Effect of stay on taking possession of land by Court on Section 24 RFCTLARR Act 2013 #indianlaws

An interesting question arose before the Rajasthan High Court as to the impact of grant of stay on taking the possession of the land by the Court vis a vis Section 24 of the RFCTLARR 2013.

The present petitions were filed in the year 2005 challenging the land acquisition proceedings initiated under year 2004 notification. In some of the writ petitions, while issuing post admission notices to the Respondents, there was an interim order restraining the State from taking over physical possession over the land under acquisition. The State Government, however, did not choose to take over possession of the land from any of the Petitioners, the land owners of the land subjected to acquisition.

During pendency of the petition, the Land Acquisition Officer passed the award as per Section 11 of the Act of 1894 in the year 2006 and the same was approved by the Government in the year 2007. The amount of compensation was offered to the Petitioners, but since they refused to take the same, the said amount was deposited in the concerned court of Civil Judge.

An application was preferred with assertion that in view of the provisions of sub-section (2) of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act), the land acquisition proceedings initiated under the Act of 1894 have been lapsed and no further action with regard to acquisition can now be taken by the Respondents and accordingly a declaration was sought to the effect that the State now cannot proceed against the petitioners in pursuant to the proceedings initiated under the Act of 1894.

The question before the Court thus was whether the protection as given under sub-section(2) of Section 24 of the Act of 2013 is available to the Petitioners who are having possession over the land in question because of an interim order passed by this Court and further that the awarded compensation has already been deposited before the court competent court as per provisions of Section 31 of the Act of 1894.

The Court held that the requirement for operating of the provision of sub-section(2) of Section 24 is very specific and clear and i.e. passing of the award five years earlier from the date of commencement of the Act of 2013 and further non-taking of physical possession of the land under acquisition, or non-payment of the compensation awarded. If the legislature had any intent to exclude the application of sub-section(2) of Section 24, then that should have been mentioned in the clear terms, as that is provided under Section 11-A of the Act of 1894. The Section 11-A of the Act of 1894 provides a definite period for making an award and the explanation given below the proviso to Section 11-A states that in computing the period prescribed for making an award shall exclude the period during which any action or proceedings to be taken in pursuance of the publication of the declaration made under Section 6 of the Act of 1894. No such exclusion is given under Section 24 of the Act of 2013.

The Court further went on to observe that the draft rules for the Act of 2013 were put to in public domain for discussions on being notified on 14.10.2013. The Rule 23 of the working draft was relating to retrospective application of Section 24 and as per proposed sub-rule (3), where possession of the land under acquisition was not taken due to the acquisition process challenged in a Court of law, then the period spent under litigation was to be counted for the purpose of determining the period of five years, necessary to have operation of sub-section(2). The Rules were notified in gazette on 31.12.2013 and the said sub-rule(3) of the working draft was not included in the gazette notification, which clearly indicated that the Rule making authority was also not interested to take into count the period that spent under litigation.

In our view the judgement of the Rajasthan High Court requires re-consideration. No doubt the intent of the legislature is to protect the interest of the persons whose land was acquired, however, it could not have been the intention of the legislature to penalise the requiring body for not taking possession on account of order of injunction by the Court. Further the rules relied by the High Court were the first draft rules, which under went change in the rules dated 20th Feburary, 2014, wherein there is no mention of rules pertaning to possession of land.

In the instant matter, the State did not on its own choose to pay the awarded compensation. The interim order was passed by this Court prior to passing of the award. The Collector had passed the award during pendency of the litigation and that was accepted by the State Government in the year 2007, but no effort was made to pay the awarded compensation for a period of more than five years and the compensation was deposited with the Civil Court after filing of the present application. The non-adherence of the mode given under Section 31 of the Act of 1894 for a period of more than six years clearly indicated that no compensation was paid to the land owners for a period of more than five years from the date of award and accordingly, all the eventualities needed for application of sub-section(2) of Section 24 existed in the present matter.

Therefore, as it was held by Court, sub-section(2) of Section 24 of the Act of 1894 held to be applicable in the instant matters and consequently the proceedings initiated under the Act of 1894 were to be treated lapsed.

[Vidhya Sagar vs. State of Rajasthan & Ors.]
Rajasthan HC, 19.05.2014