Terming the delay occasioned by the State in paying compensation to a land owner as an act of "carelessness and callousness", a bench of the Supreme Court of India comprising of Justice Vikramjit Sen and Justice Abhay Manohar Sapre set aside the land acquired in Bihar's Khagaria district way back in 1987 for construction of government quarters by invoking the urgency clause (Section 17) of the Land Acquisition Act, 1894. The Apex court ruled (Laxami Devi vs. State of Bihar & Ors. CIVIL APPEAL No. 3385 OF 2012)that the urgency clause of the Act cannot be interpreted in such a way that the landowners will have no protection, even if they are not paid full compensation for their land for decades.
The Apex Court held unambiguously that the consequence for delay in awarding compensation in land acquisition by the governments has to be borne by the "errant state" and not the "innocent land owners", the Supreme Court today said.
The Bench said it was determined to insulate genuinely urgent projects from lapsing and not to annihilate the constitutional rights of the individual from the might of the State even though it transgresses the essence of the statute. "It has become alarmingly commonplace for lands to be expropriated under the banner of urgency or even under the normal procedure, only to be followed by a withdrawal or retraction from this exercise enabling a favoured few to harvest the ill-begotten windfall," the Court added.
The Bihar Government had by means of Notification No.2/86-87 dated 18.11.1987 and 3/86-87 dated 18.11.1987 initiated steps for acquiring tracts of lands in Mouza Sansarpur and in Hardas Chak. These Notifications had simultaneously excluded the provisions of Section 5A of the L.A. Act from applying to the acquired lands. The notification inter alia provided : “whereas it is the opinion of the Governor of Bihar that the above mentioned barren land/agricultural land and its part thereof is necessary for immediate acquisition. Therefore, it is directed under sub section 4 of the section 17 of the above Act that the provisions of the section 5A of the above act shall not apply to the above land/lands”
This first Notification under Section 4 came to be followed by several subsequent Notifications indicating that the preceding Notification had lapsed by operation of the statute.
The Government issued a Notification under Section 4 of the L.A. Act on 16.9.1999 in respect of which the land owners filed Objections under Section 5A on a consideration of which the Land Acquisition Officer had opined that the Notification issued in 1987 could not be continued with as the Award had not been passed within the stipulated time period thereby making it necessary to issue the 1999 Notification. This Notification also expired because a Declaration under Section 6 had not been promulgated within one year. Hence yet another Notification was published on 13.8.2001, for which the Appellants filed their Objections under Section 5A yet again. This Notification also lapsed, since the sequence of events as contemplated in the L.A. Act had not been duly completed. Once again, in 2004, fresh steps were initiated for acquisition which also expired for the same reason.
Within a week of the publication of the Section 4 Notification, that is on 24.11.1987, notices under Section 17(1) of the L.A. Act were also issued, which resulted in the filing of writ petitions in the following year, in which it was contended that resort to Section 17 of the L.A. Act was mala fide, and that compensation, as envisaged in the statute itself, had not even been tendered to the owners. In CWJC No.4007 of 1988, a Division Bench of the High Court of Judicature at Patna directed on 12.7.1988 that the Award for compensation must be made within four months.
The Writ Petition was disposed of observing - (i) possession of the land had already been taken
by the State; (ii) eighty per cent compensation had been paid to the Appellants; (iii) the remainder twenty per cent along with interest would be paid to the owners on their appearance before the Land Acquisition Officer; (iv) they would be entitled to raise the claim of higher interest considering that the land had been acquired in 1987; and (v) Appellant was entitled to raise objections with respect to the value of the land.
But no Award was passed by the State under Section 11 of the LA Act even though the direction of the High Court had attained finality. [Section 11A prescribes a limitation of two years for the making of an Award by the Collector.’
The land owner contended before the Apex Court that the incontrovertible position that portions of the land have remained unutilized for decades is clearly indicative of the fact that they are not required by the State any more.
The State contended that the subject acquisition stands completed in all respects, which led to the Court remarking that it was “endeavouring, illegally in our considered opinion, to avoid performance of their statutory obligations of computing compensation and then paying it.” The version of the State was that large parcels of these lands have been utilized for constructing residential quarters for senior Officers of the State, and that the Appellant has been paid eighty per cent of the compensation, although twenty per cent supposedly still remains outstanding. Reliance was placed by the State on Satendra Prasad Jain vs. State of U.P. (1993) 4 SCC 369 and Lt. Governor of Himachal Pradesh v. Avinash Sharma (1970) 2 SCC 149
The Court rejected the contention of the appellants that the land should revert to them under Section 11A, since an Award under Section 11 has still not been made despite the passage of almost three decades from the date of the subject Notification. The Bench said, “once land has vested in the State, the question of re-vesting its possession in the erstwhile landowners is no longer available as an option to the State. This legal position was enunciated close to a half century ago in Avinash Sharma and has been subsequently reiterated in numerous judgments.”
The Court held that “The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raison d’etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.”
The Bench said that it was imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. It said in the case at hand both need not go hand in hand. “In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided it re-acquires the land with a new Section 4 notification. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17.”
Allowing the appeal, the Bench further said : "While we presently refrain from passing any orders or direction pertaining to or interfering with the possession of the Government over the subject land, the acquisition dated November 18, 1987 is set aside for non-compliance with the provisions of Section 11A of the L.A. Act.