The Supreme Court in Shiv Raj’s Judgement held that in calculating the period of five years the period spent in litigation shall be included leading to lapse of acquisiton. Though the judgement is not categorical however it appears that limitation of five years would not stop even if an injuction was the reason for not taking possession and/or payment of compensation.
With the coming into effect of “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013” from January 2014, the Land Acquisition Act, 1894 has become history though subject to technical exceptions for the purposes of applicability for issues pending or sub-judice prior to year 2014. The Courts however, proactively, to ensure there remains no gap in interpretation of essential clauses of the repealed as well as repealing act, fairly gave initial interpretations to weed out any probable ambiguity.
Certainly, there would be teething difficulty in interpreting the repealing or the new Act so far as initial years are concerned or atleast till the expiry of first five years of the date since when new Act became effective.
The judgments given by the Supreme Court in the matters namely Pune Municipal Corporation & Anr vs. Harakchand Misirimal Solanki & Ors., dated 24.1.2014 and Union of India vs. Shiv Raj & Ors dated 7.5.2014 would surely be timeless ratios in the time to come.
The Pune Municipal Corporation Case (or the PMC Case) raised the issue as to Whether in view of Section 24(2) of 2013 Act, the land acquisition proceedings initiated under the Land Acquisition Act, 1894 lapsed by virtue thereof more so because the award under Section 11 of the 1894 Act was made more than five years prior to the commencement of 2013 Act and neither any compensation was paid to the owners nor the amount of compensation was deposited in the Court by the Special Land Acquisition Officer.
The Court clarified that Section 24(1), containing a non obstante clause, has been given an overriding effect to over all other provisions of 2013 Act. It provides that where land acquisition proceedings have been initiated under the 1894 Act but no award under Section 11 of the 1894 Act is passed, then the provisions of 2013 Act would to determine amount of compensation to be awarded. However, where the position is otherwise, then such proceedings would continue under the 1894 Act as if the Act has not been repealed. Similarly, Section 24(2) has been given an overriding effect over Section 24(1) providing that in acquisition proceedings initiated under 1894 Act, where an award has been made five years or more prior to the commencement of the 2013 Act and either of the two contingencies namely, (i) physical possession of the land has not been taken or (ii) the compensation has not been paid, such acquisition proceedings would be deemed to have lapsed. Further, on the lapse of such proceedings, if the appropriate government still chooses to acquire the land which was the subject matter of acquisition under the 1894 Act then it has to initiate the proceedings afresh under the 2013 Act.
Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the Court. The provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the Court is further fortified by the provisions contained in Sections 32, 33 and 34. The Court clarified that for the purposes of Section 24(2) of the 2013 Act, the compensation shall be regarded as “paid” if the compensation has been offered to the person interested and such compensation has been deposited in the Court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. Thus, the compensation may be said to have been “paid” within the meaning of Section 24(2) when the Collector (or Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in Court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.
Section 24(1) thus has a retrospective application vis-a-vis proceedings under the 1894 Act and the PMC judgment stamps its retrospective application. However, the question now arises, is on whether there would be any legal embargo. The catch line about the above judgment was that it dealt with the issue which was pending for over the prescribed five year period.
The later judgment i.e. the Shiv Raj Case dealt with the issue of disposal of objections under Section 5-A of the Land Acquisition Act, 1894 and application of the new 2013 Act. On the issue of applicability of newly enacted 2013 Act, the Court while referring the provision of Section 24 of the 2013 Act also took note of the circular dated 14.3.2014 issued by Government of India (Ministry of Urban Development, Delhi Division) which clarified the interpretation of five years period on the issue of applicability of new Act and in view of the facts of the present case the 2013 Act was held to be not applicable. This Judgement held that in calculating the period of five years the period spent in litigation shall be included which necessarily means if either the possession of the land has not been taken or compensation has not been paid on account of lititation between the parties, the mischief of Section 24 would be attracted leading to lapse of acquisiton. Though the judgement is not categorical however it appears that limitation of five years would not stop even if an injuction was the reason for not taking possession and/or payment of compensation.
Both the above judgment, can be said to be initial judicial attempt bring into fore such provisions which were either part of draft proposals or part of subordinate legislation, designed to curb any probably ambiguity.
There however still remain various critical issues to be answered. What in an eventuality where the dispute had been a subject matter of injunction much over five years and the same gets resolved now? There surely would be more grave and grey areas which certainly can be seen when the 2013 Act assumes practical application position.