BIMLENDRA MOHAN PRATAP MISHRA AND ANOTHER Vs. STATE OF U.P. THROU. ITS PRIN. SECY. URBAN PLANNING & DEVP. & ORS.
LAWS(ALL)-2017-2-34
HIGH COURT OF ALLAHABAD
Decided on February 14,2017

Bimlendra Mohan Pratap Mishra And Another Appellant
VERSUS
State Of U.P. Throu. Its Prin. Secy. Urban Planning And Devp. And Ors. Respondents




JUDGEMENT

- (1.)This petition raises another dimension in relation to the claim of benefits arising out of Sec. 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
(2.)On a preliminary hearing, the following order was passed by this Court on 8.12016:-
"Heard Sri Sidharth Dhaon, learned Counsel for the petitioners and learned Standing Counsel for the State.

The preliminary facts that are required to be seen for the purpose of hearing in this petition finally are, that admittedly, the land which was owned by the predecessors-in-interest of the petitioners was acquired for the purpose of a playground of a Government Intermediate College at Gonda. Notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 were issued on 12.9.1975 and 5.1.1976 respectively. It appears that possession was taken and proceedings commenced for the declaration of an award. The award was passed on 31.3.1981. Aggrieved by the amount of compensation awarded, the then owners preferred a Reference and applied before the District Magistrate under Sec. 18 of the then Land Acquisition Act, 1894. The District Magistrate vide order dated 17.7.1984 recorded his satisfaction while forwarding the reference to the Court concerned. Accordingly, Reference No.1/1984 was registered before the learned District Judge, Gonda that proceeded and since the reference proceedings could not be concluded, the petitioners filed Writ Petition No.2213 (MB) of 2006 praying for an appropriate relief. They also alleged in the writ petition that the amount which had been awarded under the award of 1981 had neither been deposited nor the said amount had been paid to the petitioners. A counter affidavit was filed in the said writ petition, copy whereof has been filed on record of this writ petition as Annexure-6. The counter affidavit clearly recites that the amount awarded had not been received from the acquiring body and the petitioners had not been paid over the compensation. The said writ petition was disposed of as infructuous on 28.8.2014. The reference proceedings terminated vide order dated 2.4.2010 before the learned District Judge against which the petitioners have filed First Appeal No.56 of 2010. The same is pending consideration before this Court. After the reference order was pronounced, the petitioners were offered two cheques dated 8.4.2011 thereby tendering the amount which had been enhanced during reference proceedings.

In this background, the petitioners have come up before this Court contending that in view of the provisions of Sec. 24 (2) read with Sec. 73 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, since the respondents admittedly had failed to either deposit the amount or pay the compensation awarded under Sec. 11 within the time as prescribed, and had not been paid prior to five years of the date of enforcement of the 2013 Act, therefore the proceedings should be deemed to have lapsed and the provisions of the 2013 Act should be applied with full force in the present facts and circumstances of the case. It is urged that this defect of non-deposit and non-payment of compensation as contemplated under the provisions of Sec. 24 (2) of the 2013 Act, therefore now entitles the appellants to seek benefit of the aforesaid provisions and the aforesaid defect would not stand cured by any subsequent tendering of the amount in 2011 as mentioned aforesaid. It is therefore urged that the writ petition be allowed and appropriate directions be issued.

Learned Standing Counsel on the other hand contends that the judicial intervention of the reference proceedings as well as the tendering of the amount awarded in the reference proceedings that has been accepted by the petitioners should be treated to be a voluntary act on their part and therefore, they, i.e., the petitioners are now estopped from raising any grievance under the 2013 Act. We have considered the aforesaid submissions raised and prima facie, we find that this being a new dimension in the matter relating to consideration of a question that has cropped up after the reference proceedings have been decided has to be adjudicated keeping in view the pronouncement of the Apex Court in the case of Delhi Development Authority Vs. Sukhbir Singh and others [AIR 2016 SC 4275]. Further, what has to be seen is as to whether by virtue of accepting the amount after reference proceedings on 8.4.2011, the petitioners can be presumed to have waived their right to seek benefit of the provisions of Sec. 24 (2) keeping in view the fact that admittedly, the amount had not been deposited by the respondents within the time prescribed as contemplated under the 2013 Act.

Prima facie, there cannot be any estoppel against statute and secondly, so far as the conduct of the petitioners is concerned, they are entitled to plead that there is no estoppel by conduct as well, inasmuch as they have already assailed the reference order by way of a First Appeal before this Court which is pending consideration.

Learned Standing Counsel prays for time to study these aspects and then, assist the Court. Let a counter be filed within three weeks by the State.

List in the second week of Jan., 2017."

(3.)The learned Counsels had been called upon to file appropriate affidavits in order to supplement these submissions. Learned Standing Counsel for the State filed a supplementary counter affidavit in compliance of the said order dated 21.2017 to which a supplementary rejoinder has been filed by the petitioners on 27.1.2017. Upon exchange of these affidavits, the matter was again heard on 2.2.2017 and 6.2.2017. On 6.2.2017, on the request of the learned Additional Advocate General Sri V. K. Tiwari for the State, the following order was passed:-
"Heard Sri V.K.Tiwari, learned Additional Advocate General and the learned Standing Counsel for the State.

The submissions that have been advanced are to the effect that the facts of the present case clearly make the applicability of law in the case of Delhi Development Authority Vs. Sukhbir Singh and others [AIR 2016 Volume 8, Supreme Court, page 4275] distinguishable inasmuch as the petitioners have been extended the benefit of payment much prior to the enforcement of the 2013 Act in 2011. In this context an argument has been made that neither the provisions of Sec. 24(2) nor the decision in the case of Delhi Development Authority (supra) impedes either the tendering of such payment or receipt by the tenure-holder so as to attract the provisions of lapse as contained in Sec. 24(2) of the 2013 Act. Their argument is that if the payment had already been made prior to 01.01.2014, the petitioners cannot claim any extension of such benefit inasmuch as neither the legislature nor the pronouncements do in any way create a embargo of not receiving payment within a period of five years and, therefore, the leeway period should be understood accordingly as indicated in Paragraph 14 of the judgment in the case of Delhi Development Authority (supra).

The arguments could not conclude. Learned Additional Advocate General prays that the matter be taken up tomorrow.

Put up tomorrow i.e. 07.02.2017."

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