TaxTMI 
TaxTMI 
2021 (11) TMI 1206
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....ll apply even after the repeal of the 1894 Act, or the twelve-month period specified in Section 25 of the 2013 Act will apply for the awards made under Clause (a) of Section 24(1) of the 2013 Act? Subsequent to the decision on the aforesaid question of law, we shall consider the second aspect - whether the award dated 30th October 2014 is within the permissible time-limit or whether the acquisition proceedings have lapsed? To answer this question, we shall also examine whether the award claimed to have been passed on 30th October 2014 is backdated and whether the date has been changed by manipulating the award? For convenience and clarity, we would deal with the two issues separately. 3. In order to answer the legal question, some elemental facts are required to be noted. The State of Maharashtra, on 16th June 2011, had issued a notification Under Section 4 4. Publication of preliminary notification and power of officers thereupon - (1) Whenever it appears to the appropriate Government the land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily new....
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...., Sub-section (2): Provided that no declaration in respect of any particular land covered by a notification Under Section 4, Sub-section (1), - (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or (ii) Published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. Explanation 1 - In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued Under Section 4, Sub-section (1), is stayed by an order of a Court shall be excluded. Explanation 2 - Where the compensation to be awarded for su....
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....essitates fresh acquisition proceedings thereby causing great financial burden to the acquisition authority, directions have been issued to the State of Maharashtra to conduct an inquiry against the Collector, Bhandara and the Land Acquisition Officer, Bhandara. Consideration and decision on interpretation of Section 24(1)(a) of the 2013 Act 5. Section 11A of the 1894 Act reads: 11A. Period within which an award shall be made (1) The Collector shall make an award Under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded. Simply put, Section 11A requires that an award Under Section 11....
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....d of twelve months if in its opinion, circumstances exist justifying the same: Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. xx xx xx 114. Repeal and saving. - (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed. (2) Save as otherwise provided in this Act the repeal Under Sub-section (1) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals." 7. Before we interpret the above provisions, it would be appropriate to refer to Section 6 of the General Clauses Act, 1897 which deals with the effect of repeal of any statute or Regulation and reads: 6. Effect of repeal -- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactm....
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....eneral Clauses Act. However, the application of Section 6 of the General Clauses Act is subject to "save as otherwise provided" by the 2013 Act. In other words, when it is commanded or imperative by the provisions of the 2013 Act, Section 6 of the General Clauses Act is not to be given legal effect. 9. Sub-section (1) to Section 24 of the 2013 Act is a non-obstante clause. It confers the provision with an overriding status over other provisions. Accordingly, in terms of Sections 24(1) of the 2013 Act, Section 114 of the 2013 Act as well as Section 6 of the General Clauses Act will not apply to the extent hindered by Section 24(1) of the 2013 Act. The reason is that Section 114 of the 2013 Act, while accepting the applicability of Section 6 of the General Clauses Act, makes its application subject to "save as otherwise provided" in the 2013 Act. Further, Section 6 of the General Clauses Act itself states that the general savings will not apply when the legislative intent is contrary. 10. Section 24(1) deals with two specific situations where the land acquisition proceedings were initiated before the repeal of the 1894 Act, namely: (i) where an award has been made, and (ii) where a....
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....e need not, for the purpose of the present case, elucidate the ratio of the aforementioned judgment on interpretation of Section 24(2) of the 2013 Act, but it is apposite to notice that the Constitution Bench has emphasised that the 2013 Act provides for higher compensation along with provisions for rehabilitation, and that this intended benefit, wherever applicable, should not be taken away. At the same time, on the aspect of legal interpretation, it is observed that full effect has to be given to the provisions contained in Section 24 as it is not for the court to legislate. The courts can and do, in appropriate cases, clear ambiguity in legislations. 13. Dealing with the interplay of vested rights and retrospective application of statutes, Indore Development Authority (supra) refers to several decisions to draw a distinction between 'rights' and 'procedure', to observe that the question of extent of retrospectivity would also depend upon the degree of unfairness it causes to the parties. Thus, if the limitation period is shortened but the claimant has time to sue before the expiry of the shortened period, then notwithstanding that he is likely to be statutorily ....
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....ve argument that the legislator has not prescribed any period for making of an award Under Section 24(1)(a) of the 2013 Act. Absence of precise words or express declaration would not inhibit us from interpreting and exercising the right choice, keeping in view the language as also the object and purpose of Clause (a) to Section 24(1) of the 2013 Act. In other words, we have to give effect and meaning to the underlying intention of the Parliament in the words "all the provisions relating to determination of compensation" under the 2013 Act. 16. We begin by examining the phrasing of Clause (a) to Section 24(1) of the 2013 Act. We would prefer to read the words "all the provisions relating to determination of compensation" in Section 24(1)(a) as including the period of limitation specified in Section 25 of the 2013 Act. To elaborate, the word 'all' and the expression "relating to" used in Section 25 are required to be given a wide meaning to ensnare the legislative intent. The expressions "relating to" or "in relation to" are words of comprehensiveness which may have a direct as well as indirect significance depending on the context. The State Wakf Board, Madras represented b....
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....to refer, to bring into association with or connection with". See judgment of Mitter, J. (paragraph 308) in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior etc. v. Union of India and Anr., (1971) 1 SCC 85. Therefore, the expression 'relating to' when used in legislation has to be construed to give effect to the legislative intent when required and necessary by giving an expansive and wider meaning. Given this trend in interpretation, the words "all the provisions of this Act relating to the determination of compensation" must not be imputed a restricted understanding of the word 'relating' only to the substantial provisions on calculation of compensation, that is, Sections 26 to 30 of the 2013 Act. Rather, the expression should be given an expansive meaning so as to include the provision on limitation period for calculation of compensation, that is, Section 25 of the 2013 Act. 17. Law of limitation is generally regarded as procedural as its object is not to create any right but prescribe periods within which legal proceedings should be instituted for enforcement of rights or adjudication orders should be passed. Statutes of limitation, t....
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....ect is of importance when we examine the second issue and would be adverted to later. Thus, it clearly delineates that until notification of the multiplier is issued by the "appropriate government" for rural areas, compensation in terms of Sub-section (2) to Section 26 cannot be determined. When a multiplier of more than 1 applies, the compensation payable Under Section 26 of the 2013 Act would be higher than the market value of the land. Section 30(1) of the 2013 Act adumbrates that the Collector having determined the total compensation shall, to arrive at the final award, impose 'solatium' of an amount equivalent to 100% of the compensation amount. As per Section 30(3), the landowners in addition to the market value of the land are entitled to an amount calculated at the rate of twelve percent per annum commencing from the date of 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". For the purposes of the present dispute, we are not interpreting provisions of Section 30(3) of the 20....
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....s required. We are conscious that Section 25 refers to publication of a notification Under Section 19 as the starting point of limitation. In the context of Clause (a) to Section 24(1) of the 2013 Act there would be no notification Under Section 19, but declaration Under Section 6 of the 1894 Act. When the declarations Under Section 6 are valid as on 1st January 2014, it is necessary to give effect to the legislative intention and reckon the starting point. In the context of Section 24(1)(a) of the 2013 Act, declarations Under Section 6 of the 1894 Act are no different and serve the same purpose as the declarations Under Section 19 of the 2013 Act. Consequently, we hold that in cases covered by Clause (a) to Section 24(1) of the 2013 Act, the limitation period for passing/making of an award Under Section 25 of the 2013 Act would commence from 1st January 2014, that is, the date when the 2013 Act came into force. Awards passed under Clause (a) to Section 24(1) would be valid if made within twelve months from 1st January 2014. This dictum is subject to the caveat stated in paragraph 16 (supra) that a declaration which has lapsed in terms of Section 11A of the 1894 Act before or on 31....
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....as been passed within the period stipulated Under Section 25 of the 2013 Act or the acquisition proceedings have lapsed? 23. As per the arguments put forth by the Appellants, the award was pronounced on 30th October 2014, which is within the period of twelve months prescribed by Section 25 of the 2013 Act coming into force on 1st January 2014. The landowners, however, dispute the date of publication. The impugned judgment holds that the award, though dated 30th October 2014, has been backdated. However, before we examine this controversy, it would be appropriate to first notice the effect of the stay order passed by the Aurangabad Bench of the Bombay High Court in Writ Petition No. 4274 of 2014. To understand the effect of the said stay order, we must again advert to Section 26(2) of the 2013 Act. This Section postulates that the market value calculated as per Sub-section (1) shall be multiplied by a factor specified in the First Schedule. The First Schedule enumerates different components which constitute the minimum compensation package to be given to those whose land is acquired and to the tenants referred to in Clause (c) of Section 3. Columns 2 and 3 of the First Schedule man....
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....o the words "stay of action or proceedings" used in the proviso to Section 11A of the 1894 Act to mean any type of order passed by a court, which in one way or the other prohibits or prevents the authorities from passing an award. This period of inhibition is excluded while computing the period for passing of the award by an authority, Under Section 11A of the 1894 Act. Further, the stay granted in the present case would be applicable to others also who had not obtained stay in that behalf. 26. In Indore Development Authority (supra), with reference to Section 24(2) of the 2013 Act, the Constitution Bench has noticed that there is no similar provision for exclusion of time, though there is express provision for exclusion of time Under Sections 19 and 69 of the 2013 Act. Nevertheless, the Constitution Bench, while discussing issue No. 5 - 'the effect of interim order of a court granting stay or injunction by which the authorities are unable to take possession or make payment and its exclusion', has observed that omission of such exclusion and specific stipulation in Sections 19 and 69 of the 2013 Act does not indicate any special legislative intent. The provision for exclus....
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.... maxims encapsulated below: * "lex non cogit ad impossibilia" - the law does not expect the performance of the impossible; * "actus curiae neminem gravabi" - an act of the court shall prejudice no man; * "nemo tenetur ad impossibilia" - no one is bound to do an impossibility; and * "impotentia excusat legem" - where a person is disabled from performing a duty created by law, without any default in him, and has no remedy over, there the law will in general excuse him. 28. It was further concluded, based on the maxim "commodum ex-injuria sua nemo habere debet" (meaning: convenience cannot accrue to a party from his own wrong), that the legislation did not intend for relentless litigants to derive the benefit of enhanced compensation under the 2013 Act, but rather to deliver advantage to those who accepted the compensation and handed over possession. 29. The aforesaid reasoning will be applicable to Section 25 of the 2013 Act as well. If interpreted otherwise, it would bring inconsistencies and would cause injustice. 30. The foregoing discussion makes it abundantly clear that inasmuch as the High Court had, on 26th May 2014, stayed the operation of the notification dated 19....
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....anning Department. This entry shows that indeed a communication was issued by the Town Planning Department to the Special Land Acquisition Officer on 11.11.2014. The Respondent No. 3 has the audacity to state that they have not received any such communication from the Town Planning Department and the reference to the said communication in the award is a clerical mistake. From outward entry No. 32, we find that this communication was issued by the Town Planning Department to the Special Land Acquisition Officer and from the reference of this communication in the award, it is apparent that the special land acquisition officer had received the communication dated 11.11.2014 before passing the award and, hence a reference to that communication is made in the award. This clearly shows that a show is made by the Respondent Nos. 2 and 3 that the award was passed on 30.10.2014 when the award was passed much later. Though the enquiry in the matter Under Section 9 of the Act was conducted by the Deputy Collector, the District Collector has signed the award. It is clear from a perusal of the award, the documents annexed to the petition and the rejoinder that the award is falsely stated to hav....
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....r. Even assuming that the proceedings were in the office of the Commissioner, if they were received before 30.10.2014, as the award was purportedly passed on that date, the roznama could have been maintained after the proceedings were received from the office of the Commissioner however, the roznama ends on 06.05.2014. We do not know whether all the subsequent pages of the roznama have been destroyed with a view to conceal as to what happened in the land acquisition proceedings after 06.05.2014. 32. The stand of the Appellant(s) before the High Court and before us is that the High Court had erroneously quashed the award on the basis of prima facie findings that for the same communication of the Town Planning Department, different dates are mentioned i.e., 26th September 2014 and 11th November 2014. Whereas, the High Court failed to consider the detailed affidavit filed by the State of Maharashtra dated 5th July 2017 in W.P. No. 6884/2015, clarifying that the date at page Nos. 32 and 37 of the award was wrongly written as 11th November 2014 instead of 26th September 2014. The High Court had also noted that the Commissioner gave approval to the award on 20th November 2014, but it fa....
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....unt of the mandate of Section 25 of the 2013 Act, the same needs to be negatived for more than one reason. First, no factual foundation has been set out by the landowners including to assert that the stated award was not made even till 20th March 2015 nor was the High Court called upon to examine that fact. Secondly, the landowners "themselves" have stated (admitted) that the Commissioner had given permission/approval to the draft award on 20th November 2014 As stated in paragraph B (ii) (Page 2) of the Written Arguments filed on behalf of Respondent/claimants, dated 02.09.2021 in reference to the findings of fact noted by the High Court in the impugned judgment at the end of paragraph 7 thereof, relying on entry No. 1081 in the Inward Register of the Land Acquisition Officer. Further, the High Court had not held that the award was made or pronounced beyond the period specified Under Section 25 of the 2013 Act. 36. Ordinarily, in terms of Section 25, the award ought to have been published up to 31st December 2014. However, as held by us, the period of 79 days, when interim stay order was in operation, needs to be excluded, in which case the award could be validly made until 20th M....
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....ction (3) to Section 37 of the 2013 Act requires the Collector to keep open to public and display summary of the entire proceedings undertaken in the case of acquisition of land, including the amount of compensation awarded. These mandates must be complied with, but as they are post the making of the award and, therefore, would not affect the validity of the award when made within the statutory time. Issue of notice by the Collector to the persons interested, which is to be given to the persons not present personally or through the representatives when the award is made, is to be issued immediately, but the issue of notice is not a condition precedent for making the award. Belated issue of notice would not, therefore, legally affect the validity of the award, though there may be other consequences. Equally, the limitation period to challenge and question the compensation awarded would commence on the service/intimation about making of the award on the landowners. See Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and Another AIR 1961 SC 1500 - the date for counting limitation period means the date of communication or is known by a party whether actually or constru....