensation underthe 2013 Act has to be paid to the “landowners” as on the date ofnotification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensationas provided under Section 31(1) of the 1894 Act, it is not open tohim to claim that acquisition has lapsed under Section 24(2) dueto non-payment or non-deposit of compensation in court. Theobligation to pay is complete by tendering the amount under Section31(1). The landowners who had refused to accept compensationor who sought reference for higher compensation, cannot claimthat the acquisition proceedings had lapsed under Section 24(2)of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to betreated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act andas contemplated under Section 24(2) is by drawing of inquestreport/memorandum. Once award has been passed on takingpossession under Section 16 of the 1894 Act, the land vests inState there is no divesting provided under Section 24(2) of the2013 Act, as once possession has been taken there is no lapseunder Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemedlapse of proceedings are applicable in case authorities have faileddue to their inaction to take possession and pay compensation forfive years or more before the 2013 Act came into force, in aproceeding for land acquisition pending with the authority concernedas on 1-1-2014. The period of subsistence of interim orders passedby court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to newcause of action to question the legality of concluded proceedingsof land acquisition. Section 24 applies to a proceeding pending onthe date of enforcement of the 2013 Act i.e. 1-1-2014. It does notrevive stale and time-barred claims and does not reopen concludedproceedings nor allow landowners to question the legality of modeof taking possession to reopen proceedings or mode of deposit ofcompensation in the treasury instead of court to invalidateacquisition.”

5.4 Therefore, as per the law laid down by this Court in the caseof Indore Development Authority (Supra), taking over the possessionof the land by drawing panchnama is held to be legally permissible and A

B

C

D

E

F

G

H

Acan be said to be taking over the possession legally. In the present case,there was a consent award under Section 11 of the Act, 1894. Thepossession was taken by drawing the panchnama at the time of passingof the consent award dated 11.06.1993. However, thereafter, becauseof the reluctance on the part of the land owner, he did not actually andphysically hand over the possession and he continued to cultivate theBacquired land which actually vested in the State Government / AcquiringBody / Sardar Sarovar Rehabilitation Agency.

6. Even otherwise, in the facts and circumstances of the case,there shall not be any deemed lapse under Section 24(2) of the Act,2013 on the ground that the amount of compensation was not paid. It isCan admitted position that after the consent award, under Section 11 ofthe Act, 1894, was passed on 11.06.1993, the amount of compensationwas in fact offered to the land owner alongwith other land owners andthe respondent – original land owner was called upon to remain presentin the office of Talati-cum-Mantri to receive / accept the compensation.DHowever, the land owner refused to accept the compensation thoughoffered. In that view of the matter, once the compensation was offered,which as such was offered pursuant to the consent award under Section11 of the Act, 1894, but the land owner refused to accept the same, howthere can be any deemed lapse of acquisition under Section 24(2) of theAct, 2013?E

6.1 As per the law laid down by this Court in the case of IndoreDevelopment Authority (Supra) and even otherwise considering theobject of providing the deemed lapse of acquisition under Section 24(2)of the Act, 2013 seems to be that if there is any lapse on the part of theAcquiring Body / agency in not taking the possession and not paying theFcompensation there shall be deemed lapse of acquisition. Therefore, fora deemed lapse under Section 24(2) of the Act, 2013, there shall be alapse on the part of the Acquiring Body / beneficiary in not taking thepossession and not paying the compensation. In the present case, boththe conditions are not satisfied. In fact, the amount of compensationGunder the consent award under Section 11 of the Act, 1894 was offeredand the land owner was called upon to accept the compensation however,the land owner refused to accept the same. Even the possession wastaken by drawing the panchnama at the time of declaration of the consentaward under Section 11 of the Act, 1894. However, thereafter, becauseof the reluctance on the part of the original land owner, the physical andH

actual possession of the land could not be taken by the Acquiring Body.From the aforesaid it can be seen that there was no lapse at all on thepart of the Authority neither in offering / paying the compensation nor innot taking the possession. Therefore, the Division Bench of the HighCourt has materially erred in declaring that the acquisition with respectto the land in question is deemed to have lapsed under Section 24(2) ofthe Act, 2013.

7. Now, so far as the impugned judgment and order passed by theHigh Court in setting aside the award dated 11.06.1993 on the groundthat the award has not been implemented for number of years and theamount of compensation has not been paid for number of years and theland is not utilized / used for number of years is concerned, at the outsetit is required to be noted that it was the original owner who refused toaccept the compensation offered in the year 1993. Therefore, an orderdated 07.05.1993 was passed cancelling the order of offering thecompensation. However, the acquisition and the consent award, bothcontinued. However, thereafter, the land owner continued to makerepresentations to release the land from acquisition. Therefore, it wasthe original land owner who did not accept the compensation offeredand continued to make representations to release the land fromacquisition. In these circumstances, the Division Bench of High Courthas committed a very serious error in setting aside the consent award onthe aforesaid ground. The consent award under Section 11 of the Act,1894 ought not to have been set aside in the manner in which it is setaside. The High Court has not at all properly appreciated and consideredthe conduct on the part of the land owner. At this stage it is required tobe noted that at many places the High Court has observed in paragraph11 that “the petitioner, alongwith other land owners of the area, agreedto acquisition of his land on a fixed rate of compensation”. Even theHigh Court has also taken note of the fact that the amount ofcompensation was offered but the original land owner refused to acceptthe same. Once the land owner refuses to accept the amount ofcompensation offered by the Acquiring Body, thereafter it will not beopen for the original land owner to pray for lapse of acquisition on theground that the compensation has not been paid. As observedhereinabove, there shall be deemed lapse of acquisition under Section24(2) of the Act, 2013 if there is a lapse on the part of the AcquiringBody / beneficiary in not taking the possession and the compensation isnot paid. Even otherwise as observed and held by this Court in the case AB

C

D

E

F

G

H

Aof Indore Development Authority (Supra), for the deemed lapseunder Section 24(2) of the Act, 2013, twin conditions of not taking thepossession and not paying the compensation, both are required to besatisfied. Therefore, if one of the conditions is not satisfied, there shallnot be any deemed lapse.

B8. Now, so far as the prayer on behalf of the land owner to remandthe matter to the High Court to consider the legality and validity of thesubsequent order dated 21.01.2009 cancelling the earlier order dated07.03.1995 is concerned, at the outset it is required to be noted that theorder dated 21.01.2009 was as such not the subject matter of the writpetition before the High Court. No prayer was made to set aside theCorder dated 21.01.2009 passed by the Assistant Commissioner, SardarSarovar Rehabilitation Agency. What was challenged before the HighCourt was award under Section 11 of the Act, 1894 and the subsequentcommunication dated 05.04.2010 issued by the Special Land AcquisitionOfficer calling upon the land owner to remain present in the office ofDTalati cum Mantri to accept the compensation and to release the land.Be that as it may, assuming that the order dated 21.01.2009 was bad inlaw and the earlier order dated 07.03.1995 is restored, in that case also,it would not have a bearing on the aspect of deemed lapse under Section24(2) of the Act, 2013. The fact remains that though the amount ofcompensation was offered and the original land owner was called uponEto accept the compensation as per the consent award, he refused toaccept the same.

9. In view of the above and for the reasons stated above, presentappeals succeed. Impugned judgment and order dated 31.08.2015 passedby the High Court of Gujarat in Special Civil Application No.9740/2012Fand the order dated 01.04.2016 passed in review application being Misc.Civil Application (For Review) No.3036 of 2015 in Special CivilApplication No.9740/2012 are hereby quashed and set aside. In the factsand circumstances of the case, there shall be no order as to costs.

GNidhi Jain

(Assisted by : Abhishek Pratap Singh and Rakhi, LCRAs)

H