State barred from setting aside acquisition upon its subsequent failure in carrying out compliance

State barred from setting aside acquisition upon its subsequent failure in carrying out compliance with Section 11A 1894 LA Act

In the present matter was in relation to issue acquisition of land under Section 17 of the Land Acquisition Act, 1894 (Act). State had initiated the acquisition proceedings in the year 1981 by issuing requisite Notifications by invoking the urgency provisions as contained in Section 17. Section 5A of the Act was simultaneously made inapplicable by resorting to Section 17(4). Possession of the land was taken by the State after almost five months of the notification and the land was subsequently declared to be a ‘Protected Forest’ under Section 29 of the Indian Forest Act, 1927 in accordance to relevant Notification issued for the purpose.

Thereafter the State once again initiated the proceedings by issuing another Section 4 Notification in the year 1995 followed by Notification in the year 1996 issued under the urgency provisions of Section 17 whereby Section 5A was yet again dispensed with.

The proceedings became subject to challenge. High Court in the writ petition challenging the proceedings found that since the same land for which acquisition proceedings had initially commenced invoking the emergency provisions was re-acquired once again for an unspecified public purpose and this was held to be an act in clear non-application of mind by the State. The Petition was accordingly allowed and it attained finality subsequently. In the said petition State had made a submission that the fresh proceedings were initiated as the previous one had lapsed due to the delay in publishing the Award. Later in the year 2003 State took steps to annul the second proceedings by attempting to rely on Section 48 with the objective to withdraw from the acquisition. Subsequently, a writ petition was filed seeking the issuance of a direction against State to release the land in question and hand over its possession to the Appellant herein. Another writ was filed by the forest department challenging the action of State in endeavouring to withdraw from the acquisition proceedings and a restrain order was sought against Authorities from dispossessing the Forest Department from the land. A Public Interest Litigation also came to be filed with the intent and purpose of protecting and preserving the forest. While these writ petitions were pending, pursuant to one internal communication an Award came to be published in continuity of the 1981 acquisition proceedings.

A compensation cheque was sent to the Appellant by the State which however was drawn in the wrong name. On being asked to return the cheque so that a new one could be issued, the State was asked to not to take any further action as the matter was sub-judice. It was also the contention of Appellant that upon its refusal to accept the compensation, the State should have complied with Section 31 of the Act by depositing the amount with the Court, which it did not do.

It was held that clearly the validity of the 2005 revival and the 2006 Award was immaterial, as the 1981 acquisition in itself cannot be allowed to stand for its abject failure to comply with the requirements of Section 11A of the Act. The Appellant did not directly challenge the 1981 proceedings. To penalize the Appellant for a viewpoint that State clearly adhered to as well, till the time of initiating the 2005 revival of the acquisition was held to be patently unfair.

The 1981 acquisition stood superseded upon the issuance of the fresh Notifications in 1996. Old notifications gets superseded and obliterated by subsequent ones, as the subsequent acquisition proceeding manifest and indicate the intention of the State to abandon the preceding one. There was no reason for the state to revive the lapsed acquisition.

It was accordingly held that actions of the State denied the Appellant just and fair compensation as envisaged and postulated in the Act. The 1981 acquisition was accordingly set aside for non-compliance with the provisions of Section 11A of the Act. State is precluded from endeavouring to have the acquisition set aside for its own failure to carry out compliance with Section 11A, and that once possession has been taken by the State under Section 17 of the Act, it is no longer open to the State to relinquish or return the land to the legal entity who had been dispossessed from it.

A reference was made to the provisions of Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act). It was observed that the first perusal of the provision gives an unexplained inconsistency between Section 24(1)(a), which allows an acquisition to stand despite a failure to pass an award while only requiring the compensation to be determined under the 2013 Act, and Section 24(2), which deems the acquisition to have lapsed for a failure to pay compensation or take physical possession of the land where an award has been passed over five years prior to the commencement of the 2013 Act. Apparently the State was in a better position in situations where it was negligent in taking any action, towards publication of an award than in situations where it has taken partial steps towards the completion of the acquisition proceedings. As further observed, the above differentiation was considered as a possibility because Section 24(2) gives the State the option to initiate fresh proceedings, as opposed to placing an obligation upon it to do so. The erstwhile landowner is given the benefit of enhanced compensation under the 2013 Act, while restraining the State from taking advantage of its own wrong. Section 24(2), on the other hand, seeks to allow the land to be returned to the landowner party in situations where there is genuinely no need for it, thus benefiting both the dispossessed landowner and the State. It was observed that there still remains a clash in view but the same was not the issue to be considered.

Accordingly it was held that acquisition proceedings with regard to the subject lands stood lapsed. State was directed to initiate fresh acquisition proceedings or take any other action available to it in accordance with law

[M/s. Soorajmull Nagarmull vs. State of Bihar & Ors.]

SC, 17.08.2015

Civil Appeal Nos. 10394-10396 OF 2011