Landowners Under UP Awas Vikas Act Entitled To Same Benefits As Under 2013 Land Acquisition Act: Allahabad High Court
The Allahabad High Court has held that landowners whose land is compulsorily acquired under the U.P. Awas Evam Vikas Parishad Adhiniyam, 1965 must be given monetary as well as non-monetary compensation on the same parameters as those prescribed under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
It held that any other view would result in arbitrary and hostile discrimination and would not be sustainable under Article 14 of the Constitution of India.
Rather than strike down Section 55 of the Adhiniyam, 1965 and its Schedule, the Court saved them by reading into acquisition proceedings under the Adhiniyam the provisions of the Act, 2013, or at least the principles contained in it.
Section 55 of the Adhiniyam, 1965 read with its Schedule applies the Land Acquisition Act, 1894, with modifications, to acquisition of land for schemes framed by the U.P. Awas Evam Vikas Parishad. The Act, 1894 was repealed by Section 114 of the Act, 2013.
The bench of Justice Rajan Roy and Justice Manjive Shukla held,
“We, therefore, hold that while initiating proceedings for compulsory acquisition under the Adhiniyam 1965 and the Act 1894, compensation, monetary and non-monetary in the form of rehabilitation and resettlement shall be on the same parameters as prescribed in the Act, 2013 and the principles contained therein and same benefits will have to be extended to the concerned landowners under the Adhiniyam, 1965. Any other understanding of the legal position will result in arbitrary and hostile discrimination and would not be sustainable under Article 14 of the Constitution of India.”
The Board framed three schemes at Ayodhya, one principal scheme and two supplementary ones, spread over six villages. Land was taken by purchase on mutual negotiation, by land pooling and by compulsory acquisition. Only the compulsory acquisition was in issue, and it had been carried out under the Adhiniyam, 1965 read with the Act, 1894, and not under the Act, 2013.
A public interest litigation and nine writ petitions were filed challenging the vires of Sections 28, 31(1), 32 and 55 of the Adhiniyam, 1965, along with the schemes, the acquisition proceedings and the awards. Some petitioners, without challenging the vires, sought compensation and rehabilitation in terms of the Act, 2013.
Senior Counsel Asit Chaturvedi, for the Board, contended that the challenge was confined to repugnancy and that pleadings supporting a challenge under Article 14 were absent. He submitted that the decisions relied on by the petitioners concerned monetary compensation alone, which was in any event being determined under the Act, 2013, so that no question of differential treatment arose.
Additional Advocate General Sudeep Kumar submitted that the Adhiniyam, 1965 was a special, self-contained enactment while the Act, 2013 was general.
Amicus Curiae Apoorva Tewari submitted that compensation must be read as taking in both monetary and non-monetary compensation.
The held that landowners whose land is acquired under any enactment belong to one class for the purposes of compensation, and they cannot be treated differently on the ground that the acquisition is under a different enactment or by a different authority, unless the acquisition is for their own benefit.
Relying on the seven-judge bench decision of the Supreme Court in Nagpur Improvement Trust and another vs. Vithal Rao and others and on U.P. Awas Evam Vikas Parishad vs. Jainul Islam and another, it found that neither the State nor the Board had placed any material justifying differential treatment.
“there is no intelligible differentia to treat the landowners whose land is acquired under the Adhiniyam 1965 read with the Land Acquisition Act 1894 differently in the matter of restitution or fair compensation for such acquisition”
The Court then held that compensation is not confined to money. It observed that the Adhiniyam, 1965 itself contemplated rehabilitation under Section 21, so that the State legislature had never confined restitution to money, but that the provision left the modalities and the stage at which such a scheme is to be prepared unstated.
Comparing the two enactments, the Court found the parameters under the Act, 2013 markedly different and more beneficial. It noted the Board's own stand that monetary compensation for these schemes was being determined under the Act, 2013 even though there was no provision for doing so, and held that it was therefore not open to the Board or the State to resist the remaining provisions on rehabilitation and resettlement.
It held that Section 55 and its Schedule, applied without the aid of the Act, 2013, would accordingly suffer from the vice of arbitrary and hostile discrimination.
“Section 55 treats equals as unequals, contrary to the constitutional mandate contained in Article 14 and 300A of the Constitution of India”
Referring to Offshore Holdings Private Ltd. vs.Bangalore Development Authority and others, where the compensation provisions of the Act, 1894 were held to apply to acquisition under the Bangalore Development Authority Act although that Act was a complete code, the Court observed,
“Article 14 guarantees an equal treatment of landowners in the matter of compensation, has to be ensured and any deviation from this is anathema to the Constitution.”
Holding that courts must lean towards a construction that saves a provision, the Court applied the exception to the doctrine of legislation by incorporation recognised in M.V. Narasimhan and Jainul Islam, under which incorporated provisions give way where they become ineffectual and unworkable, adding that the provisions could be saved on the same reasoning even independently of that exception.
Sections 28, 31 and 32 were not declared ultra vires as the Court found that they merely provide for notification and sanction of schemes and lay down no parameter for restitution. Section 55 and its Schedule were saved on the footing that the benefits to landowners under the Adhiniyam, 1965 shall not be less beneficial than those under the Act, 2013.
The Court declined to quash the schemes or the acquisition proceedings, holding that this would put the clock back by several years and jeopardise the larger public purpose behind them, some of the land having already been allotted to third parties.
Relying on U.P. Avas Evam Vikas Parishad v. Chandra Shekhar, it exercised its discretionary jurisdiction under Article 226 to direct instead that monetary compensation be paid under the Act, 2013 and that awards already rendered be revisited forthwith where required to bring them strictly in tune with that Act.
The Board was further directed to ascertain how many landowners had been completely displaced by acquisition of their entire holdings and, if any were found, to frame and implement a rehabilitation scheme under Section 21 of the Adhiniyam, 1965 read with the relevant provisions of the Act, 2013 within six months, unless the obligation could be quantified in monetary terms under Sections 31 and 47 of the Act, 2013 and paid in full satisfaction.
Any landowner aggrieved by an award was left free to challenge it in accordance with law, with the issues decided in the judgment available as grounds of challenge. All the writ petitions were disposed of accordingly.
Case Title: Shri Saryu Nagar Vikas Samiti Thru. President Sri Awadhesh Kumar Singh v. State of U.P. Thru. Prin. Secy. Deptt. of Housing and Urban Planning Lko. and 5 others