Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6778 6780 OF 2022
Bharat Petroleum Corporation Ltd. (BPCL) & Ors. ...Appellant(s)
Versus
Nisar Ahmed Ganai & Ors. …Respondent(s)
With
CIVIL APPEAL NOS. 6781 6783 OF 2022
J U D G M E N T
M.R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
common judgment and order dated 06.10.2021 passed by
the High Court of Jammu & Kashmir and Ladakh, at
Jammu in respective writ petitions preferred by the private
respondents herein – original petitioners whereby the
appellants herein – original respondents have been directed
to determine the compensation of the acquired lands in
accordance with the provisions of the Right to Fair
Signature Not Verified
Compensation and Transparency in Land Acquisition,
Digitally signed by
SNEHA
Date: 2022.10.12
16:29:26 IST
Reason:
Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as “the Act, 2013”), the appellants herein –
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original respondents have preferred present appeals.
2. The facts leading to the present appeals in a nutshell are as
under:
2.1 That, the lands in question were sought to be acquired
under the provisions of the State Land Acquisition Act, 1990
(hereinafter referred to as “State Act of 1990”). The
notification under Section 4 of the State Act of 1990 was
issued on 15.11.2016. The lands in question were sought to
be acquired for the appellants – beneficiary. That thereafter
declaration under Section 6 of the State Act of 1990 was
issued on 12.11.2018. The land owners – original petitioners
filed the respective petitions before the High Court
challenging the proceedings initiated under the J&K Land
Acquisition Act SVT 1990 with the following prayers:
A. CERTIORARI; so as to quash the proceedings initiated
by respondents u/s 4,6,9 & 9A and Section 17 of J &
K Land Acquisition Act, SVT 1990 for the acquisition of
land for relocation of petroleum Depots from Channi
Himmat near Railway Station to Villages Pargalta and
Khana Chargal, Tehsil and District Jammu.
B. MANDAMUS; so as to command and direct the
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respondents to denotify the land sought to be
acquired in villages Pargalta and Kanna Chargal,
Tehsil and District Jammu for relocation of Petroleum
Depots.
C. PROHIBITION; so as to restrain the respondents from
taking the possession of land falling under various
Khasra numbers of aforesaid villages u/s 17 of J&K
Land Acquisition Act.
2.2 That, during the pendency of the writ petitions before the
High Court, the State Act of 1990 came to be repealed. When
the aforesaid writ petitions came up for hearing before the
High Court, the learned Counsel appearing on behalf of the
original writ petitioners submitted that the petitioners would
be satisfied, if instead of quashing the land acquisition
proceeding, determination of compensation is made in
accordance with the provisions of Section 24 of the Act,
2013.
2.3 It was the case on behalf of the original writ petitioners
before the High Court that as neither the possession of the
lands in question have been taken over nor the award has
been declared even under the State Act of 1990, the original
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writ petitioners shall be entitled to compensation of acquired
land in accordance with the provisions of Section 24(1) of the
Act, 2013.
2.4 The aforesaid prayer was opposed by the appellants on the
ground that as the acquisition proceedings have been
initiated under the State Act of 1990, Section 24(1) of the
Act, 2013 shall not be applicable at all. It was submitted on
behalf of the appellants that in view of Section 6 of the
General Clauses Act, 1897 read with subclause (13) of
Clause 2 of the Jammu & Kashmir Reorganization (Removal
of Difficulties) Order, 2019 issued vide S.O. No.3912(E) of
2019 dated 30.10.2019 of the Ministry of Home Affairs
(Department of J & K Affairs) the repeal of the Act shall not
affect the rights, privileges, obligations or liabilities acquired,
accrued or incurred under any law so repealed and that any
investigation, legal proceeding or remedy may be instituted,
continued and enforced as if Jammu & Kashmir
Reorganization Act, 2019 has not been passed. Therefore, it
was submitted on behalf of the appellants that award in
respect of the acquisition in question has to be made in
accordance with the provisions of the State Act of 1990 and
Section 24 of the Act, 2013 would not be applicable.
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2.5 By the impugned judgment and order the Division Bench of
the High Court has allowed the said writ petitions and has
directed the appellants – original respondents to determine
the compensation of the acquired lands in accordance with
the provisions of the Act, 2013.
2.6 Feeling aggrieved and dissatisfied with the common
judgment and order passed by the High Court directing the
appellants to determine and pay the compensation of the
acquired lands in accordance with the provisions of the Act,
2013, the original respondents – appellants herein, for
whose benefit the lands have been acquired, have preferred
the present appeals.
3. Shri Tushar Mehta, learned Solicitor General appearing on
behalf of the appellants has vehemently submitted that in
the facts and circumstances of the case, the High Court has
erred in directing the appellants to determine and pay the
compensation under the provisions of Section 24 of the Act,
2013.
3.1 It is further submitted that in view of Clause 2(13) of the
Order, 2019 read with Section 6 of the General Clauses Act,
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the rights, liabilities, and obligations acquired, accrued or
incurred under the Repeal Law vis. State Act of 1990 stands
saved and would continue under the said Act.
3.2 It is further submitted by Shri Mehta, learned Solicitor
General appearing on behalf of the appellants that even
otherwise considering Section 24(1) of the Act, 2013, with
respect to the acquisition under the State Act of 1990, Act,
2013 shall not be applicable at all. It is submitted that
Section 24 of the Act, 2013 shall be applicable only in a case
where the acquisition under the provisions of Land
Acquisition Act, 1894 have been initiated. Heavy reliance is
placed on the decision of this Court in the case of Bangalore
Development Authority & Anr. vs. The State of
Karnataka & Ors. rendered in M.A. No.16141616 of 2019
in M.A. No.13461348 of 2019 in Civil Appeal Nos.7661
7663 of 2018.
3.3 It is further submitted by Shri Mehta, learned Solicitor
General appearing on behalf of the appellants that even
otherwise the High Court has erred in holding that as the
award was not declared and the possession was not taken
over, Section 24 of the Act, 2013 shall be applicable.
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3.4 It is further submitted that the High Court has failed to
appreciate that the award could not be passed on account of
stay order granted by the High Court. It is submitted that
therefore nonpassing of the award which was due to the
stay granted by the High Court cannot be a ground to apply
Section 24 of the Act, 2013.
Making the above submissions it is prayed to allow the
present appeals.
4. Present appeals are vehemently opposed by learned Counsel
Sunil Fernandes appearing on behalf of the respondents
herein – original writ petitioners.
4.1 It is submitted that in the present case, as neither the
possession of the lands in question have been taken over nor
the compensation has been paid as the award was not
declared, no error has been committed by the High Court in
directing to pay the compensation under the Act, 2013.
4.2 It is further submitted by the learned Counsel appearing on
behalf of the original writ petitioners that in the present case
neither Clause 2(13) of the Jammu & Kashmir
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Reorganization (Removal of Difficulties) Order, 2019 nor
section 6 of the General Clauses Act, 1897 shall be
applicable.
4.3 It is submitted that reliance placed by the appellants on the
decision of this Court in the case of Bangalore Development
Authority & Anr. (Supra) is wholly misconceived, as the
same shall not apply to the facts of the instant case. It is
submitted that in the said judgment it was held that the
repeal of the Land Acquisition Act, 1894 would not affect /
lapse the land acquisition proceedings initiated under the
Bangalore Development Act, 1976, inasmuch as the
provisions of the former Act had been ‘incorporated’ into the
latter Act and therefore, had independent existence. It is
submitted that in the said decision the view taken by this
Court was on the premise that since the governing statute,
i.e., the Bangalore Development Act, 1976 had not been
repealed, there was no occasion of applicability of the Act,
2013. It is submitted that in the present case, J & K Act
which was pari materia to the Land Acquisition Act, 1894
stands repealed and Act, 2013 has come into force with
respect to the J & K with effect from 31.10.2019 on
enactment of the Jammu & Kashmir Reorganization Act,
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2019.
4.4 It is further submitted that in view of the plain language
implied in Section 24 of the Act, 2013 i.e., if at the time of
commencement of the Act, 2013, no award has been made
under the old Act, then all provisions under the new Act
(Act, 2013) relating to determination of compensation shall
apply. It is submitted that therefore the intention of the
legislature to ensure that the proceedings under the old Act
did not lapse merely due to the coming into force of the new
Act. However, at the same time, the intention is to give
benefit of the liberal provisions of the Act, 2013 to the land
owners as well. It is submitted that therefore the High Court
has rightly held that in case an award has been made under
the J&K Act before its repeal, then the right of compensation
of the land owners would certainly have been determined in
accordance with the J & K Act only. However, where no
award has been passed under the J & K Act before its repeal
and consequently no right to compensation had been
matured, neither clause 2(13) of the Jammu and Kashmir
Reorganization (Removal of Difficulties) Order, 2019 nor
Section 6 of the General Clauses Act shall be employed to
nullify the express provision contained in Section 24(1) of
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the Act, 2013 insofar as it provides that where no award is
passed under the old / repealed Act, the provisions of
enhanced compensation under the Act, 2013 would apply
while not affecting the land acquisition proceedings under
the old / repealed law as such.
4.5 Now, so far as nonpassing of the award on account of the
stay order dated 14.12.2018 is concerned, it is submitted
that as such the order dated 14.12.2018 was only directing
the parties to maintain status quo with regard to the
possession and the High Court did not pass any interim
order restraining the authorities from declaring the award. It
is submitted that even the order of status quo was in some
of the writ petitions and did not extend to other lands. It is
submitted that despite the same, no award was passed.
4.6 In the alternative it is submitted by the learned Counsel
appearing on behalf of the original writ petitioners that
before the High Court the land acquisition proceedings were
challenged on number of grounds and to pay the enhanced
amount of compensation under Section 24(1)(a) of the Act,
2013 was an alternative prayer due to nondeclaration of the
award under Section 11 of the State Act of 1990. It is
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submitted that in view of the alternative relief prayed for by
the original writ petitioners, the High Court did not go into
the merits of the submissions of the original writ petitioners
with respect to quashing of the land acquisition proceedings
and therefore, to that extent the issue is yet to be
considered. It is submitted that in case this Court takes the
view that the provisions of the Act, 2013 shall not be
applicable and that the original land owners are not entitled
to enhanced compensation under Section 24(1)(a) of the Act,
2013, in that case, the matters may be remanded to the
High Court to decide the writ petitions on other grounds.
5. We have heard Shri Tushar Mehta, learned Solicitor General
appearing on behalf of the appellants and Shri Sunil
Fernandes, learned Counsel appearing on behalf of the
respondents herein – original writ petitioners.
5.1 Having gone through the impugned common judgment and
order passed by the High Court, the High Court has directed
the appellants herein to determine and pay to the original
owners the compensation under the Act, 2013 on the ground
that no award under the State Act of 1990 has been
published and/or declared. While passing the impugned
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common judgment and order, the High Court has relied
upon Section 24(1)(a) of the Act, 2013. Section 24(1)(a) of the
Act, 2013 reads as under:
“24. Land acquisition process under Act No.1 of
1894 shall be deemed to have lapsed in certain
cases. (1) Notwithstanding anything contained in
this Act, in any case of land acquisition
proceedings initiated under the Land Acquisition
Act, 1894,
(a) where no award under section 11 of the
said Land Acquisition Act has been made, then,
all provisions of this Act relating to the
determination of compensation shall apply; or
(b) where an award under said section 11 has
been made, then such proceedings shall continue
under the provisions of the said Land Acquisition
Act, as if the said Act has not been repealed.”
On fair reading of Section 24(1)(a) of the Act, 2013, it
provides that notwithstanding anything contained in Act,
2013, in any case of land acquisition proceedings initiated
under the Land Acquisition Act, 1894, where no award
under Section 11 of the said Land Acquisition Act has been
made, then, all provisions of Act, 2013 relating to the
determination of the compensation shall apply. Section 24(1)
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of the Act, 2013 speaks about the land acquisition
proceedings initiated under the Land Acquisition Act, 1894.
In the present case, the lands in question have been
acquired under the provisions of the State Land Acquisition
Act, 1990. Therefore, the acquisition of the lands in question
is not under the Land Acquisition Act, 1894. It cannot be
disputed that prior to the enactment of the Jammu &
Kashmir Reorganization Act, 2019 and promulgation of the
Jammu & Kashmir (Removal of Difficulties) Order, 2019, the
Land Acquisition Act, 1894 was not applicable at all so as far
as the State of Jammu & Kashmir is concerned. It is only on
the enactment of the Jammu & Kashmir Reorganization Act,
2019, Act, 2013 shall be made applicable. It is the case on
behalf of the original writ petitioners that as the provisions of
the State Act of 1990 are pari materia to the Land
Acquisition Act, 1894 and therefore, Section 24(1)(a) of the
Act, 2013 shall be applicable. The aforesaid cannot be
accepted. The language of Section 24(1)(a) of the Act, 2013 is
very clear and unambiguous. It talks about the land
acquisition under the provisions of the Land Acquisition Act,
1894 only and it does not speak about any other pari
provision of different statutes.
materia
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At this stage the decision of this Court in the case of
5.2
Bangalore Development Authority & Anr. (Supra) is required
to be referred to. In the said decision it is specifically
observed and held that the Act, 2013 repeals only the Land
Acquisition Act, 1894 and not any other Central or State
enactment dealing with the acquisition and therefore, what
is sought to be saved under the Act, 2013 is only
acquisitions which have been initiated under the Land
Acquisition Act, 1894 and not those acquisitions which have
been initiated under any other Central or State enactment.
In paragraphs 19 and 23, this Court had observed and held
as under:
“19. The 2013 Act repeals only the LA Act and
not any other Central or State enactment dealing
with acquisition. Therefore, what is sought to be
saved under Section 24 of the 2013 Act is only
acquisitions which had been initiated under the LA
Act and 13 not those acquisitions which had been
initiated under any other Central or State
enactment. The expression contained in Section 24
of the LA Act cannot be given extensive
interpretation by adding words into the provision,
in the absence of the provision itself giving rise to
any such implication. We are of the view that 2013
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Act would not regulate the acquisition proceedings
made under the BDA Act.
23. In view of the above, the Learned Judge of
the High Court in Sri Sudhakar Hegde (supra) was
not justified in holding that the provisions of LA Act
that are made applicable to the BDA Act are in the
nature of legislation by reference. The learned
Judge has also erred in holding that in view of the
repeal of LA Act by coming into force of 2013 Act,
the corresponding provisions of 2013 Act would
regulate acquisition proceedings under the BDA Act
and that this would include determination of
compensation in accordance with 2013 Act. It is
hereby clarified that since LA Act has been
incorporated into the BDA Act so far as they are
applicable, the provisions of 15 2013 Act are not
applicable for the acquisitions made under the BDA
Act. Therefore, the judgment of the learned Single
Judge of the High Court in Sri Sudhakar Hegde
(supra) and other connected matters is hereby
overruled.”
In view of the above binding decision of this Court, we
are of the firm view that the provisions of the Act, 2013 shall
not be applicable with respect to the acquisition under the J
& K Act, 1990.
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5.3 Even otherwise considering clause 2(13) of the Order, 2019
read with Section 6 of the General Clauses Act under which
the rights, liabilities, privileges, obligations acquired,
accrued, or incurred under the repealed laws stands saved
and would be continued under those Acts (in the present
case the Act, 1990), it is to be noted that Order, 2019 is
subsequent to the Act, 2013. Therefore, it is to be presumed
that while enacting the Order, 2019 and providing Clause
2(13) of the Order, 2019, the legislature was conscious of the
provisions of the earlier Act (Act, 2013). Under the
circumstances also, with respect to the lands acquired under
the State Act of 1990, Section 24(1)(a) of the Act, 2013 shall
not be applicable at all.
Even otherwise, it is required to be noted that in some of the
5.4
writ petitions there was an order of status quo may be with
respect to the possession. It is to be noted that the
notification under Section 4 and declaration under Section 6
of the State Act of 1990 was a common notification /
declaration. Therefore, there was impediment on the part of
the authority in declaring the award. The original writ
petitioners cannot be permitted to take benefit of the order of
status quo obtained by some of the original writ petitioners
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and thereafter to contend that as the award has not been
declared they shall be entitled to the enhanced amount of
compensation under the provisions of the Act, 2013. In the
case of Indore Development Authority Vs. Manoharlal
and Ors.; (2020) 8 SCC 129 , it is observed and held by this
Court that:
(i) Lapse of acquisition takes place only in case of default by
the authorities acquiring the land, not caused by any other
reason or order of the court;
(ii) If it was not possible for the acquiring authorities, for any
reason not attributable to them or the Government, to take
requisite steps, the period has to be excluded;
(iii) In case the authorities are prevented by the court's order,
obviously, as per the interpretation of the provisions such
period has to be excluded;
(iv) The intent of the Act, 2013 is not to benefit landowners
only. The provisions of Section 24 by itself do not intend to
confer benefits on litigating parties as such, while as per
Section 114 of the Act, 2013 and Section 6 of the General
Clauses Act the case has to be litigated as per the
provisions of the Act, 1894;
(v) It is not the intendment of the Act, 2013 that those who
have assailed the acquisition process should get benefits of
higher compensation as contemplated under Section 24;
(vi) It is not intended by the provisions that in case, the
persons, who have litigated and have obtained interim
orders from the Civil Courts by filing suits or from the High
Court under Article 226 of the Constitution should have the
benefits of the provisions of the Act, 2013 except to the
extent specifically provided under the Act, 2013;
(vii) In cases where some landowners have chosen to take
recourse to litigation and have obtained interim orders
restraining taking of possession or orders of status quo, as
a matter of practical reality it is not possible for the
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authorities or the Government to take possession or to
make payment of compensation to the landowners. In
several instances, such interim orders also have impeded
the making of an award;
(viii) The litigation initiated by the landowners has to be decided
on its own merits and the benefits of Section 24(2) should
not be available to the litigants in a straightjacket manner.
In case there is no interim order, they can get the benefits
they are entitled to, not otherwise. Delays and dilatory
tactics and sometimes wholly frivolous pleas cannot result
in benefitting the landowners under subsection (1) of
Section 24 of the Act, 2013;
(ix) Any type of order passed by this Court would inhibit action
on the part of the authorities to proceed further, when a
challenge to acquisition is pending;
(x) Interim order of stay granted in one of the matters of the
landowners would cause a complete restraint on the
authorities to proceed further to issue declaration;
(xi) When the authorities are disabled from performing duties
due to impossibility, it would be a sufficient excuse for
them to save them from rigour of provisions of Section 24. A
litigant may have a good or a bad cause, be right or wrong.
But he cannot be permitted to take advantage of a situation
created by him by way of an interim order passed in his
favour by the Court at his instance. Although provision of
Section 24 does not discriminate between landowners, who
are litigants or nonlitigants and treat them differently with
respect to the same acquisition, it is necessary to view all of
them from the stand point of the intention of the
Parliament. Otherwise, anomalous results may occur and
provisions may become discriminatory in itself;
(xii) The law does not expect the performance of the impossible;
(xiii) An act of the court shall prejudice no man;
(xiv) When there is a disability to perform a part of the law, such
a charge has to be excused. When performance of the
formalities prescribed by a statute is rendered impossible
by circumstances over which the persons concerned have
no control, it has to be taken as a valid excuse;
(xv) The Court can under its inherent jurisdiction ex debito
justitiae has a duty to mitigate the damage suffered by the
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defendants by the act of the Court;
(xvi) No person can suffer from the act of Court and an unfair
advantage of the interim order must be neutralised;
(xvii) No party can be permitted to take shelter under the cover of
Court’s order to put the other party in a disadvantageous
position;
(xviii) If one has enjoyed under the Court's cover, that period
cannot be included towards inaction of the authorities to
take requisite steps under Section 24 as the State
authorities would have acted and passed an award
determining compensation but for the Court's order.
Therefore also, the original writ petitioners – land
owners shall not be entitled to enhanced amount of
compensation under Section 24(1)(a) of the Act, 2013 on the
ground that as the award has not been declared they shall
be entitled to compensation under the Act, 2013.
6. In view of the above and for the reasons stated above and
our specific finding that with respect to the lands acquired
under the provisions of the J & K Act, 1990 Section 24(1)(a)
of the Act, 2013 shall not be applicable and even otherwise
as observed hereinabove on merits also as the award could
not be declared due to the pendency of the writ petitions
before the High Court and the order of status quo , the High
Court has committed a serious error in directing the
appellants to pay the amount of compensation under the
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Act, 2013. To that extent the impugned common judgment
and order passed by the High Court is unsustainable, both
on facts as well as on law.
6.1 However, at the same time, as it is reported that the
acquisition proceedings were challenged on other grounds
also and the prayer to pay the compensation under the Act,
2013 was an alternative prayer, which has been granted by
the High Court and therefore, the High Court did not go into
the merits of the submissions made on behalf of the original
land owners with respect to the quashing of the land
acquisition proceedings on other grounds, the matters are to
be remanded to the High Court to decide the writ petitions
afresh in accordance with law and on its own merits on the
other grounds if any, challenging the land acquisition
proceedings under the State Act of 1990.
7. In view of the above and for the reasons stated above, all
these appeals succeed. The impugned common judgment
and order dated 06.10.2021 passed by the High Court
allowing the writ petitions and directing the appellants to
pay to the original writ petitioners / original land owners the
compensation as per the Act, 2013 is hereby quashed and
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set aside. As the High Court has not decided the writ
petitions on merits on other grounds with respect to
quashing of the land acquisition proceedings, all the writ
petitions are remitted back to the High Court to decide and
dispose of the said writ petitions afresh in accordance with
law and on its own merits so far as other grounds with
respect to the quashing of the land acquisition proceedings,
which shall be dealt with by the High Court in accordance
with law and on its own merits. However, the issue with
respect to the applicability of the Act, 2013 is concluded and
shall not be reopened by the High Court and it is observed
and clarified that the High Court shall consider on merits
other submissions, if any raised in the writ petitions, with
respect to quashing of the land acquisition proceedings only.
Present appeals are allowed accordingly to the
aforesaid extent. In the facts and circumstances of the case,
there shall be no order as to costs.
………………………………….J.
[M.R. SHAH]
………………………………….J.
[KRISHNA MURARI]
NEW DELHI;
OCTOBER 12, 2022