Punjab-Haryana High Court
State Of Haryana And Anr vs Nishabar Singh And Ors on 20 December, 2024
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2024:PHHC:172142-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-11498-2019 (O&M) and
other connected cases
State of Haryana and another ......Petitioners
Versus
Nishabar Singh and others ......Respondents
Reserved on: 07.11.2024
Pronounced on: 20.12.2024
CORAM : HON'BLE MR. JUSTICE G.S. SANDHAWALIA
HON'BLE MS. JUSTICE HARPREET KAUR JEEWAN
Present:- Ms. Sidhi Bansal, Ms. Ridhi Bansal and
Mr. Viney Kumar, Advocates,
for petitioners in CWP-26394-2021.
Mr. M.L. Sarin, Sr. Advocate with
Mr. Ritesh Aggarwal, Advocate for the petitioner(s)
in CWP Nos.9622 & 30210 of 2019.
Mr. Ashwani Kumar Chopra, Senior Advocate with
Mr. Brahamjot Singh Nahar, Advocate,
for the petitioner (s) in CWP No.22579 of 2019.
Mr. Shailendra Jain, Senior Advocate with
Ms. Richa Sharma, Advocates,
for the petitioner (s) in CWP Nos.26227 & 31380 of 2019.
Mr. Puneet Bali, Sr. Advocate with
Mr. Sachin Jain & Ms. Niharika Mittal, Advocates,
for the petitioner(s) in CWP No.30727 of 2018.
Mr. Sandeep Sharma & Mr. Rohan Moudgil, Advocates,
for the petitioner(s) in CWP Nos.32764 & 16532 of 2019 and
CWP Nos.1489, 1696, 1018, 315, 749,779 and 3287 of 2021.
Mr. M.L. Sharma, Advocate,
for the petitioner (s) in CWP-24404-2021.
Mr. P.R. Yadav, Mr. Jayant Yadav, Advocates,
for the petitioner (s) in CWP-25790-2023.
Mr. Rajesh Sethi, Mr. Arun Kumar Biriwal, Mr. Anshuman
Sethi & Mr. Paramdeep Singh, Advocates,
for the petitioner (s) in CWP Nos.13782, 13791 & 13800 of
2023.
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Mr. Mahipal S. Yadav, Advocate,
for Mr. J.S. Yadav, Advocate,
for petitioner in CWP-14957-2020.
Mr. Chanchal K. Singla, Advocate,
with Ms. Kavita Joshi, Advocate,
for the petitioner(s) in CWP-8755-2021.
Mr. Hemant Saini, Advocate,
for the applicant in CWP-21112-2019.
Ms. Darika Sikka, Advocate,
for petitioners in CWP-21066-2021.
Mr. Anil Chawla, Advocate,
for HSVP (in CWP Nos.2338 and 3111 of 2021).
Mr. Ankur Mittal, Addl. A.G., Haryana,
with Mr. Saurabh Mago, DAG, Haryana,
and Mr. Karan Jindal, AAG Haryana.
Mr. Ankur Mittal, Advocate with
Ms. Kushaldeep Kaur, Mr. Siddhant Arora
and Ms. Naina Jindal, Advocates,
for HUDA/HSVP.
Mr. Arvind Seth, Advocate,
for respondent-HSVP in CWP-22122-2019.
Mr. Anupam Gupta, Sr. Advocate,
with Mr. Rajeev Godara, Mr. Gautam Pathania,
and Mr. Sukhpal Singh, Advocates,
for respondents in CWP-11498-2019.
Ms. Vasu Gupta, Advocate,
for Mr. Prateek Mahajan, Advocate,
for respondents no.3 & 4 in CWP-26394-2021.
Mr. Satya Pal Jain, Assistant Solicitor General of India,
with Mr. Dheeraj Jain, Advocate.
*****
G.S. Sandhawalia, J.
1. The present judgment shall dispose of 39 above referred writ
petitions i.e. CWP-11498-2019, CWP Nos.25300 & 30727 of 2018, CWP
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Nos. 30210, 21650, 22122, 20567, 32764, 26227, 16532, 21112, 22176,
31380, 2999, 8897, 9622, 22579, 28689 & 31168 of 2019; CWP No.
14957 of 2020; CWP Nos.1489, 1696, 21066, 1018, 24404, 8755, 2338,
315, 749, 779, 3287, 3111 & 26394 of 2021;CWP No.1409 of 2022 and
CWP Nos.13782, 13791, 13800, 25790 & 15831 of 2023, wherein the
issue which arises for consideration is the vires of Section 101A of the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (for short ‘2013 Central Act’),
which has been inserted by the Haryana Act No.21 of 2018 on 24.05.2018
by way of State Amendment with retrospective effect from 01.01.2014, the
date the 2013 Central Act came into force.
2. By virtue of the said provisions, the State has been given
power to de-notify the land, on account of the fact that the public purpose
for which the land was acquired under the Land Acquisition Act, 1894 (for
short ‘1894 Act’) becomes unviable or non-essential, on such terms as
considered expedient by the State Government. The payment of
compensation on account of the damages, if any, sustained by the
landowners due to such acquisition has, thus, been kept within the ambit of
the State as such to assess. The proviso further provides where a part of
the acquired land has been utilized or any encumbrances have been
created, the landowners may be compensated by providing alternative land
alongwith payment of damages, if any, as determined by the State
Government. In pursuance of the said amendment, policy dated
14.09.2018 has also been formulated, which prescribes the procedure for
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de-notifying the land acquired under the 1894 Act on the prescribed terms.
The said Section 101A reads as under:-
“101A. Power to denotify land.- When any public
purpose, for which the land acquired under the Land
Acquisition Act, 1894 (Central Act 1 of 1894) becomes
unviable or non-essential, the State Government shall be at
liberty to denotify such land, on such terms, as considered
expedient by the State Government, including the payment
of compensation on account of damages, if any, sustained
by the land owner due to such acquisition:
Provided that where a part of the acquired land has
been utilized or any encumbrances have been created, the
landowner may be compensated by providing alternative
land alongwith payment of damages, if any, as determined
by the State Government.”
3. Challenge has been raised on various grounds, primarily on
the fact that Section 101 of the Central Act of 2013 itself talks about the
return of un-utilized land which was acquired under the 2013 Central Act
and the fact that there is no reference as such to the return of land acquired
under the 1894 Act. Secondly that under Section 24 of 2013 Central Act
there is a specific provision that any award which has been made under the
1894 Act and where proceedings had been initiated under the said Act, the
proceedings would have to continue under the provisions of the said Act,
as if the Act has not been repealed as per Section 24(1)(b). In such
circumstances, the said amendment being in derogation of the Central Act
has also been challenged, apart from the fact that Section 101A is based on
complete arbitrariness and the provisions being manifestly arbitrary and
violative of Article 300A of the Constitution of India (for short
‘Constitution’) and is dehorse the legislative intent of 2013 Central Act,
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which saves all the acquisitions of 1894 Act and the law has been
crystallized regarding the said savings and the contrary stand taken by the
State of Haryana in defending the provisions of the 2013 Central Act,
which would be clear from the judgment of the Constitution Bench in
Indore Development Authority Vs. Manoharlal and others, (2020) 8
SCC 129. Thus, the colorable exercise of power has been challenged,
which has been given retrospective effect and where land has already been
vested in the State of Haryana and the fact that it is a exercise of non-
application of mind by the State authorities by resorting to the said
provisions without keeping in mind the methodology prescribed under the
policy framed.
4. In order to appreciate the challenge to the provisions as such,
the narration of factual matrix is necessary. The issue came to the
forefront when one of us (i.e. G.S. Sandhawalia, J.) was sitting in Single
Bench and dealing with the regular first appeals pertaining to the
enhancement of compensation and the references decided under Section 18
of the 1894 Act regarding the compensation to be paid qua the land falling
in village Vaidwala, Tehsil and District Sirsa which was acquired for the
development of residential and commercial Sectors 21 and 22(part),
wherein 350.53 acres was the subject matter of acquisition of the
notification dated 15.01.2008 issued under Section 4 of the 1894 Act. The
Collector vide Award dated 12.01.2011 had assessed the market value @
Rs.50 lakhs per acre, which the Reference Court enhanced to
Rs.83,18,000/- per acre, vide Award dated 28.09.2013. The matters had
been carried to this Court in regular first appeals and a remand had taken
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place in RFA No.583 of 2014 ‘Balbir Kaur Vs. State of Haryana and
others’ on 04.09.2015 and the market value was assessed @
Rs.96,80,000/- per acre on 10.03.2017 by the Reference Court. The
landowners then filed the regular first appeals for enhancement and vide
order dated 14.03.2018 in the State appeals, State was directed to deposit
Rs.84,70,000/- per acre within a period of 3 months. The State, instead of
filing any appeal against the interim order before the Apex Court, filed an
application for extension of time for making payment. The same was
allowed on 20.07.2018 while noting that the benefit of the stay had been
granted for the last 4 months, however, the amount being substantial the
indulgence was granted till 31.08.2018. The order dated 20.07.2018
passed in CM-6820-CI-2018 in RFA-3816-2017 reads as under:-
“Application has been filed for extension of time for
compliance of the order dated 14.03.2018, whereby the
State was directed to deposit the amount after giving part
interim relief in the stay application.
The amount had to be deposited within a period of 3
months with the Executing Court for necessary disbursal,
which has not been done, on account of the fact that amount
is substantial and request for funds have been sent. The
prayer for extension by six months, in such circumstances
does not seem to be justified in any manner. The State has
got the benefit of stay for the last 4 months. However,
keeping in view the fact that the amount involved is
substantial, indulgence is granted till 31.08.2018, on the
assurance given by Mr. M.K. Ahuja, Director Urban Estate
and Mr. Rajesh Jindal, Chief Controller of Finance, HSVP,
who are present in the Court.
Accordingly, the application for extension of time is
partly allowed.
CM stands disposed of.”
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5. Thereafter, the State had filed an application for recalling the
order dated 20.07.2018, whereby extension had been given to make
payment till 31.08.2018. Reference has been made to the notification
dated 10.01.2019, wherein de-notification of the acquired land had been
done by virtue of Section 101A and the policy dated 14.09.2018. It is
pertinent to notice that the State in pursuance of de-notification issued
notice to one of the land losers for claiming a sum of Rs.3,35,446/- as on
31.03.2021, which was the amount quantified alongwith interest on the
amount of compensation received for the land which was in principal
Rs.1,36,080/- on 01.02.2011 with another 20% amount which was on
account of non-litigation policy and the said notice is also subject matter
of challenge in CWP No.13782 of 2023.
6. Resultantly, reference was drawn up by one of us (i.e. G.S.
Sandhawalia, J.) on 08.04.2019 in CM-2133-CI-2019 in RFA-3816-2017
‘State of Haryana and another Vs. Nishabar Singh and others‘ as to
whether the action of the State was malafide and whether the policy as
such was sustainable on account of dropping of proceedings arbitrarily
and on account of the increase in acquisition cost due to Court orders and
same was beyond the scope of Section 101A once the land was acquired
under the principle of eminent domain. The complete arbitrariness on the
enforcement of Section 101A and the clash with Article 300A of the
Constitution was also highlighted while framing the 4 questions and
referring the matter to the Division Bench, vide order dated 08.04.2019,
which reads as under:-
“The interesting question which has arisen is
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101A as incorporated by the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Haryana Amendment) Act, 2017 (for short
‘2017 Act’), which provides for de-notification of the land
acquired, even though possession has already been taken.
The said section reads as under:-
“101A. Power to denotify land. When any public
purpose, for which the land acquired under the
Land Acquisition Act, 1894 (Central Act 1 of
1894) becomes unviable or non- essential, the
State Government shall be at liberty to
denotifysuch land, on such terms, as considered
expedient by the State Government, including the
payment of compensation on account of damages,
if any, sustained by the land owner due to such
acquisition:
Provided that where a part of the acquired land
has been utilized or any encumbrances have been
created, the landowner may be compensated by
providing alternative land alongwith payment of
damages, if any, as determined by the State
Government.”
2. In pursuance of the said amendment, notification
dated 14.09.2018 has also been issued, whereby a policy
has been framed which provides that if the land acquired
become non-viable or with an increase in acquisition costs
as a result of any reason including enormous enhancement,
the Government for reasons to be recorded not continue
with the acquisition. The terms of the policy as such under
Clause 14 whereby the via media has been worked as what
is the amount payable by the landowner regarding the land
which has been denotified and the payments which have to
be made and recoveries from the landowners and the
damages aspect for which the landowners have to approach
the relevant authority under the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
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Resettlement Act, 2013 have been specified. Clause 14 &
15 of the notification dated 14.09.2018 reads as under:-
“14. (1) The original owner or owners or their
legal heirs shall return the compensation
excluding solatium paid to them along with
simple interest payable on deposits from the date
of receipt of compensation by them till the date of
return of compensation by depositing the same in
the designated account as specified in the order
under clause 13 before taking possession of the
land.
(ii) In case (s) the original owner or owners or
their legal heirs, as the case may be, fail to
return the compensation in terms of sub-clause
(i), the same shall be recoverable as arrears of
land revenue from the returned land or from
any other immovable property.
(iii) The land shall continue to vest in the
Government till the return of compensation in
terms of clause 14, by the landowner to the
Government
15. Any party aggrieved by the decision of the
Government determining the compensation to the
land owner (s) on account of damages, if any,
sustained by him (them) due to acquisition of
land and/or the extent of compensation of being
provided alternate land [along with payment of
damages, if any, as applicable], in case of part
utilization of acquired land or in case of any
encumbrances created on/against the acquired
land or part thereof, they shall be entitled to make
a claim for the same before the Land Acquisition,
Rehabilitation and Resettlement Authority, as
notified by the State Government under Section
51 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 within a period of 90
days from the date of de-notification or from the
date of applicability of the present policy.
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The provisions of Limitation Act, Code of Civil
Procedure and the Evidence Act shall apply to
such proceedings.”
3. The background of the case makes it interesting
which is to be noticed, as to whether the State Government
as such having taken possession more than a decade earlier
can resort to the said amendment on account of being un-
successful in getting the market value as per the assessment
made by The Land Acquisition Collector (for short ‘the
Collector) upheld.
4. The notification in question under Section 4 of the
Land Acquisition Act, 1894 (for short ‘1894 Act’) was
issued on 15.01.2008, whereby land measuring 350.53
acres falling in villages Vaidwala, Khairpur and Nejadela,
Tehsil &District Sirsa was acquired for public purpose i.e.
for the development of residential and commercial sectors
Sector 21 and 22 (part), Sirsa. The Collector vide Award
dated 12.01.2011 had awarded a sum of 50 lakhs per acre.
The Reference Court further enhanced the market value to
83,18,000/- per acre vide Award dated 28.09.2013.
5. The matters were remanded in RFA No.583 of
2014 ‘Balbir Kaur Vs. State of Haryana and others’ on
04.09.2015. Resultantly, enhancement has now taken place
to 96,80,000/- per acre, vide Award dated 10.03.2017 by
the Reference Court while dealing with 116 reference
petitions.
6. The State resultantly, filed appeals and could not
get the benefit of interim protection and were asked to
deposit a sum of 84,70,000/- within a period of 3 months,
vide order dated 14.03.2018, while noting that the
landowners are already herein in appeal seeking further
enhancement. It is also to be noticed that the State has
chosen not to appeal against this interim order and whether
in the facts and circumstances on account of the litigation
not to its suitability and liking can take such a drastic stage.
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7. An application was also filed for extension of six
months for making the payment and indulgence was
granted by this Court in CM-6820-C1-2018 on 20.07.2018
and time was given till 31.08.2018 on the assurance given
by Mr. M.K. Ahuja, Director Urban Estate and Mr. Rajesh
Jindal, Chief Controller of Finance, HSVP, who were
present in the Court. Thereafter, the present application was
filed for recalling the order dated 20.07.2018 and for
placing on record the notification dated 10.01.2019
(Annexure R-1), whereby do-notification has been done by
virtue of Section 101A and the policy as noticed above.
8. Prima facie, this Court is of the opinion that vires
of Section will necessarily have to be gone into, keeping in
view the above background as under the 1894 Act also it is
a settled principle that once the land was acquired and
possession had been taken, the Government could not
withdraw from acquisition. Reference can be made to the
judgment of the Apex Court passed in State of M.P. Vs.
Vishnu Prasad Sharma, AIR 1966 SC 1593, Lt.
Governor of H.P Vs. Sri Avinash Sharma, AIR 1970 SC
1576, Balwant Narayan Bhagde Vs. M.D. Bhagwat, AIR
1975 SC 1767, Satendra Prasad Jain and others Vs.
State of U.P. and others, 1993 (3) RRR 597, Pratap Vs.
State of Rajasthan, (1996) 3 SCC 1, State of Kerala Vs.
M. Bhaskaran Pillai, (1997) 5 SCC 432, Mohan Singh
Vs. International Airport Authority of India, (1997) 9
SCC 132, Printers (Mysore) Ltd. Vs. M.A. Rasheed,
(2004) 4 SCC 460, Govt. of A.P and another Vs. Syed
Akbar‘ AIR 2005 SC 492, Mandir Shree Sitaramji @
Shree Sitaram Bhandar Vs. Land Acquisition Collector
and others, AIR 2005 SC 3581 and “Mahadeo (dead)
through L.Rs. and others v. State of U.P and others’
(2013) 4 SCC 524. Accordingly, the following questions
would arise:-
(i) As to whether the action of the State
Government is tainted with malafide action havingPage No.11
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failed to get the requisite relief of interim protection
by this Court and having failed to seek further
redressal.
(ii) Whether the policy dated 14.09.2018 is
sustainable, whereby under Clause 7, on account of
increase in acquisition cost due to Court orders, it
can drop acquisition process and whether the same is
beyond the scope of Section 101A.
(iii) Whether under Clause 14 (ii) of the
policy, the landowners can be forced to return the
compensation in terms of sub-Clause (i) once the
land has been acquired under the principle of
eminent domain and whether the State can recover
the amount of compensation as arrears of land
revenue alongwith Interest under Clause 14 (1).
(iv) Whether enforcement of Section 101A
can be sustained on account of complete
arbitrariness on behalf of the State which would be
violative of Article 300A of the Constitution of
India.
9. Resultantly, papers be put up before Hon’ble the
Chief Justice for referring the matter to the Hon’ble
Division Bench for consideration on the above legal
aspects.”
7. Resultantly, case been re-numbered as CWP-11498-2019
‘State of Haryana and others Vs. Nishabar Singh and others‘.
8. The Policy in question dated 14.09.2018 (Annexure P-9) is
called as” ‘The Policy for Return of Un-utilized Land’ under the provisions of
Section 101 A of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Haryana Amendment) Act, 2017″
and same reads as under:-
“1. In order to maintain transparency and
consistency in de-notifying the acquired land and toPage No.12
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regulate the procedure of such de-notification in
implementing the provisions of Section 101 A of the Right
to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement (Haryana
Amendment) Act, 2017, the present policy is being framed.
This Policy may be called, as ‘the Policy for Return
of Un-utilized Land’ under the provisions of Section 101 A
of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
(Haryana Amendment) Act, 2017.
2. This policy aims at prescribing procedure for de-
notifying land, acquired under the Land Acquisition Act,
1894 becomes unviable or non-essential on such terms as
may be decided by the State Government.
3. If the acquiring department is of the opinion that
the land acquired under the Land Acquisition Act, 1894
(Act No. 1 of 1894) is un-viable or non-essential for the
public purpose for which it has been acquired and that the
land should be de-notified from acquisition, it will inform
the Government about its opinion and seek approval of the
Government before proceeding further in accordance with
the provisions given hereafter.
4. The opinion of the acquiring department after
preliminary examination shall be referred to the concerned
District Level Sub-Committee, as specified in clause 5 or 6
below, not later than a month from its receipt.
5. In case, the acquired land is within jurisdiction of
one district, the sub-committee referred in clause 4 will be
headed by the Deputy Commissioner of the district and
shall consist of the following members:
(i) Sub Divisional Officer (Civil) of the concerned
Sub-Divisions
(ii) District Revenue Officer
(iii) Concerned Executive Engineer PWD (B&R)
(iv) Deputy Director, Agriculture
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(v) Senior Most Officer of the acquiring department
posted in the districts, as Member Secretary.
6.In case the acquired land falls within jurisdiction
of more than one district, the Committee shall be headed by
the senior most Deputy Commissioner out of the Deputy
Commissioners of the districts involved and shall consist of
the following members:
(i) Sub Divisional Officers of the concerned Sub-
Division.
(ii) District Revenue Officers of all the Districts.
(iii) Concerned Executive Engineers PWD (B&R) of
all the Districts.
(iv) Deputy Directors (Agriculture) of all the
Districts.
(v) Senior Most Officer of the acquiring department
posted in the districts and the senior most amongst
them as Member Secretary.
7. The District Level Sub-Committee constituted
under clause 5 or clause 6, as the case may be, shall while
examining the ‘opinion’ of the acquiring department
consider the following issues:
(i) if the acquired land has become non-viable land
or non-essential land.
(ii) extent of payment of compensation, if any, to the
land owner(s) on account of damages, if any,
sustained by them due to acquisition of land.
(iii) extent of compensation by providing alternate
land along with payment of damages, if any, in case
of part utilization of acquired land or in case of any
encumbrances created on/against the acquired land
or part thereof.
Explanation: –
(1) Unviable land means the whole or part of the acquired
land which has become unsuitable for utilization for the
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including any enormous enhancement in compensation
amount payable on such a land due to court orders, or
material or drastic change in policy of the Government
wherein such extenuating circumstances have emerged
where in the opinion of the Government to be recorded with
reasons, it would not be in public interest to continue with
acquisition, or change in socio-economic and geographical
factors in respect of the acquired land or for any other
reasonable cause.
(2) Non-essential land means the whole or part of the
acquired land which cannot be practically utilized for the
purpose for which it was acquired to any of the reasons
enumerated in explanation (1) or better alternatives have
become available for the project and it is not possible to
continue with any alternative public purpose in respect of
acquired land.
8.The District Level Sub-Committee, after
examining the matter as per clause 7 shall give its clear
recommendations and reasons as to whether the ‘opinion’
of the acquiring department referred to it for consideration
deserves to be accepted or not.
(i) If the District Level Sub-Committee decides to
recommend acceptance of the ‘opinion’ of the
acquiring department, it will also specify the terms
and conditions, if any, emerging from its
examination of the matter especially with regard to
sub-clauses (ii) and (iii) of clause 7 including
quantification of damages.
9. The District Level Sub-Committee will submit a report in
accordance with clause 8 to the Administrative Secretary of the
acquiring department who shall, after taking approval of the
Government place the matter before the Ministerial Sub-
Committee as specified in clause 10.
10. A Ministerial Sub-Committee shall be constituted to
decide on the matter placed before it in accordance with clause 9.
The Sub-Committee shall:-
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(i) consider and decide the matter in the manner
provided under clause 7.
(ii) be competent to take into consideration any other
factor not specified in clause 7 in arriving at the
decision as to whether de-notification of the
proposed acquired land should be allowed or not.
(iii) recommend terms and conditions as regards
compensation to be paid/provided in accordance
with these rules.
11. The report of the Ministerial Sub-Committee shall be
put up for consideration and decision by the Cabinet at the earliest
possible.
12. The Cabinet may upon consideration of the report of
Ministerial Sub-Committee, allow de-notification of the acquired
land.
13. In case the Cabinet allows de-notification of the
acquired land, the same shall be returned to the original owner or
owners or their legal heirs, as the case may be, after publishing a
notification in the Government Gazette by the concerned
Administrative Secretary of the Department. He shall also pass an
order in this regard and inform the original owners or their legal
heirs, as the case may be, about the decision to return the land.
14. (i) The original owner or owners or their legal heirs
shall return the compensation excluding solatium paid to them
along with simple interest payable on deposits from the date of
receipt of compensation by them till the date of return of
compensation by depositing the same in the designated account as
specified in the order under clause 13 before taking possession of
the land.
(ii) In case(s) the original owner or owners or their legal
heirs, as the case may be, fail to return the compensation in
terms of sub-clause (i), the same shall be recoverable as
arrears of land revenue from the returned land or from any
other immovable property.
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(iii) The land shall continue to vest in the Government till
the return of compensation in terms of clause 14, by the
landowner to the Government.
15. Any party aggrieved by the decision of the Government
determining the compensation to the land owner (s) on account of
damages, if any, sustained by him (them) due to acquisition of
land and/or the extent of compensation of being provided alternate
land [along with payment of damages, if any, as applicable], in
case of part utilization of acquired land or in case of any
encumbrances created on/against the acquired land or part thereof,
they shall be entitled to make a claim for the same before the Land
Acquisition, Rehabilitation and Resettlement Authority, as notified
by the State Government under Section 51 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 within a period of 90
days from the date of de-notification or from the date of
applicability of the present policy.
The provisions of Limitation Act, Code of Civil Procedure
and the Evidence Act shall apply to such proceedings.
16. This policy shall become effective from the date of its
notification.”
9. The perusal of the original file produced by the State for the
Sirsa acquisition would go on to show that only on account of an interim
order dated 14.03.2018 passed in RFA No.3816 of 2017 ‘State of
Haryana and another Vs. Nishabar Singh and others‘, since the State
had been directed to make payment of Rs.84,70,000/- on 20.08.2018, the
opinion was given that either to make payment as per the interim order or
to return the land to the landowners or give them alternative land as per
Section 101A while noting that the acquisition proceedings were complete
and it was left to the HSVP to take a decision. On 27.08.2018 the CCF,
HSVP proposed that the Award No.7 passed on 12.01.2011 may be
de-notified as the land is not financially viable for flotation of sectors. It
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was also noticed that out of Rs.254.51 crores, the amount of Rs.229.58
crores have been paid to landowners, which has to be recovered from the
landowners. Resultantly, in anticipation of approval of the Government, a
proposal was put that compensation amount already paid may be ordered
to be recovered within 30 days from the issuance of the notification and
publication and recovery be effected as arrears of land revenue.
Thereafter, the then Chief Minister had asked for the benefit of the advise
of the learned Advocate General. As per the opinion of the Addl.
Advocate General dated 04.12.2018, the notification was slightly to be
re-worded and amended, but no reference was made to the Policy dated
14.09.2018, which had been duly notified. On 13.12.2018, it was noted
that there was a procedure laid down as per the notification/policy dated
14.09.2018 and, therefore, ex-post facto approval of the
Government/Ministerial Sub-Committee may be obtained before issuing
the instant notification. On 20.12.2018, it was noted that the proposal was
given by the Hon’ble Chief Minister and as per the opinion of the
Advocate General, the modification be made, subject to the quantification
of the damages and legal compliance and resultantly, a draft notification
was put up. Resultantly, the de-notification was done on 10.01.2019.
Apparently, a representation was received regarding the process which had
been followed, that the landowners have no money to return and various
difficulties were being faced by them and that part of the land was falling
within the licensed area and again legal advise as such was sought
regarding the issue of the return of compensation. It was noticed that the
matter regarding compensation was pending before this Court in RFA
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No.3816 of 2017. Thereafter, since the land had already been de-notified,
on the opinion of the Advocate General the application was filed, after the
Chief Minister had perused the same.
Pleadings in CWP-26394-2021 ‘Khazan Singh and others Vs. State of
Haryana and others’.:
10. The acquisition of the land was for the development and
utilization of the land for 66KV & 220 KV Electric Sub-Station Sites and
other public utility purposes in Section 76 to 78 and Sectors 81 to 95,
Gurugram by the Haryana Urban Estates Department. The sites were in 9
villages and we are only concerned with village Shikohpur, Hadbast
No.160. The land measuring 18.37 was sought to be acquired falling in
Tehsil Manesar, District Gurugram by issuing notification dated
12.06.2012(Annexure P-1) under Section 4 of the 1894 Act. Section 6
notification was issued on 10.06.2013 (Annexure P-2) reducing the area to
15.5221 acres and vide Award No.81 dated 31.07.2013 (Annexure P-3) the
market value was assessed @ Rs.1,55,00,000/- per acre alongwith other
statutory benefits by the Land Acquisition Collector, Urban Estates,
Haryana. The possession was accordingly taken vide Rapat No.663 dated
31.07.2013 and infrastructure was raised on it in the form of construction
of sub-station and setting up of the Electric Towers and connecting it with
the wires and walling of the acquired area. Reference petition under
Section 18 of the 1894 Act was decided on 18.07.2019 (Annexure P-5)
and vide the said order the market value was enhanced to
Rs.18,38,17,146/- per acre while place reliance upon a judgment passed in
RFA No.5316 of 2014 ‘Pushpender Kumar and others VS. State of
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Haryana and another’ and the order of the Apex Court passed in Civil
Appeal Nos.11913 to 11945 decided on 05.09.2017. The landowners
filed representation for payment of the said amount on 26.07.2019
(Annexure P-6) and, thereafter, filed the execution proceedings. The
Director General, Urban Estates, Haryana vide letter dated 22.11.2019
(Annexure P-7) informed the Land Acquisition Officer, Gurugram and
Zonal Administrator, HSVP that the Government had decided to drop the
land from the acquisition proceedings and to return the land to the
landowners upon return of compensation to the account of HSVP.
Directions were issued that draft be prepared for dropping the land as per
the revenue record and Government orders and the same be sent to the said
office. Resultantly, the said letter dated 22.11.2019 (Annexure P-7) is also
subject matter of challenge alongwith the provisions of Section 101A of
the 2013 Act and the Policy dated 14.09.2018 (Annexure P-9).
Development by way of interim orders:
11. The Co-ordinate Bench while issuing notice of motion on
22.12.2021 had stayed the operation of the said order dated 22.11.2019.
The landowners also relied upon the noting portion of the file (Annexure
P-10) as to how the decision was taken dehors the policy in question,
while placing reliance upon Section 48 of the 1894 Act, which barred the
dropping of proceedings once possession has been taken and also placed
reliance upon the judgment of the Constitution Bench passed in Indore
Development Authority (supra).
12. Vide order dated 20.02.2023, we had asked the learned Chief
Secretary, Haryana as to why the regular first appeal was not filed, once
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the electric machinery worth Rs.42 crores had been put in place and once
the order of the Reference Court was subject matter of challenge in other
RFAs. The cost of Rs.58.33 crores was entailed for installation of 220 KV
GIS Sub-Station, which has not been energized, though two incoming
lines of 220 KV and down lines of 33 KV sub-station had also been
installed and the material was getting obsolete. An option was given to the
State whether some portion of the land can be put to some other public
purpose, if it is not economically feasible.
13. The Status report by Shri Sanjeev Kaushal, the then Chief
Secretary, Haryana dated 30.06.2023 has been filed, admitting that the
inventory of Rs.42,10,65,011/- was available and out of the same, the
equipment worth Rs.39,67,42,736/-was to be shifted to the other site. The
enhancement of compensation was to be Rs.568 crores, whereas costs of
re-location of the sub-station to the alternate site was Rs.123 crores and,
therefore, Rs.445 crores would be saved and it has been further reported
that the State did not want to use the impugned site for some other public
purpose and, thus, the justification was made.
14. Nothing was brought on record as to whether the policy had
been invoked or had been kept in mind. Resultantly, the original files
were also called for. The HVPN Ltd. had also been impleaded as
respondent No.7 on its application bearing CM-2656-CWP-2023 on
20.02.2023.
Pleadings of the State and HVPN Ltd.:
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15. Reply filed on behalf of respondent No.5-Land Acquisition
Collector, Gurugram would go on to show that as per the opinion of
District Attorney, Gurugram and the Legal Remembrancer, Haryana, it
was not a fit case for filing appeal and, therefore, no further appeal was
filed against the order of enhancement of compensation. It was pleaded
that the matter was placed before the Chief Administrator-cum-Chairman
Haryana Shehri Vikas Pradhikaran and, accordingly, vide memo
No.A1/2019/8625-8627 dated 12.11.2019 proceedings had been initiated
for dropping of the land from acquisition. Reliance was placed upon
Section 101A which had been inserted vide notification dated 24.05.2018
and had given power to the State to return the land and the landowners had
absolute right to claim any damages sustained by them due to dropping of
acquisition proceedings, if they were not intending to challenge the
decision of the Government. The judgment of the Constitution Bench in
Indore Development Authority (supra) was sought to be distinguished
while pleading that the provisions of Section 101A had not been
considered and that Section 24(1)(b) was not applicable. Reliance was
placed upon the judgment passed by the Madras High Court in Anti
Corruption Movement Vs. The Chief Secretary to Government of
Tamil Nadu, Co-operation, AIR 2015 (Madras) 119 wherein the
amendment made by the State had been challenged and provisions of
Section 48B had been upheld. Resultantly, fall back on the policy dated
14.09.2018 was made that the landowners have right to claim damages
sustained due to dropping of acquisition or de-notifying the land. It was
submitted that the enhancement amounting to Rs.44.24 crores per acre
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alongwith other statutory benefits was too high and unacceptable for the
Government.
16. The beneficiary department-HVPNL held out that the
allotment which was made vide memo dated 09.12.2013 and creation of
the 220 KV with installed capacity of 2×100 MVA, 220/33 KVT/s was
planned and awarded to M/s Kalpataru Power Transmission Limited,
Noida on 09.12.2017 on turnkey basis. On the revised possession, 11.20
acres of land was handed over to HVPNL by HSVP vide letter dated
24.05.2017. The work of the sub-station was completed to the extent of
95%. On account of the enhancement by the Reference Court on
18.07.2019, a meeting had been conveyed on 22.11.2019 under the
Chairmanship of the Principal Secretary to the Government of Haryana,
Town & Country Planning Department, wherein a decision was taken to
drop the land from acquisition proceedings in Sector 77 and one 66 KV
Electric Sub-Station in Sector-83, Gurugram. The sub-station was never
commissioned subsequently and a decision was taken to dismantle the sub-
station by HVPNL and due to operation of the interim order, the
dismantling had not been carried out. It was admitted that costs of
Rs.58.33 crores for establishment of sub-station had taken place and
expensive equipment installed was becoming obsolete. The costs as such
was to be shared in 50:50 ratio between HVPN and HUDA and, thereafter
the market price had gone to Rs.500 crores and the feeding transmission
lines would come to Rs.616 crores, which would cause a financial burden.
The sub-station would be constructed on the other site allotted by HSVP
vide allotment letter dated 30.06.2016.
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17. The original file produced by the State counsel would go on
to show that on 19.11.2019 after the proposal was put that since in the
connected matter of Pushpender Kumar (supra), the costing of the
acquisition would come to Rs.44 crores per acre, the HSVP being the
custodian of the acquired land, would also be required to comment. On
20.11.2019, Shri A.K. Singh, PSTCP recommended that acquisition, in
principle, be dropped and land be returned to the landowners and suitable
sites be identified as per revised norms. The Gurugram Municipal
Development Authority was to be informed of the exercise, which order
was blanketly approved by the then Chief Minister on 21.11.2019 without
there being any reference to the policy in question or any reference to the
Cabinet. Resultantly, the letter dated 22.11.2019 was thus issued, leading
to the filing of the writ petition and passing of the interim orders.
Facts and Pleadings of CWP No.9622 of 2019 ”Rajinder Pal Singh
and others Vs. State of Haryana and others’.
18. Challenge herein is to the notification dated 03.08.2018
(Annexure P-13) published in the official gazette, whereby the acquisition
of the land of the landowners was de-notified. The State had earlier issued
notification dated 20.09.2004 (Annexure P-1) under Section 4 of the 1894
Act read with the emergency provisions under Section 17 of the 1894 Act
for acquiring 308.347 acres of land various villages including Village
Khera, Tehsil Jagadhri, District Yamuna Nagar. The public purpose was
for construction of Shahbad-Nalvi Irrigation Scheme (Shahbad Feeder).
Section 6 notification was, thereafter, issued on 18.03.2005 and acquisition
proceeding was subject matter of challenge in CWP No.20042 of 2004
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‘Jatinder Pal Kaur & others Vs. State of Haryana &others‘ and the
lead case was CWP-5078 of 2005 ‘Mani Ram & others Vs. State of
Haryana & others’, which was dismissed on 26.09.2005 (Annexure P-2).
The acquisition, therefore, had been upheld for the public purpose, which
had been initiated for recharging the water table. The said order was
affirmed by the dismissal of the SLP No.26503 of 2005 on 06.01.2006
(Annexure P-3). In the meantime, the Award came to be passed on
02.12.2005 and led to the filing of the Reference Petitions under Section
18 of the 1894 Act by the landowners. The District & Sessions Judge,
Yamuna Nagar assessed the market value @ Rs.8 lakhs per acre for chahi
land and Rs.14 lakhs per acre for prime land. The landowners preferred
RFA No.3078 of 2010 and resultantly, the market value of the land was
assessed @ Rs.2887/- per square meter (Rs.1,16,83,000/- per acre) in a
bunch of cases, lead case of which RFA No.3356 of 2010 ‘State of
Haryana and another Vs. Santokh Singh and others’decided on
05.05.2016 and was followed by a decision in RFA No.3894 of 2010
‘Sardool Singh and others Vs. State of Haryana and others’on
19.01.2017. The State challenged the said quantification by way of filing
SLP No. 14338-14372 of 2018 ‘State of Haryana and others Vs.
Sardool Singh and others‘, which was filed against the judgment dated
19.01.2017 passed in RFA No.3894 of 2010 ‘Sardool Singh and others
Vs. State of Haryana and others’ and other connected matters. The Apex
Court on 15.05.2018 (Annexure P-10) directed that the State would
deposit Rs.50 lakhs per acre before the Reference Court, so that the
landowners could withdraw the same. The said order reads as under:-
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“Delay condoned. Issue notice.
There shall be stay of operation and implementation
of the impugned Judgment on condition that the petitioners
provisionally deposit at the rate of Rs. 50 Lakhs per acre,
which is inclusive of all statutory benefits, within a period
of three weeks from today, before the Reference Court. On
such deposit, it will be open to the claimants before the
Reference Court to withdraw the same.”
19. Meanwhile, after getting assent of the President on
09.05.2018 by Haryana Act No.21 of 2018, on 24.05.2018 the notification
of the State amendment was done, incorporating Section 101A with
retrospective effect from 01.01.2014.
20. Vide the impugned notification dated 03.08.2018 (Annexure
P-13), the Government withdrew from the acquisition invoking the power
under Section 101A and retained only 5.906 acres, which was for the
purpose of construction of a road. The de-notification of the land of the
villages as given in the table T2 of the said notification provided that any
landowner to whom the land is to be returned within a period of 30 days of
publication of the notification, can submit his claim in writing before the
Land Acquisition Officer, Ambala to complete the process of reversion of
the land. The total amount already paid by the Government to the
landowners was to be returned alongwith such interest as decided by the
Government before delivery of the possession. The landowners, however,
were entitled for compensation on account of damages sustained by them
as a result of aforesaid land acquisition on such rates as fixed by the
Government. Thereafter, on 17.08.2018, the Haryana Government
withdrew its SLP Nos.14338-14372 of 2018 (Annexure P-14). The said
order reads as under:-
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“These are the applications for withdrawal of the
Special Leave Petitions, which are taken on record. The
petitioners are directed to file the same in the Registry.
Permission to withdraw the Special Leave Petitions
is granted.
The Special Leave Petitions are, accordingly,
dismissed as withdrawn as having become infructuous.”
21. Similarly, another set of SLPs were also withdrawn on
03.10.2018 (Annexure P-16) leaving the landowners in a lurch. The
landowners filed objections dated 28.08.2018 (Annexure P-15) against the
de-notification and served a legal notice and claimed damages as such
sustained by them and also asked the respondents to remove the electric
power line which was installed alongside the canal and petitioned to
restore the land to its original condition by filling it with fertile earth and
by way of leveling and make it cultivable, apart from leaving their right as
such open to challenge the said de-notification process. Resultantly, the
arbitrary exercise of power and the hardship as such of the expropriatory
legislations twice for the same piece of land and to return the acquired land
after a period of 14 years despite utilization since the year 2011 was
challenged on the ground of arbitrariness. The provisions of Section 107
was also referred to regarding the power of said legislation regarding the
entitlement of the compensation then payable and for re-settlement, apart
from the procedure resorted to under Article 254(2) of the Constitution,
while placing reliance upon the judgments of the Apex Court passed in
Yogendra Kumar Vs. State of Bihar, (2016) 3 SCC 183 and
Innoventive Industries Limited Vs. ICICI Bank & another, (2018) 1
SCC 407.
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22. The stand of the State in the written statement filed by
respondent No.2 was that the President has given the assent on 09.05.2018.
It was admitted that under the 1894 Act, there was a bar under Section 48
and a restriction to release the land, once the possession has been taken. It
was admitted that procedure has been completed under the old Land
Acquisition Act, 1894, which was being revived and allowed under the
provisions of Section 24(2) of the 2013 Act. The un-viability of the
acquisition because of the enormous cost of the land had saddled the State
Government with a huge liability and, therefore, it did not want to
continue with the acquisition.
Arguments on behalf of the landowners:
23. The argument raised on behalf of Mr. Anupam Gupta, Senior
Counsel thrust up the issue of Article 254 (2) of the Constitution,
therefore, to contend that once there was inconsistency between the laws
made by the Parliament and the laws made by the Legislature of the State
and that once the proper assent of the President had not been taken under
Clause(2) for the law made by the Parliament, it would prevail over the
law made by the Legislature of the State and would not be as such saved.
It was pointed out that the Bill had been sent to the Central Government on
24.03.2017 and the assent had been given to it by the President on
09.05.2018. The Ministry of Agriculture as per the original files produced
had given its express reservation on 11.08.2017 regarding the conflict
between the Central Act and the proposed amendment by the State. On
16.03.2018, the Department of Legal Affairs had also expressed its
reservation in similar fashion and similarly, on 03.04.2018 the Ministry of
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Home Affairs had asked the State to re-visit the said provision.
Resultantly, Mr. Gupta has placed reliance upon the judgment of the
Constitution Bench in Kaiser-I-Hind Pvt. Ltd. and another Vs. National
Textile Corporation (Maharashtra North) Ltd. and others, (2002) 8
SCC 182 to contend that there has to be consideration of the relevant
material and it was not an idle formality and the President had to be
apprised of the reason as to why his assent was sought. It was,
accordingly, argued that while falling back on the judgment of the Apex
Court passed in Gram Panchayat of Village Jamalpur Vs. Malwinder
Singh and others, (1985) 3 SCC 661, that the law made by the Parliament
could not have been nullified in the manner in which the State has done.
24. It was also pointed out from the Constitution Bench judgment
of the Apex Court in Indore Development Authority (supra) that the
State had projected that once the possession has been taken and even if the
land has not been utilized, the land cannot be restituted to the owner after
the stage of possession is over, which was the legislative intent of the
Central Act of 2013. It was, accordingly argued that where compensation
has been accepted and possession handed over and projects have come up
in part and even if possession was not taken, it would be against public
policy to give the land back to the landowners. The fact that concluded
acquisitions could not be reopened at the hands of the State and the whole
intent of the judgment of the Constitution Bench was to save all the
acquisitions of 1894 and now the State could not hold out to the contrary.
While placing reliance upon Article 300A of the Constitution incorporated
under Chapter-IV, it was argued that no person can be deprived of his
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property save by authority of law and, accordingly, contended that it may
not be a fundamental right but a Constitutional right which has been read
as the right to shelter and employment.
25. Reliance upon the judgment passed in K.T. Plantation
Private Limited Vs. State of Karnataka, (2011) 9 SCC 1 was placed,
wherein it was held out that the legislation providing for deprivation of
property should be just, fair and reasonable and could be questioned by
way of judicial review. Any such provision which was not reasonable and
which was arbitrary or excessive was accordingly stressed on and that
impugned provisions of Section 101A and the policy as such were
challenged under the rule of eminent domain, and if there was any
violation which undermines the basic structure and the democratic
principles of the Constitution, it would be a good ground to strike down
the statute. It was, accordingly, argued that there is no other amendment
by the Parliament in the 2013 Act apart from the State amendment and the
manifest arbitrariness in introducing the said amendment was highlighted
while referring to Question No.(iv) which had been formulated in the
reference order, as reproduced above. It was accordingly, pointed out that
after the land had vested by issuing of a declaration under Section 6 (3) of
the 1894 Act, the same was conclusive evidence as the need was made out
as held out in Smt. Somawanti and others Vs. State of Punjab and
others, AIR 1963 SC 151. Once there was a declaration made with
conclusiveness and satisfaction that the land was needed for the public
purpose, the same was established and complete. Once such an exercise
had been completed, the Government could not, by a self-serving
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capricious decision, which was a one-sided decision, come to the
conclusion that the land was not required for the intended public purpose,
without taking into consideration the interest of the landowners, once it
stood vested with the State. It was, accordingly, contended that once the
land stood vested, by passing of the Award on 12.01.2011 (in the Sirsa
acquisition), the acquisition proceedings could not be dropped 8 years later
in the year 2019 having taken possession vide Rapat.
26. Reliance was also placed upon the judgment of passed in
Shayara Bano Vs. Union of India and others, (2017) 9 SCC 1, wherein
the Constitution Bench was dealing with the issue of Triple Talaq,
highlighting the arbitrary power and the fact that rule of law would mean
the exercise of powers of Government which would be conditioned by law
and equality before the law or the equal subjection of all was stressed
upon, while referring to the judgment passed in Indira Nehru Gandhi Vs.
Raj Narain, AIR 1975 SC 2299. Resultantly, it was contended that
doctrine of arbitrariness had been highlighted in Maneka Gandhi Vs.
Union of India, (1978) AIR 597 and can be used to negate the legislation,
subordinate legislation and executive action. The manifest arbitrariness
was pointed out that the policy of return of land was a one-way traffic and
a “farman” and decree without any provision of hearing being provided to
the landowner, which was the basic requirement and also given under
Section 5A of the 1894 Act and had been noticed in detail in the case of
Surinder Singh Brar and others etc. Vs. Union of India and others,
2012 (12) SCR 1077. The dignity to the owner of the land acquired and
the lack of balancing and the act by the State being “princely” in nature
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and not of a democratic State was stressed upon and the fact that it was a
self-serving provision. Reliance was also placed upon the judgment of the
Constitution Bench in Joseph Shine Vs. Union of India, (2019) 3 SCC
39 to contend that the constitutional validity of Section 497 IPC had been
rightly held out to be discriminatory and arbitrary, as it treated a married
woman as a property of her husband and it was test of a manifest
arbitrariness which was inconsistent with the ethos of the Constitution,
which led to the striking down of the said provision.
27. Ms. Sidhi Bansal and Ms. Ridhi Bansal, counsel for the
petitioners in CWP-26394-2021 highlighted the fact that retrospective
power had been exercised to bring the amendment into force from
01.01.2014 and pointed out that possession had been taken on
31.07.2013(Annexure P-3) when the Award was passed and by Rapat
Roznamcha No.663 and the land stood vested in the State, in view of the
provisions of Sections 16 and 48 of the 1894 Act. It was, accordingly,
pointed out from Section 24(1) (b) of the 2013 Central Act that it
contained a notwithstanding non-obstante clause provision and specifically
provided that the 1894 Act would govern the proceedings. Sub Clause 24
(2) provided other notwithstanding provisions, which provided the
applicability of the 2013 Central Act and which was also subject matter of
controversy before the Constitution Bench in Indore Development
Authority (supra). It was, accordingly, contended that there was no such
specific provision under Section 101 for dropping of land acquired under
the 1894 Act and therefore, Section 24(1) (b) would prevail over the
proceedings and, therefore, in view of Section 101 the only power to
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return was of un-utilized land acquired under the 2013 Central Act and it
was silent as such qua the Act of 1894. The said provisions had also been
noticed by the Apex Court in Indore Development Authority (supra)
while repelling the argument that the said provision only dealt with the
acquisitions made under the 2013 Act.
28. It was, thus, pointed out that once Section 48 of the 1894 Act
itself bars the de-notification of the land of which possession has been
taken and, therefore Section 101A was in contradiction to the acquisition
proceedings initiated under the 1894 Act which would govern, as per
Section 24(1) (b) of the 2013 Central Act. The State could not as such
choose to apply it arbitrarily and whimsically as and when it so felt. It
was, accordingly contended that once an award had been made under the
1894 Act, the proceedings would be governed by the said Act. Reference
was made to the provisions of policy in question to point out that under
Section 101A issue was regarding public purpose for which the land was
becoming unviable or non-essential and said terms had not been defined
and, thus, also would come under the ambit of arbitrariness.
29. The policy in question had been termed the policy for the
“Return of Un-utilized Land” and there was no mention of the same
regarding non-viability of the public purpose for which it was acquired.
Reliance was placed upon Article 31A of the Constitution regarding the
extinguishment of the right by the State by way of acquisition. It was
pointed out that the dropping of acquisition was on account of the
enhancement of the land price, as apparently as per Clause 7 of the Policy,
which was further to be done by a District Level Committee as constituted
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under Clause 5 & 6. It was a one-way traffic without the landowner being
kept in the picture and the explanation also further provided that the un-
viable reasons could be the enormous enhancement in compensation
payable due to Court orders or better alternative having become available
for the project. It was further pointed out that policy was in force but was
never followed and the report of the District Level Committee had to be
submitted to the Administrative Secretary of the acquiring department
after taking approval of the Ministerial Level Sub-Committee, as per
Clause 9 and thereafter, it was only for the Cabinet to take a call and allow
the de-notification, as per Clause 12. Neither any Cabinet approval had
been taken and only the Chief Minister had given his approval which
would be clear from Annexure P-10.
30. Reference was also made to the communication dated
22.11.2019 (Annexure P-10) to submit that there was no reference to the
policy and the affidavit filed by the Chief Secretary, which pointed out
about the decision dated 20.11.2019. It was thus, submitted that there was
no redressal provided except under Clause 15 before the Land Acquisition,
Rehabilitation and Resettlement Authority as notified by the State
Government under Section 51 of the 2013 Act, which was limited to the
issue of compensation payable. The onerous condition to return the
compensation after excluding solatium alongwith simple interest from the
date of the receipt of the compensation till the date of return of
compensation by depositing the same in the designated account as per
Clause 14 had been provided. The right of the State to enforce the
recovery by way of Land Revenue Act to recover the compensation from
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the landowners or their legal heirs was stressed upon to point out the
manifest arbitrariness to recover the amount from the unwilling
landowner, who would have invested elsewhere for the compensation
received and might not be interested in getting the land back and the one
sided policy in favour of the State which was using the sledge hammer
against the landowner not once but on two occasions.
Arguments by the State in Defence
31. Mr. Ankur Mittal in defence has submitted that provisions of
Section 101 were introduced on account of the fact that un-viable or non-
essential were important factors as on various accounts the public purpose
could not be fulfilled and, therefore, the enhancement of land value could
be one of the reasons. It is, accordingly, pointed out from the policy in
question that it could be due to act of nature, material or drastic change in
policy of the Government or change in socio-economic and geographical
factors etc. It was contended that certain directions due to quashing of the
acquisition proceedings by virtue of Court order and there would be reason
when the public purpose was frustrated and it was not viable and the State
was not in a position to carry out the said public purpose.
32. It was further contended that the proceedings could be
dropped under the 1894 Act at several stages including Section 4, 6 and
even if the Award was not passed under Section 11A within a period of 2
months and vesting would only take place on account of the possession of
the land after making an Award under Section 16. The argument raised by
Mr. Mittal was that the section could only be struck down, on account of
lack of legislative competency and, if there is any violation of Part-III of
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Constitution, as per the settled principles. It was submitted that Entry 42
of the concurrent list as such gave the power to the State as mentioned in
the same as acquisition and requisitioning of property and, therefore, the
State had the power to enact the provision and there was no inconsistency
nor any repugnancy and Article 254(2) would protect the amendment
made. It was further submitted that the principle of manifest arbitrariness
has only been propounded thereafter, in view of the law laid down in
Shayara Bano (supra). Reference was made to the judgment passed in
the case of K.T. Plantation (supra)to contend that only if both the laws
were fully inconsistent or absolutely irreconcilable and it was impossible
without disturbing the other, or conflicting results were produced, the
Court would step in and, therefore, the examination had to be done from
that limited aspect. Attention was also drawn to the judgment passed in
Deep Chand and others Vs. State of U.P. and others, AIR 1959 SC 648
that there should a direct conflict between the two provisions and also
brought to our notice the judgment passed in M. Karunanidhi Vs. Union
of India and others, (1979) 3 SCC 431 that there had to be a clear and
direct inconsistency between the Central Act and the State Act and the
presumption always lay in favour of the constitutionality of a statute. It
was submitted that nothing had been argued that two enactments contained
any inconsistency and irreconcilable condition and, therefore, this Court
would be loath as such to interfere. While placing reliance upon the
judgment passed in West Uttar Pradesh Sugar Mills Association and
others VS. State of Uttar Pradesh and others, (2020) 9 SCC 548, Mr.
Mittal contended that the dominant intention of both the enactments had to
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be seen and, therefore, the provisions as such were in fine tune with the
Central Act.
33. It was further submitted that there was no provision contrary
to the 2013 Act and neither there was any pre-occupied field nor any
operational incompatibility, which would compel this Court to strike down
the provision. Reference was made to Section 93(3) of the Central Act
2013 which provided that in cases of incomplete acquisitions where the
Government withdraws from acquisition and possession of land had not
been taken, the Collector was to determine the amount of compensation
due to the damage suffered and it was in such similar circumstances by
virtue of the provision under Section 101A, the State Government would
look after the said aspect. It was submitted that this was pari materia to
Section 48 of the 1894 Act, which also provided for determination of the
compensation due to the damage suffered by the owner in consequence of
the notice or of any proceedings there under. It was, accordingly, argued
that misuse of a section is not a ground to hold that the provision is bad
and merely on account of the policy which was bad, the provisions could
not be struck down. Mr. Mittal has, however, conceded the fact that the
policy as such was in derogation of the principal object of the section and
was not in a position to defend the same. It is to be noticed also a year
earlier the State had undertaken to withdraw the said policy dated
14.09.2018 before the Co-ordinate Bench, but has not done so till now,
which will be discussed in Question No.(iii). Resultantly, reference was
made to judgment of the Apex Court passed in Zameer Ahmed Latifur
Rehman Sheikh Vs. State of Maharashtra and others, (2010) 5 SCC
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246 to contend that both the enactments could stand together and there was
no such conflict between the two. Fall back was made on the judgment
passed in Vijay Kumar Sharma and others Vs. State of Karnataka and
others, (1990) 2 SCC 562, which was a case where the vires of the Motor
Vehicles Act as amended by the State of Karnataka was subject matter of
consideration in context to the enforcement of Motor Vehicles Act, 1988.
It was, accordingly, argued that ascertainment of the dominant object of
two legislations had to be kept in mind and the pith and substance of the
objects and reasons of the enactment had to be seen once both the
legislations are substantially on the same subject. The State occupied field
and the operational incompatibility were highlighted and held that merely
on account of the word “notwithstanding” used in Section 24 would not as
such block the field of Section 101A and act as a bar. Reliance was placed
upon Section 48 of the 1894 Act and relevant judgments to contend that
even if the exercise of power by the State was arbitrary, the same could be
set aside, but it was not a ground to hold that the provisions are bad. It
was, accordingly, submitted that Section 101 was a discretionary provision
and one of the two conditions had to be fulfilled, which was within the
competence of the State to exercise the power to de-notify the land, which
could be the issue of non-viability or non-essentiality.
34. Reliance was, accordingly, placed upon the judgment passed
in Hari Ram & another Vs. State of Haryana and others, (2010) 3 SCC
621 to contend that the power was given under the statutory provision to
withdraw before possession and it did not provide any particular procedure
for withdrawal from acquisition. While placing reliance upon the
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judgment passed in Special Land Acquisition Officer, Bombay and
others Vs. M/s Godrej and Boyce, (1988) 1 SCC 50, it was pointed out
that the State has ample power and the Apex Court as such had held that if
the State had withdrawn from the acquisition, no mandamus could be
issued. While referring to judgment passed in V. Chandrasekran and
another Vs. Administrative Officer and others, (2012) 12 SCC 133 it
was submitted that the land vested in the State could be divested, if a
statutory amendment had been made and as has been noticed in the said
judgment and, therefore, the said provisions were justified. While placing
reliance upon the judgment passed in Tamil Nadu Housing Board Vs.
Keeravani Ammal and others, (2007) 9 SCC 255, it was contended that
any bad or capricious action taken by the executive would not make the
provision bad and the action taken, could be struck down and on the said
principle this Court would not strike down the provision, keeping in view
the facts and circumstances of the cases projected and examples given.
Reliance was also placed upon the judgment passed in Mafatlal
Industries Ltd. Vs. Union of India, (1997) 5 SCC 536 regarding the
principle that a power under Article 226 has to be exercised, to effectuate
the regime of law and not for abrogating it and that mere possible views of
usage of a provision by a person incharge would not be a ground to strike
down the provision.
35. The lack of operational incompatibility in light of Section
24(1)(b) was sought to be highlighted and, thus, it was submitted that
Section 24(1)(b) contemplates the word proceedings shall continue under
the 1894 Act, if it has not been repealed. It was, accordingly, argued that
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it was only relate to pending proceedings. Reference was made to the
word proceedings under Section 24(2) referred to in the judgment of the
Constitution Bench in Indore Development Authority (supra) and
accordingly, while placing reliance upon the provisions of Section 114 of
the Central Act 2013 the repeal clause of the Land Acquisition Act, it was
argued that Section 6 of the General Clauses Act, 1897 (for short ‘1897
Act’) would also come into force. Once the Award had been passed then
the proceedings stood concluded, as compensation was deposited and
possession had been taken and, therefore, it was submitted that thereafter,
merely if a reference was pending, it would not relate to the proceedings
under Section 24(1)(b).
36. It was further contended that Section 114(2) provided that
save as otherwise provided in this Act the repeal under sub-Section (1)
shall not be to prejudice or affect the general application of Section 6 of
the General Clause Act, 1897. Thus, the whole intention was on Section
101 to de-notify the land which became unviable or non-essential under
1894 Act. Resultantly, it was argued that non-obstante clause and Section
24(1) (b) which have been referred to by the counsel for the petitioners had
to be given a restrictive meaning and the intent was to be gone into and
could not override Section 101A. Reliance was placed upon the judgment
passed by the Apex Court in Dominion of India and another Vs.
Shrinbai A. Irani and another, AIR 1954 SC 596 in this context that the
said non-obstante clause was to be read as clarifying the whole position
and incorporated by way of abundant caution and not by way of limiting
the ambit and scope of the operative part of the enactment. Similarly,
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while placing reliance upon the judgment passed in R.S. Raghunath Vs.
State of Karnataka and another, (1992) 1 SCC 335, it was argued that
the enacting part of the Section which provided for the fair construction of
the words used according to their natural and ordinary meaning is to be
seen and non-obstante clause is not to be understood as operating to be cut
down to resorting to the same. The words of the enactment being clarified
for clear interpretation on the plain and grammatical construction had to be
seen and non-obstante clause had to be seen by limiting the ambit and
scope.
37. While placing reliance upon the judgment passed in A.G.
Varadarajulu and another Vs. State of Tamil Nadu and others, (1998)
4 SCC 231, it was submitted that search had to be made with a view to
determine which provision answers the description and which does not,
and the scope of the provision has to be construed strictly. Resultantly,
reference was made to the judgment passed in Geeta Vs. State of U.P.
and others, (2010) 13 SCC 678 that intent of the legislature must be
interpreted in line with the scheme of the Act and the purpose for which it
was enacted. Accordingly, it was contended that restricted meaning has to
be given under Section 24(1)(b) and it could not override Section 101A
and does not fall under any manner to ascertain the operational
incompatibility. The argument that repeal by implication was one of the
grounds for striking down would not be applicable and Section 101A
added alongwith Section 24 was because of practical difficulties by the
State legislature, which was competent to enact the law under Entry
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No.42. Reliance was placed upon the objects and reasons of the bill
introduced in furtherance of the said argument.
38. It was, accordingly, argued that objects and reasons of the Bill
as such are not liable to be taken into consideration and the argument
which has been sought to be raised was that there was a reference of
Section 101A while making a major amendment, which was in
contradiction to the 2013 Central Act. It was further contended that the
limited extent to which the objects and reasons could be examined was in
context to see the validity of the provision. Merely, because the manner in
which the events had unfolded would not impute any inference, which
could be put on the legislature and the problems were being faced on
account of lapsing provision and the amendment had been made. Reliance
had been placed upon the judgment passed in Aswini Kumar Ghose and
another Vs. Arabinda Bose and another,(1952) 2 SCC 237to contend
that the statement of objects and reasons appended to the Bill should be
ruled out as an aid to the construction of a statute and the objects thereby
sought to be achieved may not remain the same throughout till the Bill
emerges from the House as an Act of the Legislature. The construction of
an Act and the debates have to be excluded from consideration and the
statement of objects and reasons annexed to a Bill were not to be referred
to while laying out a challenge to the Constitutional validity. While
referring to the judgment passed in State of West Bengal Vs. Subodh
Gopal Bose, (1953) 2 SCC 688 it was argued that what actuated the
sponsor of the Bill and the urgency of the evil which was sought to be
remedied, were kept to be in mind.
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39. While relying upon the judgment passed in Jia Lal Vs. The
Delhi Administration, AIR 1962 SC 1781, it was submitted that the
objects and reasons could not be considered as admissible in evidence for
construing the validity of statute and said proceedings could not be called
in aid for constructing a section. The judgment in K.S. Paripoornan Vs.
State of Kerala, (1994) 5 SCC 593 was also referred to, wherein it has
been held that the statement of objects and reasons appended with the Bill
were to be seen for limited purpose of understanding the background and
the state of affairs leading to the legislation and it could be used as an aid
for the construction of the statute. While relying upon the judgment in
State Bank’s Staff Union (Madras Circle) Vs. Union of India and
others, (2005) 7 SCC 584, it was argued that the amendment of the statute
by its ordinary language, if being obscure or ambiguous, then the objects
and reasons given were to be examined and it was not appropriate for the
judicial preserve to invalidate a valid law competently made and smooth
balance built with the delicacy had to be maintained. While relying upon
the judgment passed in State of Tamil Nadu and others Vs. K. Shyam
Sunder and others, (2011) 8 SCC 737, it was contended that it could not
be for ascertaining the condition which prevailed at that time which
necessitated the making of the law. The reasons may be relevant to find
out what was the objective of any given statute passed by the legislature
and the mischief which was sought be remedied by the statute was to be
appreciated with true intent of the legislature and objects stated to be
achieved by enactment of the particular act.
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40. Resultantly, the judgment of the three Judges Bench in Union
of India and others Vs. Exide Industries Limited and another, (2020) 5
SCC 274 was relied upon, whereby the Apex Court was examining the
amendment in the Income Tax Act as inserted by the Finance Act, 2001
that it was settled canon of interpretation to deduce the true intent of the
legislature and the objects and reasons would be useful in understanding
the import of an enacted provision. However, in the absence of any
ambiguity, fall back on the same was not required. The proactive
examination by the Court offering multiple avenues and methods to
achieve the ultimate purpose of interpretation and the presence or absence
of objects and reasons had no impact upon the constitutional validity of a
provision as long as the literal features of the provision enabled the Court
to comprehend its true meaning with sufficient clarity. Accordingly, it was
contended that malice and malafide intent cannot be attributed to the
legislature while placing reliance upon the judgment passed in K.C.
Gajapati Naryan Deo Vs. State of Orissa (1953) 2 SCC 178; K.
Nagaraj and others Vs. State of Andhra Pradesh and another, (1985) 1
SCC 523; G.C. Kanungo Vs. State of Orissa, (1995) 5 SCC 96; State
Bank’s Staff Union (supra); State of Himachal Pradesh Vs. Narain
Singh (2009) 13 SCC 165; State of Kerala and another Vs. Peoples
Union for Civil Liberties Kerala State Union and others, (2009) 8 SCC
46 and K. Shyam Sunder (supra).
41. Relevant provisions of Articles 21, 39 (a)&(b), 254 and 300A
of the Constitution of India read as under:-
21.No person shall be deprived of his life or personalliberty
except according to procedure established by law.
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xxxxxxxxxxxxxxxxxxxxxxx
39.The State shall, in particular, direct its policy towards
securing–
(a) that the citizens, men and women equally, have the right
to an adequate means of livelihood;
(b) that the ownership and control of the material resources
of the community are so distributed as best to subserve the
common good;
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
254. (1) If any provision of a law made by the Legislature
of a State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the
existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void.
(2) Where a law made by the Legislature of a State ***
with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been
reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect
to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of
the State.
xxxxxxxxxxxxxxxxxxxxxxx
300A. No person shall be deprived of his property save by
authority of law.”
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42. Relevant provisions of Section 6 (3), Section 16 and Section
48 of the 1894 Act read as under:-
“6 Declaration of intended acquisition
xxxxxxxxxxxxxxxxxxxxxxxx
(3) The said declaration shall be conclusive evidence that
the land is needed for a public purpose or for a company, as
the case may be; and, after making such declaration, the
[appropriate Government] may acquire the land in manner
hereinafter appearing.
16. Power to take possession. – When the Collector has
made an award under section 11, he may take possession of
the land, which shall thereupon [vest absolutely in the
[Government]], free from all encumbrances.
48. Completion of acquisition not compulsory, but
compensation to be awarded when not completed.-
(1) Except in the case provided for in section 36, the
Government shall be at liberty to withdraw from the
acquisition of any land of which possession has not been
taken.
(2) Whenever the Government withdraws from any
such acquisition, the Collector shall determine the amount
of compensation due for the damage suffered by the owner
in consequence of the notice or of any proceedings there
under, and shall pay such amount to the person interested,
together with all costs reasonably incurred by him in the
prosecution of the proceedings under this Act relating to the
said land.
(3) The provision of Part III of this Act shall apply,
so far as may be, to the determination of the compensation
payable under this section.”
43. Similarly, relevant provisions which have to be kept in mind
of Section 24(1)(a) (b) and Section 99, Section 101 and Section 103, 107,
108 of 2013 Act, read as under:-
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” 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.
xxx xxx xxx xxx
99. No change of purpose to be allowed.– No
change from the purpose or related purposes for
which the land is originally sought to be acquired
shall be allowed.
Provided that if the land acquired is rendered
unusable for the purpose for which it was acquired
due to a fundamental change because of any
unforeseen circumstances, then the appropriate
Government may use such land for any other public
purpose.
101. Return of un-utilised land.- When any land acquired
under this Act remains un-utilised for a period of five years
from the date of taking over the possession, the same shall
be returned to the original owner or owners or their legal
heirs, as the case may be, or to the Land Bank of the
appropriate Government by reversion in the manner as may
be prescribed by the appropriate Government.
Explanation.–For the purpose of this section, “Land
Bank” means a governmental entity that focuses on the
conversion of Government owned vacant, abandoned, un-
utilised acquired lands and tax-delinquent properties into
productive use.
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103. Provisions to be in addition to existing laws.–The
provisions of this Act shall be in addition to and not in
derogation of any other law for the time being in force.
104 to 106. xxx xxx xxx
107. Power of State Legislatures to enact any law
more beneficial to affected families.– Nothing in
this Act shall prevent any State from enacting any law
to enhance or add to the entitlements enumerated under
this Act which confers higher compensation than
payable under this Act or make provisions for
rehabilitation and resettlement which is more beneficial
than provided under this Act.
108. Option to affected families to avail better
compensation and rehabilitation and resettlement.–
(1) Where a State law or a policy framed by the
Government of a State provides for a higher
compensation than calculated under this Act for the
acquisition of land, the affected persons or his family
or member of his family may at their option opt to avail
such higher compensation and rehabilitation and
resettlement under such State law or such policy of the
State.
Section 24 as amended by Haryana Act:
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
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the provisions of the said Land Acquisition Act, as if
the said Act has not been repealed
[Explanation.- For the purpose of this sub-Section, a land
acquisition proceeding shall be deemed to have been
initiated under the Land Acquisition Act, 1894 (Central Act
1 of 1894 where notification under Section 4 of the said Act
has been published in any form under sub-section (1) of the
said section.]
(2) Notwithstanding anything contained in sub-section(1),in
case of land acquisition proceedings initiated under the Land
Acquisition Act, 1894, where an award under the said section 11
has been made five years or more prior to the commencement of
this Act but the 1[—] possession of the land has not been taken
[and] the compensation has not been paid the said proceedings
shall be deemed to have lapsed and the appropriate Government,
if it so chooses, shall initiate the proceedings of such land
acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation
in respect of a majority of land holdings has not been deposited
in the account of the beneficiaries, then, all beneficiaries
specified in the notification for acquisition under section 4 of the
said Land Acquisition Act, shall be entitled to compensation in
accordance with the provisions of this Act.
[Provided further that in computing the period referred to
in this sub-section, any period during which the proceedings for
acquisition of the land were held up on account of any stay or
injunction issued by order of any court, shall be excluded:’
Provided further that the entry in rapat roznamcha
regarding taking or handing over possession recorded by the
Land Acquisition Officer or Revenue Official shall be treated as
possession taken for all intents and purposes.]”
44. Keeping in view the above, the following questions of law
arise for consideration:-
(i) Whether the assent given by the President under
Article 254(2) of the Constitution of India with regard
to the repugnancy of the State Legislation with the
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Central Act, 2013 was liable to be judicially reviewed
and the records to be scanned whether the President
was correctly apprised and effective consideration as
envisaged by the Constitution had been done and
whether the procedure prescribed by the Constitution
before enacting the law was followed or not?
(ii) Whether the State amendment of incorporating
Section 101A is liable to be declared ultra vires and
suffering from the vice of arbitrariness?
(iii) Whether the Policy dated 14.09.2018 was a
manifestly arbitrary policy and not sustainable and
whether the landowners could be put twice to the pain
of litigation at the convenience of a welfare State and
whether the State could recover the amount of
compensation against a un-willing landowner by
resorting to the forcible method of recovery under the
Land Revenue Act without any right of option or
participation or willingness?
(iv) Whether the action of the State Government in de-
notifying was tainted being malafide and manifestly
arbitrary action, on account of having failed to pursue
its legal remedies regarding the increase in cost of
acquisition and liable to be struck down on the ground
of being violative of Article 21 read with Article 300A
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of the Constitution having also not followed the
procedure laid down in the policy dated 14.09.2018?
Question no.(i):
Whether the assent given by the President under Article
254(2) of the Constitution of India with regard to the
repugnancy of the State Legislation with the Central
Act, 2013 was liable to be judicially reviewed and the
records to be scanned whether the President was
correctly apprised and effective consideration as
envisaged by the Constitution had been done and
whether the procedure prescribed by the Constitution
before enacting the law was followed or not?
45. The original files have been perused as to whether the
President was correctly apprised, keeping in view the fact that if one is to
see that the object and reasons of Section 101A apparently is projected as
benefit, which was given to the landowners for de-notification of the land
and the payment of compensation, on account of damages, if any,
sustained by landowners, due to non-viability or non-essentiality of the
land acquired under the 1894 Act for the public purpose in question. The
terms and conditions as considered were to be expedient by the State
Government. No such provision had been laid out as provided under
Section 48 of the old Act that damages would be assessed by under
Section 48(3), as per the provisions contained in Chapter-III of the Act,
which provides that the Reference Court was to assess the damages and,
thus, a judicial forum had the jurisdiction to assess the damages of the land
losers which is absent in the present case and the fiat lies with the State.
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46. The original file now summoned would go on to show that a
meeting was held on 22.11.2016 under the Chairmanship of the then
Hon’ble Chief Minister of Haryana, which was followed up by various
meetings including one held on 05.12.2016, wherein the then Legal
Remembrancer took part with various officials of the Advocate General
Office, including the then Chief Secretary. The status regarding various
cases under litigation apparently before this Court on the number of
projects etc. and the financial burden were part of the tables prepared. On
02.03.2017, it was noticed that it would be necessary to reserve the Bill for
consideration of the President of India, after it having been passed by the
State Legislature as required under Clause (2) of Article 254 of the
Constitution. It was relatable to Entry 18 of the State List and Entry 42 of
the Concurrent List in the Seventh Schedule and that the proposed measure
would not be inconsistent with the provisions of the Constitution of India.
The Revenue Minster, vide communication dated 07.03.2017,
communicated to the Speaker of the Haryana Vidhan Sabha for sponsoring
the Bill. The Bill was passed on 10.03.2017 after various changes had been
made by the office of the Advocate General. The Statement of the Objects
and Reasons was that it would ensure that the farmers who part with the
lands were enabled to share the benefits of progressive development and
various acquisitions had been held up by lapsing provisions and reference
was also made to the various provisions of the 2013 Central Act. On
24.03.2017, the State Bill, including the copies of notes on clauses of the
proposed legislation, were sent to the Ministry of Home Affairs (for short
‘MHA’), for consideration of the President of India under Clause (2) of
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Article 254 of the Constitution. The MHA vide letter dated 30.03.2017
sent it to three Ministries i.e. the Ministry of Rural Development (for short
‘MRD’), the Ministry of Home Affairs and the Ministry of Agriculture.
47. On 08.05.2017, Ministry of Rural Development, Department
of Land Resources raised various issues, whether there was any conflict
with the existing Central Law and that various areas need to be examined
in consultation with the Government of Haryana and the Ministry of Law
& Justice. Similarly, the Ministry of Home Affairs (Judicial & Political
Pensions Section) on 26.05.2017 also directed Secretary to Governor (SG)
that in view of the said comments of the Ministry of Rural Development,
requisite clarifications of the State Government may be given
expeditiously to enable the Ministry to process the Bill further. On
05.06.2017, the SG forwarded the said communication to the Additional
Chief Secretary to Government of Haryana and Financial Commissioner &
Secretary, Revenue & Disaster Management and Consolidation
Departments, Haryana (ACS, Revenue) that requisite information
alongwith the State Government views with regard to the observations of
the Ministry on the Bill may be sent directly to the Government of India,
MHA (Judicial & PP Section). The ACS (Revenue), on 06.06.2017, then
wrote to the Advocate General, Haryana that the MRD had made some
observations on the amendment proposed by way of Bill and advice was
sought on the reply. Accordingly, the draft was prepared by the Additional
Advocate General, Haryana and approved by the learned Advocate
General Haryana on 14.06.2017 and forwarded to the concerned quarters.
Resultantly, on 14.07.2017, the ACS (Revenue) had written to the MHA
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regarding the comments which had been sought from the MRD. As per
the comments, it would be clear that as mentioned that introduction of
Section 101A was for the reason that in a large number of cases, the
project became unviable to continue with the acquisitions because of
enormous cost of land and had saddled the State Government with huge
liability and Government did not wish to continue with such acquisitions.
The fact that there was no prohibition in the Central Act limiting the power
of the State Government to drop the unwarranted acquisitions would be
clear from Clause 21 of the comments, which had been attached with the
said letter. The conflict to the Central law was also reflected upon and that
it was not carefully examined by the State Government and Ministry of
Law and Justice.
48. On 11.08.2017, the Ministry of Agriculture also gave its
comments that the second amendment would cause extreme distress to the
farmers and removing the word ‘physical’ from Section 24(2) would make
the existing proviso exploitable and raised various issues. On 14.09.2017,
the MHA again wrote to the SG, Haryana forwarding the comments of the
Ministry of Agriculture & Farmers Welfare, Department of Agriculture,
Cooperation & Farmers Welfare (MOA). On 20.10.2017, another
communication was sent to the SG, Haryana that the letter of the MHA
had not been replied to and reply of the State Government was still
awaited, to enable the Ministry to process the Bill further. On 17.11.2017,
the said letter was forwarded by SG, Haryana to the ACS (Revenue) that
requisite information alongwith the views of the State Government with
regard to it be sent directly to the Government of India (GOI), MHA. On
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04.12.2017, the ACS (Revenue) wrote to the MHA regarding the
information which was desired by the MOA. In the comments given by
the State of Haryana, it was observed that there was a conflict with the
existing Central Laws and that it was in such a manner which was taking
away the rights sought to be conferred upon the landowners under the
Principal Act of 2013 by the Central Legislation. Reference was made to
the initiation of proceedings under Section 24 and that the proceedings
under Section 24 would be deemed to have lapsed and that Section 24(1)
shall save the acquisition under the 1894 Act. Reference was made to the
expression “initiated” under Section 24(1) which would show that the
proceedings have to be completed under the 1894 Act and, therefore, the
purpose of the 2013 Central Act was to ensure that the earlier proceedings
were concluded under the said Act and the word ‘completed’ had not been
used. Similarly, justification was given to the retrospective amendment
and it was expressly held out that the Section 24(1) proviso dealt with the
old acquisition made under the 1894 Act and since the physical possession
having not been taken, therefore, the amendment was being proposed. The
data had been secured which was to be necessary and essential and
germane and, therefore, the State of Haryana having screened the pending
acquisitions would save the pending infrastructures and the proposed
amendment was necessary for the State.
49. On 04.01.2018, the ACS (Revenue) wrote to MHA that there
was a discussion with the officials of the Union of India under the
Chairmanship of the Secretary, MOA and some observations had been
raised and replied in the meeting and a detailed note/comments were
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enclosed. Again, specific reference was made that Section 24(2) dealt
with old acquisitions made under the 1894 Act and since physical
possession had not been taken, therefore, the amendment was required.
The initiation of the proceedings under the old Act was highlighted to
emphasis that the proceedings as such would continue under the old Act
and the starting point of acquisition in relation to such past acquisitions to
save various infrastructure projects, which were in the pipeline. The
balance maintained under the 2013 Central Act with regard to such past
acquisitions and that the landowners would be given compensation under
the provisions of 2013 Central Act, was also held out, in view of the
provisions of Section 24. On 03.04.2018, the MHA asked the State
Government to revisit the Bill and advise if the State Government was
willing to present a fresh Bill duly incorporating the views of the Ministry
of Law & Justice (Department of Legal Affairs), keeping in view the
comments of the said department. On 05.04.2018, the MHA wrote to the
SG, Haryana that a meeting was to be held with the ACS, MHA on
12.04.2018 to discuss the amendments on the Bill and a senior official was
to be deputed. The said communication was then forwarded by the office
of the Secretary to the Governor on 10.04.2018 to the ACS(Revenue) and
apparently on 11.04.2018, the concerned Additional Advocate General,
who had given the legal advice, was deputed to attend the meeting, which
had taken place on12.04.2018. The ACS(Revenue) had also written to the
Presiding Officer, Shri O. Venkateswarlu, Deputy Legal Advisor, GOI, on
12.04.2018, who was to preside over the said meeting that the State should
have a power to return such lands on account of being saddled with huge
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financial liability in a large number of cases, wherein the Court had
enhanced the compensation manifold in respect of acquisitions having
been made even decades ago. Thus, Section 101A amendment giving
power to return such lands, which become unviable or non-essential was
stressed upon.
50. On 13.04.2018, the Office of the SG, Haryana wrote to the
ACS(Revenue), referring to the letter dated 03.04.2018 that on account of
need of revisiting the Bill, the advice was to be given, if the State
Government was willing to present a fresh Bill duly incorporating the
views of the Ministry of Law & Justice (Department of Legal Affairs) and
requisite clarification and comments be given and a copy be marked to the
said office.
51. Accordingly, during the course of arguments on 25.10.2024,
we directed Mr. Satya Pal Jain, Additional Solicitor General of India to
produce the relevant record which led to said amendment coming into
force, especially proceedings of the meeting which was held on
12.04.2018, since it was argued vehemently by Mr. Mittal that everything
was thrashed out in all the relevant meetings and the Central Government
was duly informed and kept well versed regarding all the issues including
the effect of repugnancy. He had, accordingly, submitted that once the
Presidential assent had been accorded, it cured the repugnancy factor and
the jurisdiction of this Court would be limited while sitting in the judicial
review as to what extent and for what purpose and not to find faults in the
Presidential assent. Once the President’s attention had been drawn to the
Central Act and to each and every provision of the amendment, then only
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assent had been granted and resultantly reliance was placed upon the
judgment passed in Gram Panchayat of Village Jamalpur (supra) that
prima facie by reason of the assent the amendment would prevail over the
Central Act. The efficacy of the assent given would be limited in judicial
review to that purpose and could not be extended beyond it. While relying
upon the judgment passed in P.N. Krishna Lal Vs. State of Kerala,
(1995) Suppl.2 SCC 187, it was accordingly contended that even if there
is some incidental entrenchment in some of the provisions, it was enough
that assent of the President had been sought and given and inconsistency
of the repugnancy factor would cease to operate as per the settled
provisions of Article 254(2).
52. From the record produced by Mr. Jain, it would be clear that
on the receipt of the bill from the Secretary to the Governor, comments
were sought from the Ministry of Law (Legislative Department), Ministry
of Rural Development (Department of Land Resources) and Ministry of
Home Affairs (Judicial Cell). It was noticed that the Department of
Agriculture had made strong observations which had been shared by the
State Government and the Government clarification was awaited. The
Ministry of Rural Development had furnished its no comments and
requested to holisticaly examine the clarifications of the State Government
with the Ministry of Law and Justice and as noticed, the Deputy Legal
Adviser, on 16.03.2018, raised the issue whether the land was acquired
and vested in the State which would bar the State from reconveying the
land to the persons interested while referring the judgment of the Apex
Court in V. Chandrasekran‘s case (supra). Resultantly, it was pointed out
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that in view of the observations contained in Para Nos.3 and 4, there
appeared no legal or constitutional objection if assent of the President is
not accorded to the Haryana Bill, 2017. Apparently, on 11.04.2018, the
matter was discussed with the Hon’ble Minister of State, Law and Justice
regarding the insertion of Sections 101A and Section 24(2) of the Central
Act and it had been noted that the appropriate Government neither had the
requisite power to reconvey the acquired land under the 1894 Act nor
could such person claim any right of restitution on any ground.
Resultanly, it was noticed that there was no legal or constitutional
objection if assent of the President is accorded to the Haryana Bill, 2017
vide noting dated 13.04.2018. The matter was then placed before the
Home Minister and vide noting dated 03.05.2048, it was noticed that the
approval has been given to the proposal and a summary for the President
has been placed in the file. It is also a matter of record that the Bill was
given assent on 09.05.2018 by the President and formally notified on
24.05.2018 with retrospective effect from 01.01.2014.
53. While referring to the judgment passed in Kaiser-I-Hind Pvt.
Ltd. (supra) it was, accordingly, contended that giving of assent was law
making process and steps taken in such process cannot be examined by the
Court. The perusal of the said judgment would go on to show that the
assent was given after considering the extent and nature of the repugnancy
between Bombay Rent Act and Transfer of Property Act as well as the
Presidency Small Cause Courts Act and in such circumstances, it was held
that once assent was granted, the State law would prevail and a finding
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was recorded that the High Court had committed no error in looking at the
correspondence.
54. In the case of Rajiv Sarin and another Vs. State of
Uttarakhand and others, (2011) 8 SCC 708, the Constitution Bench
noted that the pointed attention of the President would be required to be
drawn to the repugnancy and the reasons for having such a law, despite the
enactment by Parliament. Resultantly, it was held that awarding no
compensation attracts the vice of illegal deprivation of property even in the
light of the provisions of the Act and therefore amenable to writ
jurisdiction. Accordingly, directions were given to determine and award
compensation to the appellants by following a reasonable and intelligible
criteria on the principles laid down, while partly allowing the appeal
against the dismissal of the writ petition, whereby it was held that the
appellants were not entitled to any compensation even when their forest
land was acquired by the Government.
55. In Yogendra Kumar‘s case (supra), the Apex Court had
noticed that the inherent inconsistency between the Acts has to be seen for
noticing the repugnancy, which sets in and it was noticed that the Bill had
been sent for assent and there was correspondence thereafter and taking
note of the fact that the entire Bill was sent to the President for obtaining
assent, it could be safely concluded that the President was apprised of the
reason when the assent was sought, which is sought to be highlighted in
the present case by Mr. Mittal and relied upon.
56. A perusal of the judgment, however, would go on to show
that the Apex Court was examining the repugnancy of the State
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amendments made under the P.C. Act and held that where two enactments
come into the field, obedience to each of them may be possible without
disturbing the other. The repugnancy may, however, come if one statute
commands anything to be done and the other enactment may say to the
contrary and even both laws cannot co-exist together. It was accordingly
held that in M.P. AIT Permit Owners Association and another vs. State
of M.P., (2004) 1 SCC 320, the law made by Parliament shall prevail over
the State law and reliance was also placed upon Govt. of A.P. and another
vs. J.B. Educational Society and another, (2005) 3 SCC 212. It was
accordingly held that when there is clear and direct inconsistency between
the Central Act and the State Law, such inconsistency is irreconcilable and
once there is direct collision with the Central Act and it brings a situation
where one would lead to disobeying the other, then the provision of law
made by the State Legislature will be void. Relevant portion from the
judgment of Yogendra‘s case (supra) reads thus:-
“54. Thus viewed, repugnancy arises when there is a clear and
direct inconsistency between the central law and the State law and such
inconsistency is irreconcilable. It is because in such a situation there is a
direct collision with the Central Act or brings about a situation where
obeying one would lead to disobeying the other. In Dharappa v. Bijapur Coop.
Milk Producers Societies Union Ltd.26, (2007) 9 SCC 109 it has been spelt outthat clause (2) of Article 254, however, provides that where a law made by
the legislature of a State with respect to one of the matters enumerated in
the Concurrent List, contains any provision repugnant to an existing law
with respect to that matter, then, the law so made by the legislature of such
State shall, if it has been reserved for the consideration of the President
and has received his assent, prevail in that State. The question of
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Parliament falling under the Concurrent List or an existing law with
reference to one of the matters enumerated in the Concurrent List. If a law
made by the State Legislature covered by an entry in the State List
incidentally touches any of the entries in the Concurrent List, Article
254 is not attracted. But where a law covered by an entry in the State List
(or an amendment to a law covered by an entry in the State List) made by
the State Legislature contains a provision, which directly and substantially
relates to a matter enumerated in the Concurrent List and is repugnant to
any provision of an existing law with respect to that matter in the
Concurrent List then such repugnant provision of the State law will be
void. Such a provision of law made by the State Legislature touching upon
a matter covered by the Concurrent List, will not be void if it can coexist
and operate without repugnancy with the provisions of the existing law.”
57. It is in such circumstances, the conflict as such has to be
addressed keeping in mind the principles laid down. It would be also
profitable to refer to judgment of the Apex Court in M/s. Innoventive
Industries Ltd.‘s case (supra) wherein, a two-Judge Bench was examining
the provisions of the Insolvency and Bankruptcy Code of 2016 and the
Maharashtra Relief Undertaking (Special Provisions) Act, 1958. While
referring to the judgment in Zaverbhai Amaidas vs. State of Bombay,
(1955) 1 SCR 799, it was noticed that where Legislation covers the same
ground, both by the Centre and by the Province, both of them being
competent to enact the same, the law of the Centre should prevail over that
of the State. It was accordingly held that where two enactments contained
inconsistent and irreconcilable provisions so that they cannot stand
together or operate in the same field, repugnancy may arise and the two
cannot possibly stand together and the State law would be ultravires
because of the non-obstante clause of Article 246(1) read with the opening
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words “subject to” in Article 246(3). The following principles were
accordingly laid down:-
“49. It will be noticed that the Constitution Bench judgment
in Rajiv Sarin (supra) does not at all refer to Tika
Ramji (supra). Tika Ramji (supra) had clearly held that the doctrine
of pith and substance cannot be referred to in determining questions
of repugnancy, once it is found that both the Parliamentary law and
State law are referable to the Concurrent List. Therefore, the
statement in paragraph 53 in Rajiv Sarin (supra), that the doctrine
of pith and substance has utility in finding out whether, in
substance, the two laws operate and relate to the same matter, may
not be a correct statement of the law in view of the unequivocal
statement made in Tika Ramji (supra) by an earlier Constitution
Bench decision.
However, the following sentence is of great importance,
which is, that the two laws, namely, the Parliamentary and the State
legislation, do not need to find their origin in the same entry in List
III so long as they deal, either as a whole or in part, with the same
subject matter. This clarification of the law is important in that
Ranganath Misra, J.’s separate concurring opinion in Vijay Kumar
Sharma (supra) seems to point to a different direction. However,
Hoechst Pharmaceuticals(supra), also does not agree with this view
and indicates that so long as the two laws are traceable to a matter
in the Concurrent List and there is repugnancy, the State law will
have to be yield to the Central law except if the State law is covered
by Article 254(2).
50. The case law referred to above, therefore, yields the
following propositions:
i) Repugnancy under Article 254 arises only if both the
Parliamentary (or existing law) and the State law are referable to
List III in the 7th Schedule to the Constitution of India.
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ii) In order to determine whether the Parliamentary (or
existing law) is referable to the Concurrent List and whether the
State law is also referable to the Concurrent List, the doctrine of
pith and substance must be applied in order to find out as to where
in pith and substance the competing statutes as a whole fall. It is
only if both fall, as a whole, within the Concurrent List, that
repugnancy can be applied to determine as to whether one
particular statute or part thereof has to give way to the other.
iii) The question is what is the subject matter of the statutes in
question and not as to which entry in List III the competing statutes
are traceable, as the entries in List III are only fields of legislation;
also, the language of Article 254 speaks of repugnancy not merely
of a statute as a whole but also “any provision” thereof.
iv) Since there is a presumption in favour of the validity of
statutes generally, the onus of showing that a statute is repugnant to
another has to be on the party attacking its validity. It must not be
forgotten that that every effort should be made to reconcile the
competing statutes and construe them both so as to avoid
repugnancy – care should be taken to see whether the two do not
really operate in different fields qua different subject matters.
v) Repugnancy must exist in fact and not depend upon a mere
possibility.
vi) Repugnancy may be direct in the sense that there is
inconsistency in the actual terms of the competing statutes and there
is, therefore, a direct conflict between two or more provisions of the
competing statutes. In this sense, the inconsistency must be clear
and direct and be of such a nature as to bring the two Acts or parts
thereof into direct collision with each other, reaching a situation
where it is impossible to obey the one without disobeying the other.
This happens when two enactments produce different legal results
when applied to the same facts.
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vii) Though there may be no direct conflict, a State law may
be inoperative because the Parliamentary law is intended to be a
complete, exhaustive or exclusive code. In such a case, the State law
is inconsistent and repugnant, even though obedience to both laws
is possible, because so long as the State law is referable to the same
subject matter as the Parliamentary law to any extent, it must give
way. One test of seeing whether the subject matter of the
Parliamentary law is encroached upon is to find out whether the
Parliamentary statute has adopted a plan or scheme which will be
hindered and/or obstructed by giving effect to the State law. It can
then be said that the State law trenches upon the Parliamentary
statute. Negatively put, where Parliamentary legislation does not
purport to be exhaustive or unqualified, but itself permits or
recognises other laws restricting or qualifying the general
provisions made in it, there can be said to be no repugnancy.
viii) A conflict may arise when Parliamentary law and State
law seek to exercise their powers over the same subject matter. This
need not be in the form of a direct conflict, where one says “do”
and the other says “don’t”. Laws under this head are repugnant
even if the rule of conduct prescribed by both laws is identical. The
test that has been applied in such cases is based on the principle on
which the rule of implied repeal rests, namely, that if the subject
matter of the State legislation or part thereof is identical with that of
the Parliamentary legislation, so that they cannot both stand
together, then the State legislation will be said to be repugnant to
the Parliamentary legislation. However, if the State legislation or
part thereof deals not with the matters which formed the subject
matter of Parliamentary legislation but with other and distinct
matters though of a cognate and allied nature, there is no
repugnancy.
ix) Repugnant legislation by the State is void only to the
extent of the repugnancy. In other words, only that portion of the
State’s statute which is found to be repugnant is to be declared void.
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x) The only exception to the above is when it is found that a State
legislation is repugnant to Parliamentary legislation or an existing
law if the case falls within Article 254(2), and Presidential assent is
received for State legislation, in which case State legislation
prevails over Parliamentary legislation or an existing law within
that State. Here again, the State law must give way to any
subsequent Parliamentary law which adds to, amends, varies or
repeals the law made by the legislature of the State, by virtue of the
operation of Article 254(2) proviso.”
58. While referring to the judgment passed in G. Mohan Rao
and others Vs. State of Tamil Nadu and others, (2022) 12 SCC 696, it
was argued that challenge as such to the amendment of the Central Act,
2013 made by the State of Tamil Nadu had been upheld and if once the
repugnancy had been pointed out to the President, not every provision is to
be pointed out. A perusal of the said judgment would go on to show that
the Apex Court had noticed that the legislature had made no attempt to
hide the provisions of the 2019 Act and the Statement of Objects and
Reasons depicts the background, which was to save the land, which had
already been put to use and to validite the action taken on the said Acts. It
was in such circumstances, it had been held that the High Court did not
point out any repugnancy and only the retrospective effect had been
examined and in such circumstances it was held that the Act was a
legitimate legislative exercise and had found it to be consistent with the
Article 254 of the Constitution of India and, therefore, the same is of no
assistance to Mr. Mittal.
59. Rather, the judgment would go on to show that the State was
making the amendments to give higher compensation and the saving of
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acquisitions made earlier, which is the anti-thesis of Section 101A, which
is the subject matter of consideration. It was in such circumstances, the
Apex Court held that Article 254 contemplates co-existence of Union and
State Laws, even if repugnant, but after the repugnancy is assented to by
the President and is a manifestation of de-centralized law making and
recognition of the State Legislature to modulate dispensation as may be
expedient to that State, upon seeking presidential assent for such deviation.
It was in such circumstances held that there was compliance of Section
254(2) and while falling back on the statement of objects and reasons of
the 2019 Act, wherein it has been noticed that heavy monetary loss would
fall upon the State exchequer while derailing many development projects
and causing significant negative impact on the state economy, the bill had
been introduced. In such circumstances, it was held that the judgment
impugned by the High Court did not mention the exact provisions of the
State enactments which are repugnant to the law made by the Parliament
and the Constitution envisages judicial review of the existence of
legislative competence and use of such competence to enact something
that does not violate Part-III or other provisions of the Constitution. It is
in such circumstances, the 2019 Act was to be held to be a legitimate
legislative exercise and consistent within the four corners of Article 254.
60. Reference can be made to the judgment of the Apex Court in
Forum for People’s Collective Efforts (FPCE) and another vs. State of
West Bengal and another, (2021) 8 SCC 599 wherein while examining
the Statement of Objects and Reasons for introducing the Real Estate
(Regulation and Development) Bill, 2016, the constitutional validity of the
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State Legislation namely the West Bengal Housing and Inter Regulation
Act, 2017 was under challenge, the issue discussed was regarding the
concurrent list and the constitutional impermissibility of the State
Legislate to enact a law over the same subject matter by setting up parallel
Legislation. It was held that the State Act was repugnant to the Central
Legislation and was declared unconstitutional. Accordingly, the three
principles of repugnancy were laid down which read thus:-
“132. The initial part of Clause (1) alludes to a law enacted by a
state legislature being “repugnant” to a law enacted by Parliament or to an
existing law. The concluding part of clause 1 provides for a consequence,
namely that the State law would be void “to the extent of the repugnancy”
and the Parliamentary enactment shall prevail. The concept of repugnancy
emerges from the decisions of this Court which have elaborated on the
context of clause (1) of Article 254. Clause (2) of Article 254 has also
employed the expression “repugnant” while providing that a law enacted
by the legislature of a State which is repugnant to a law enacted by
Parliament or an existing law on a matter within the Concurrent List shall,
if it has received the assent of the President, prevail in the State. The
decisions of this Court essentially contemplate three types of repugnancy:
132.1 The first envisages a situation of an absolute or irreconcilable
conflict or inconsistency between a provision contained in a State
legislative enactment with a Parliamentary law with reference to a matter
in the Concurrent List. Such a conflict brings both the statutes into a state
of direct collision. This may arise, for instance, where the two statutes
adopt norms or standards of behavior or provide consequences for breach
which stand opposed in direct and immediate terms. The conflict arises
because it is impossible to comply with one of the two statutes without
disobeying the other;
132.2 The second situation involving a conflict between State and
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emerges when a Parliamentary legislation is so complete and exhaustive as
a Code as to preclude the existence of any other legislation by the State.
The State law in this context has to give way to a Parliamentary enactment
not because of an actual conflict with the absolute terms of a
Parliamentary law but because the nature of the legislation enacted by
Parliament is such as to constitute a complete and exhaustive Code on the
subject; and
132.3 The third test of repugnancy is where the law enacted by
Parliament and by the State legislature regulate the same subject. In such a
case the repugnancy does not arise because of a conflict between the fields
covered by the two enactments but because the subject which is sought to
be covered by the State legislation is identical to and overlaps with the
Central legislation on the subject.”
61. The perusal of the files would go on to show that the whole
object as such of the State was that enormous cost had saddled the State
Government with huge liability and the State Government wished to have
discretionary power to drop the acquisition, which it did not wish to pursue
with regard to acquisition made under the 1894 Act. Thus, it would be
clear from the response, which was given on 14.07.2017 to the Ministry of
Home Affairs from the Additional Chief Secretary and Financial
Commissioner to the Government of Haryana. It is in such circumstances
sought to be argued that the assent was a total nullity and contrary to the
advise of the Central Government. Even three different departments had
objected to the said modification, which was being adopted and for the
reasons the amendment was sought to be incorporated.
62. It was submitted that the assent is nullity, as the President had
not taken the advice of the Council of Ministers, as provided under Article
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74 of the Constitution and manifestly exercised powers, which not vested
with it. Article 74 of the Constitution reads as under:-
“74. [(1) There shall be a Council of Ministers with the
Prime Minister at the head to aid and advise the President
who shall, in the exercise of his functions, act in accordance
with such advice:]
[Provided that the President may require the Council
of Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration.]
(2) The question whether any, and if so what, advice
was tendered by Ministers to the President shall not be
inquired into in any court.”
63. It was, accordingly, submitted that advice of the Council of
Ministers was not taken and it was only the Prime Minister, who has the
power as such and in spite of the fact that the proceedings are repugnant to
the Central Act of 2013, the amendment had been carried through, which
is contrary and is manifestly arbitrary. Reliance was, accordingly, placed
upon the judgment of the Apex Court passed in the case of Shamsher
Singh and another Vs. State of Punjab, (1974) 2 SCC 831, wherein it
was held that the Indian Constitution envisages a parliamentary and
responsible form of Government at the Centre and in the States and not a
Presidential form of Government, and the powers of the Governor as the
Constitutional head are not different. The President is the formal or
constitutional head of the executive, and the Council of Ministers, with the
Prime Minister as the head, aid and advise the President in the exercise of
his functions and it had been held that neither the President nor the
Governor is to exercise the executive functions personally and functions of
the President cannot be delegated. It was further submitted that the
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Presidential assent was not given for recovery from the landowners and it
was only qua return of land or the compensation payable or providing
alternate land and thus, coupled with the object and reasons which are
stated to be a beneficial piece of legislation. It was, accordingly, rightly
submitted that this is what was presented before the President when the
assent was sought to be taken, but the aspect that the land losers were to be
adversely affected by the methodology adopted by the State Government,
which was the whole purpose of the amendment was never projected.
64. However, in view of the record produced by the Union of
India, it is apparent that State has followed the procedure and the Union of
India has forwarded the Bill to the President and in view of the provisions
of Section 254(2), where a law is made by the Legislature of the State in
respect of one of the matters contained in the concurrent list and which is
repugnant to the provisions of an earlier law made by the Parliament on
existing law, then the law made by the State, if it had been reserved for
consideration of the President and has received its assent, shall prevail in
that State. Once the needful has been done, it would not lie in the mouth
of the petitioners to say that the President was not apprised of the
repugnancy factor. As noticed, the matter has been put up at the highest
level of the Law Minister and also with the Union Home Minister and then
forwarded to the President and even if there is some incidental
entrenchment, once the assent of the President has been sought and given,
the argument raised that it is in the teeth of the Central Act, would no
longer sustain.
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65. Mr. Gupta has not pressed the argument to that extent that the
power of judicial review as such could further be undertaken to strike
down the provision keeping in view the fact that it is still within the
purview of the Parliament as such under the 254(2) proviso from enacting
at any time any law with respect to the same matter including a law adding
to amending, varying or repealing the law so made by the Legislature of
the State.
66. In such circumstances, we answer Ques. No. 1 in favour of
the State that the President was apprised and effective consideration as
such envisaged by the Constitution had been done and procedure
prescribed by the Constitution before enacting the law was followed.
Question No.(ii):
(ii) Whether the State amendment of incorporating
Section 101A is liable to be declared as ultra vires and
suffering from the vice of arbitrariness?
67. Section 24 of the Central Act, 2013 as noticed and reproduced
above would go on to show that it starts with a non-obstante clause that
anything contained in this Act, in any case of land acquisition proceedings
initiated under the 1894 Act would, thus, be primarily of grave
importance, since Section 24(1)(b) itself provides that where an Award
under Section 11 has been made, thus such proceedings shall continue
under the provisions of the Land Acquisition Act as if the said Act has not
been repealed. Even the State amendment does not tinker with the original
version as such as incorporated in the 2013 Central Act and only an
explanation has been added which, in sum and substance, was regarding
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the initiation of proceedings under the 1894 Act and where any
notification under Section 4 of the said Act has been published in any form
under sub-Section (1) of the said section. Thus, the State never chose to
amend the Act and to variate it from what the 2013 Central Act had
conceived and rather wished to protect the 1894 proceedings initiated. It is
not disputed that in the present case the Awards in question for Sirsa
acquisition was passed on 12.01.2011, in the case of Shikhopur on
31.07.2013 and in the case of Shahbad Feeder on 02.12.2005, well before
the 2013 Central Act came into force on 01.01.2014. Thus, a plain reading
as such of the Section would go on to show that the proceedings had to
continue under the 1894 Act.
68. The word “initiation” was a subject matter of discussion by
the Apex Court in HSIIDC Vs. Deepak Aggarwal and others (2023) 6
SCC 512. The Apex Court in the said case was considering the Full
Bench judgment of this Court to hold that the initiation process starts when
Section 4 notification is issued and reversed the Full Bench judgment
wherein the view taken was that initiation starts at the stage of declaration
under 6 of the 1894 Act. The Apex Court noticed that the legislative intent
in formulating Section 24 was that the land acquired under the 1894 Act
had already been used for several public purposes and for infrastructural
projects and, therefore, the said public purposes were in progress at
various stages and lapsing would be seriously detrimental to public
interest. The consideration of the relevant aspects and the pros and cons
were discussed to hold that the legislature had to come up with the
balancing provision for controlling the extent of retrospectivity and for
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curtailing the erosion of rights of landholders. Resultantly, it was held that
the word ‘initiation’ has been used, so that the proposed projects would
remain protected and that if the declaration under Section 6 was to be
taken as the initiation, it would entail annulment of the notifications and
the acquisition proceedings. It was, accordingly, held that uniform
procedure has to be followed in respect of such proceedings and the
acquisition initiated for public purpose should go on in a fair and
transparent manner with a view to achieve the intent and purport of the
2013 Act and the persons affected should have definite idea about the
manner in which the procedures would be conducted. This was more so,
in lieu of Section 24(1)(a), which provided the determination of
compensation to be done in the cases where no award under Section 11 of
the 1894 had been made, then the same was to be under the 2013 Act.
Resultantly, it was held that restrictive application of the provisions to
such proceedings during its continuance, would make the provisions under
Section 24(1)(a) unworkable.
69. It is, thus, apparent that the State before the Apex Court was
projecting the defence that the public projects had to be saved under the
1894 Act. The principle of rule of law would not permit the State to take a
contrary stand in order to defend the provisions of Section 101A before the
Constitutional Courts and it cannot be treated as a validation of Statutes
and is not a corrective measure, on account of any judgment. Rather, it is
apparent that there is an interference with the judicial process and the
breach of separation of powers is threatened, as the main consideration
before the Legislature is the huge financial liability, which is mentioned in
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the correspondence itself of the State while communicating with the Union
of India. In the letter dated 12.04.2018 addressed to Deputy Legal
Advisor, Government of India, it has been mentioned that “the State must
have the power to de-notify, on account of the financial liability”. The
same has been incorporated in the policy as noticed and reproduced above,
wherein under Clause 7 and the explanation that the unviable factors
which have been mentioned also is on account of the increase in the
acquisition cost, as a result of any reason including any enormous
enhancement in compensation amount payable on such land due to Court
orders.
70. A perusal of the judgment passed in Indore Development
Authority (supra) would go on to show that Question No.2 framed was that
whether the proviso of Section 24(2) of the 2013 Central Act has to be
construed as part thereof or proviso to Section 24(1)(b). In that context,
various objections had been made regarding the aspect of the repeal clause
and the general application of Section 6 of the General Clauses Act.
Specific reference has been made by the Constitution Bench that once the
Award had been passed under Section 11 in terms of Section 24(1), then
such proceedings shall continue under the provisions of 1894 Act and that
it contemplates such pending proceedings when the 2013 Central Act
came into force and shall continue and would be taken their logical end. It
was also held that the exception of Section 24(1)(b) is provided under
Section 24(2) and where the award had been passed five years or more
prior to the enforcement of the 2013 Central Act and the physical
possession had not been taken or compensation had not been paid, such
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proceedings will be deemed to have lapsed and cannot continue as per the
provision of Section 24(1)(b) of the 2013 Central Act. It was, accordingly,
held that it was an exception carved out to Section 24(1)(b) and where the
proceedings were pending. Resultantly, it has been specifically held that
where an Award has been made, such proceedings shall continue and thus,
such proceedings shall continue as per the terms used in Section 24(1)(b)
under the provisions of 1894 Act, which means that proceedings were
pending in praesenti as on the date of enforcement of 2013 Act and were
not concluded and it was an exception as has been carved out in Section
24(2). The applicability of Section 24 was held to be given full effect and
24(2) was only an exception to the otherwise general applicability of the
provisions contained in Section 6 of the 1894 Act and 24(1) (a) and (b)
applied to the proceedings.
71. A perusal of para 173 would go on to show that the
observations are also there that where an Award has been passed under
Section 11 of the provisions of 1894 Act, then such proceedings shall
continue, if the same has not been repealed and there was only the
exception provided under Section 24(2) and referred to Section 24(1). It
was also held that there was an exception under Section 24(1)(b) which
was a self-contained provision and Parliament worked out an exception by
providing a non-obstante clause in Section 24(2) to under Section 24(1)
and any other interpretation would be derogatory and there was no need to
add it as the proviso under Section 24(1)(b), as it had not been done by the
legislature. Reference was made to usage of ‘Full Stop’ and deliberately
put in a particular sentence and has only been attached with Section 24(1)
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(b) and it would destroy the very provision whereby the proceedings have
to continue under the 1894 Act and thus, could not cause repugnancy with
the main provision and supersede the main provision and destroy it. It was
held that the old regime is provided for under Section 24(1)(b) and the
proviso was an exception to Section 24(2) and could not nullify the
provisions of Section 24(1)(b) but only provide higher compensation.
Similarly, it was held that where projects had come up and litigation was
being initiated, the proceedings had to continue under the provisions of the
old act, which would be in the spirit of Section 24(1)(b) of the 2013
Central Act and Section 6(b) of the General Clauses Act, 1897 read with
Section 6(c) which provided that the repeal or anything contained in it,
would not affect the previous operation of any enactment or anything duly
done and also would not affect any right, privilege, obligation or liability
acquired, accrued or incurred.
72. The factual matrix has already been noticed that the State
predominately in all the acquisitions having failed to get relief as such and
rather not even having pursued its legal remedies to the fullest, has chosen
as a litigant to scuttle the settled rights of the other party in a Court of law,
whereby the statutory relief granted for the compensation as assessed
under the provisions of the 1894 Act are sought to be nullified. The
Constitution Bench in Indore Development Authority (supra) while
examining the provisions of Section 24(2) also noticed the provisions of
Section 24(1)(a) & (b) and the fact that under Section 24 (1)(b) that the
pending proceedings, as on the date on which the 2013 Central Act came
into force, shall continue and be taken to their logical end and the fact of
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lapsing was also noticed. Relevant observations of the Constitution Bench
made in the said judgment read as under:-
“95. Section 24(1)(a) of the Act of 2013 read with the non-
obstante clause provides that in case of proceedings
initiated under the Act of 1894 the award had not been
made under Section 11, then the provisions of the Act of
2013, relating to the determination of compensation would
apply. However; the proceedings held earlier do not lapse.
In terms of Section 24(1)(b), where award under Section
11is made, then such proceedings shall continue under the
provisions of the Act of 1894. It contemplates that such
pending proceedings, as on the date on which the Act of
2013 came into force shall continue, and taken to their
logical end. However, the exception to Section 24 (1)(b) is
provided in Section 24(2) in case of pending proceedings;
in case where the award has been passed five years or more
prior to the commencement of the Act of 2013, the physical
possession of the land has not been taken, or the
compensation has not been paid, the proceedings shall be
deemed to have lapsed, and such proceedings cannot
continue as per the provisions of Section 24(1)(b) of the
Act of 2013.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
112. Section 24(2) of the Act of 2013 is, in our opinion, a
penal provision – to punish the acquiring authority for its
lethargy in not taking physical possession nor paying the
compensation after making the award five years or more
before the commencement of the Act of 2013 in pending
proceedings, providing that they would lapse. The
expression where an award has been made, then the
proceedings shall continue used in Section 24(1)(b) under
the provisions of the Act of 1894 means that proceedings
were pending in praesenti as on the date of enforcement of
the Act of 2013 are not concluded proceedings, and in that
context, an exception has been carved out in section 24(2).”
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73. It was in such circumstances, the Apex Court read the
expression and to save the acquisitions under the 1894 Act, keeping in
view the principle that the land vested in the State under Section 16 and
that possession could be taken by way of Rapat Roznamcha and not
physical possession. The purportive intent behind the Constitution Bench
and as successfully defended by the State of Haryana was on the strength
of Section 48 of the old Act that once possession had been taken, it could
not withdraw from acquisition of any land. Relevant judgments have
already been referred to in the reference order dated 08.04.2019, as
reproduced above, pertaining to Section 48 of the 1894 Act and, therefore,
to avoid the duplication the said judgments are not referred to. The
Constitution Bench relied upon another set of cases, wherein the said
principle was kept in mind. The amendment in the Act is thus, to benefit
one of the two litigants, namely the State through the legislation to negate
the rule of law and the State cannot be permitted to take the said latitude,
which could not be given to a private litigant, who would have perforce to
comply with the decree of the Court. The incursion in the judicial process,
thus, amounts to a trespass in a field not permitted and would be the
violation of the basic structure of the Constitution of India and coupled
together with the flagrant, manifest violation of Article 14 and 300A of the
Constitution and is manifestly arbitrary.
74. In Deepak Aggarwal‘s case (supra), the Apex Court
specifically noticed that the legislative intent behind in bringing up the
2013 Act was to have a unified enactment, facilitating land acquisition for
industrialization, infrastructure and urbanization projects, in a timely and
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transparent manner and for providing for just and fair compensation, and
the intention of the legislature as such regarding initiation of proceedings
was not to allow such proceedings to lapse or allow the authorities to
follow the procedures during such period according to their sweet will and
a uniform procedure has to be followed in the face of such proceedings,
while discussing the word ‘initiated’ as provided under Section 24 (1).
Relevant portion of the said judgment reads as under:-
“29. For a proper and purposive construction of the
word ‘initiated’, in the contextual situation it will not be
inappropriate to look into the legislative history of Section
24 of the 2013 Act as well, as explained in the written
submission filed on behalf of HSIIDC/ STATE/
COMMITTEE dated 11.04.2022. However, we do not
deem it necessary to refer to or to deal with it, in detail. In
short, it is stated therein that the events happened prior to
the drafting of Section 24, as it exists on the statute book
today, is a safe guide to cull out the legislative intent in
formulating Section 24 in the 2013 Act, by the legislature.
Furthermore, it is stated therein that the legislature was
fully aware of the fact that lands acquired under the L.A.
Act were already being used for several public purposes
and more particularly for infrastructural projects and large
number of acquisition proceedings under the L.A. Act,
relating large number of public projects for various public
purposes, are in progress at various stages. Hence, lapsing
of everything would be seriously detrimental to public
interest and at the same time, the interest of land holders is
also taken into account. The consideration of all such
relevant aspects and the pros and cons made the legislature
to come up with a balancing provision under Section 24(1)
(a) and clauses therein, in the 2013 Act. This was
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extent of retrospectivity and for curtailing the erosion of
rights of land holders.
30 and 31 xxx xxx xxx
32. Bearing in mind the twin purposes mentioned
hereinbefore, we are of the view that they can only be
achieved if the word ‘initiated’ is taken as the point of time
when section 4 (1) notification is issued and published
under the L.A. Act, in the Official Gazette. Such a
construction would embrace more number of affected
persons within the fold of affected persons entitled to
higher amount of compensation by application of the 2013
Act in the matter of determination of compensation. As a
necessary sequel more extent of land in respect of which
acquisition proceedings have been initiated, for public
purposes, under the L.A. Act for the various ongoing and
proposed projects, would remain protected from lapsing. In
this context, it is to be noted that all the parties in all the
appeals in unison would admit the fact that determination of
compensation based on the 2013 Act would be beneficial to
the persons affected by acquisition and entitled to be
compensated. The words ‘initiate’ or ‘initiated’ are not
defined under the L.A. Act and also under the 2013 Act.
Hence, to ascribe its meaning the dictionary meaning of the
word has to be looked into.
In Webster’s Third New International Dictionary.
The word “initiate” has inter alia been defined thus:-
“to begin or set going; make a beginning of; perform
or facilitate the first actions, steps, or stages of;”
In Shorter Oxford English Dictionary the word
“initiate” is defined as:
“to begin, commence, enter upon, to introduce, set
going, originate.”
33 to 37. xxx xxx xxx
38. We think that while considering those questions we will
have to bear in mind the purposes and the legislative history
of the 2013 Act and also the intention of the legislature in
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drafting the same in the manner in which it now exists. We
have already dealt with those aspects. One crucial aspect
discernible from Section 24(1)(a) has also to be taken note
of in this context. The combined effect of Section 24(1) and
clause (a) thereof is that if land acquisition proceeding
under the L.A. Act was initiated prior to 01.01.2014, the
date of coming into force of the 2013 Act, and if it was not
culminated in an award under Section 11 of the L.A. Act,
then all the provisions of the 2013 Act relating to the
determination of compensation should apply to such
acquisition proceedings. Thus, it is obvious that in case of
non-passing of an award in terms of Section 11 of the L.A.
Act where the acquisition proceedings have been initiated
prior to 01.01.2014, all provisions under the 2013 Act
relating to the determination of compensation alone would
apply to such acquisition proceedings. In other words, it
would mean that in such circumstances the land acquisition
proceedings should continue, but all the provisions relating
to the determination of compensation under the 2013 Act
alone will be applicable to such proceedings, meaning
thereby, the 2013 Act would come into play only at that
stage. There can be no doubt with respect to the position
that between the initiation of land acquisition proceedings
by issuance and publication of notice under Section 4(1) of
the L.A. Act and the stage at which compensation for the
acquisition calls for determination, there are various
procedures to be followed to make the acquisition in
accordance with the law. The question is when Section
24(1) of the 2013 Act makes it clear with necessary
implication that all provisions of the 2013 Act relating to
the determination of compensation alone would be
applicable to such proceedings initiated under the L.A. Act
but, not culminated in an award, how the procedures are to
be regulated during the intervening period till the
proceedings reach the stage of determination of
compensation. There cannot be any uncertainty on that
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aspect. The procedures to be undertaken and the manner in
which they are to be regulated cannot remain uncertain.
They are conducted either in the manner provided under the
L.A. Act or in the manner provided under the 2013 Act. But
then, in view of Section 24(1)(a), the provisions relating to
the determination of compensation alone can be applied to
such proceedings or in other words, there is only a
restricted application of the provisions of the 2013 Act in
relation to such proceedings. The inevitable conclusion can
only be that what is applicable to the various procedures to
be undertaken during the period up to the stage of
determination of compensation are those prescribed under
the L.A. Act. We have no doubt that without such a
construction, the provisions under Section 24(1)(a) would
not work out, in view of the restrictive application of the
2013 Act. It is in this context that the decision in Ambica
Quarry Works’ case (supra) assumes relevance. Any
construction of the said provision without taking into the
legislative intention, referred hereinbefore would defeat the
legislative intention as also the very objects of the 2013
Act. Certainly, it would not be in public interest to allow
such proceedings to lapse or allow the authorities to follow
the procedures during such period according to their sweet
will. A uniform procedure has to be followed in respect of
such proceedings. The acquisitions initiated for public
purposes should go on in a fair and transparent manner with
a view to achieve the intent and purport of the 2013 Act and
at the same time, the persons affected shall have definite
idea about the manner in which procedures would be
conducted. The Party ‘B’ would not be justified in
describing such situations of necessity and the
consequential application of provisions which are actually
saved on account of the construction of Section 24 as an
attempt to bring the words expressly employed in Section
24(1)(b) and absent in Section 24(1)(a), by indirect method
to Section 24(1)(a) of the 2013 Act. The aforesaid
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conclusions and findings would make the contentions of
Party ‘B’ that Section 4(1) notification issued prior to
01.01.2014 could not survive after 01.01.2014 and also that
Section 6 notification under the L.A. Act could not be
issued after 01.01.2014, unsustainable. In fact, all such
procedures and formalities shall be continued till the
determination of compensation by applying all the
provisions for determination of compensation, under the
2013 Act. A contra-construction, in view of the restrictive
application of the provisions to such proceedings during its
continuance, would make the provisions under Section
24(1)(a) of the 2013 Act unworkable.”
75. Similarly, in The Executive Engineer, Gosikhurd Project
Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development
Corpn. Vs. Mahesh & others, (2022) 2 SCC 772, while examining the
provision of Section 24(1), the Apex Court while taking into consideration
the observations made by the Constitution Bench in Indore Development
Authority (supra) held that the perseveration of the determination date
for the computation of compensation for the awards made under Section
24(1)(a) of the 2013 Act is a thought, through legislative invocation, to
ensure that the landowners are entitled to the benefit of the enhanced
compensation as per the 2013 Act. While referring to Section 114 of the
Central Act, it was noticed that it effects repeal but with certain savings, in
accordance with Section 24 and where an Award had not been made, the
provisions relating to determination of compensation under the 2013 Act
would apply and where the award is made, proceedings would continue
under the provisions of the 1894 Act, if the said Act has not been repealed
and held that Section 24(1) deals with two specific situations and is a non-
obstante clause. Resultantly, it was held that Clause (b) to Section 24 (1)
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protects the vested rights of the parties and 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, only clarify ambiguity in
legislations. Relevant portion of the said judgment reads as under:-
“8. Section 114 of the 2013 Act repeals the
1894 Act, which ceases to be effective and applicable
from the date of enforcement of the 2013 Act. In terms
of sub-section (2) to Section 114, the repeal shall not
act so as to prejudice or affect application of Section 6
of the General 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
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repeal of the 1894 Act, namely: (i) where an award has
been made, and (ii) where an award has not been made. As
per clause (b) to Section 24(1) where an award under
Section 11 of the 1894 Act has been made, the proceedings
would continue under the repealed 1894 Act,
notwithstanding its repeal. In such cases, the 2013 Act will
not apply. Clause (b) to Section 24(1) is not applicable in
the case at hand as it is admitted that no award was made on
or before 31st December 2013. In the present case, we are
not required to examine Section 24(2) of the 2013 Act,
which provision when applicable prevails over sub-section
(1) to Section 24 of the 2013 Act and has been interpreted
in Indore Development Authority v. Manoharlal and others
(lapse – 5 Judges).
11. In the present case, clause (a) to Section 24(1) of the
2013 Act would apply as the land acquisition proceedings
initiated under the 1894 Act had not culminated into an
award till the repeal of the 1894 Act. Section 24(1)(a) partly
nullifies the legal effect of savings under Section 6 of the
General Clauses Act as it hybridizes application of the 1894
Act and the 2013 Act. While preserving validity of the
acquisition proceedings by issue of declarations under the
1894 Act, it states that all the provisions for determination
of compensation under the 2013 Act shall apply. The
section consciously saves the legal effect of the
notifications issued under Section 4 and/or Section 6 of the
1894 Act and obviates the necessity to issue a fresh
notification under the 2013 Act. This ‘perseveration of the
determination date’ for the computation of compensation
for the awards made under Section 24(1)(a) of the 2013 Act
is a thought through legislative invocation that curtails time
delays and cost escalation of infrastructure projects, as well
as checks the post-acquisition notification malpractices, and
at the same time ensures that the landowners are entitled to
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the benefit of the enhanced compensation as per the 2013
Act.
xxx xxx xxx
12. In Indore Development Authority v. Manoharlal
and Others4 (Lapse – 5 Judges), a Constitution Bench held
that where proceedings for acquisition had been initiated
under the 1894 Act but no award under Section 11 of the
1894 Act had been made, the provisions of the 2013 Act
would apply limited to determination of compensation.
Where, however, an award had been made under the 1894
Act, clause (b) to Section 24(1) protects the vested rights of
the parties. We 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. xxx xxx xxx
14. In paragraph 195 in Indore Development Authority
(supra), the Constitution Bench held that the 2013 Act
operates prospectively. Further, Section 114 of the 2013
Act effects a repeal but with certain savings, in accordance
with Section 24. Thus, the acquisition proceedings are
preserved under the 1894 Act till the stage of making of the
award. Where an award is not made, the provisions relating
to determination of compensation under the 2013 Act
would apply; where the award is made, proceedings would
continue under the provisions of the 1894 Act as if the said
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Act has not been repealed. Our interpretation of Section
24(1) of the 2013 Act respectfully follows this precedent.”
76. The said observations would be totally applicable to the facts
and circumstances of the present case and the argument raised by Mr.
Mittal that Section 24 only provides for pending proceedings is without
any basis. Once the Award had been made and proceedings had become
final, only the 1894 Act would be applicable and, therefore, resorting to
dropping of proceedings by amending the Act was a patent arbitrary action
and was in contradiction to the rights of the landowners, which has been
protected by the Central Act of 2013 and also by the Constitution Bench.
77. The principle of manifest arbitrariness was sought to be
distinguished on the ground that it was the third ground after legislative
competence and violation of fundamental rights. It was submitted that the
enactment was reasonable and it could not be said to be arbitrary minus the
policy, which was not defended and submitted that it was the enabling
provision and once certain type of land, like for the purpose of canal, could
not be put to use the same can be returned to the landowners. While
placing reliance upon the judgment passed in Dharani Sugar and
Chemicals Limited Vs. Union of India and others, (2019) 5 SCC 480, it
was argued that random defects could not be pointed out and the purpose
of the law was directing return of the land, which would be clear from the
Statement of Objects and Reasons and also from the provisions. While
referring to the judgment passed in Manish Kumar Vs. Union of India,
(2021) 5 SCC 1, wherein the three Judges Bench dealt with the Insolvency
and Bankruptcy Code, Mr. Mittal had submitted that only if a provision is
manifestly arbitrary, this Court would step in to declare the same
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ultravires which had been made by a Body of Elected Representatives of
the people.
78. While referring to the another Constitution Bench judgment
in ‘Re: Section 6A of the Citizenship Act, 1955′, 2024 INSC 789,
whereby the principle of manifest arbitrariness had been discussed and the
constituents and extent of judicial review were referred and the limitations
of the Court, it was held that if patently infeasible on the face of it, the
same which would necessitate interference.
79. Reliance can be placed upon the Constitution Bench
judgment passed in State of Tamil Nadu Vs. State of Kerala, (2014) 12
SCC 696, wherein the Apex Court had given a decision permitting the
water level in Mullaperiyar dam to be raised to 142 feet and that the
independent experts would examine the safety angle before the water level
is permitted to be raised up to 152 ft. and the State of Kerala had been
restrained from causing any obstruction to the same. The State of Kerala
had amended the Kerala Irrigation and Water Conservation Act, 2003 by
the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 and
reduced the height of the dam and the same was fixed at 136 feet and, thus,
was challenged by the State of Tamil Nadu. The Apex Court held that the
legislature cannot by mere declaration and enactment overrule and nullify
a judicial decision and the direct object and effect of the impugned
legislation was to overturn the judgment of the Apex Court and to arrogate
to Kerala the power to prevent Tamil Nadu from exercising its legal rights
which have already been upheld by the Court. Resultantly, it was held
while discussing the issue of separation of powers under the Indian
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Constitution that a legislation could be invalidated on the basis of breach
of the separation of powers, if the same is in negation of equality under
Article 14 of the Constitution. It was, thus, held that once a law is enacted,
though by its competence, it could be invalidated being in breach of
doctrine of separation of powers. Resultantly, it was held that once a
judicial decision has been rendered by recording a finding of fact, then
under the pretence of power, the legislature cannot neutralize the effect of
the judgment given after ascertainment of fact and, therefore, it was held
that Kerala legislation was revising the final judgment of this Court in
utter disregard of the constitutional principle. Relevant observations of the
Constitution Bench in the said judgment read as under:-
“126.3. Separation of powers between three organs –
legislature, executive and judiciary – is also nothing but
a consequence of principles of equality enshrined in
Article 14 of the Constitution of India. Accordingly,
breach of separation of judicial power may amount to
negation of equality under Article 14. Stated thus, a
legislation can be invalidated on the basis of breach of
the separation of powers since such breach is negation
of equality under Article 14 of the Constitution.
xxxxxxxxxxxxxxxxxxxxxxxxxx126.7. The law enacted by the legislature may
apparently seem to be within its competence but yet in
substance if it is shown as an attempt to interfere with
the judicial process, such law may be invalidated being
in breach of doctrine of separation of powers. In such
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regard to legislative prescription or direction. The
questions to be asked are;
(i) Does the legislative prescription or
legislative direction interfere with the judicial
functions?
(ii) Is the legislation targeted at the decided case
or whether impugned law requires its application
to a case already finally decided?
(iii) What are the terms of law; the issues with
which it deals and the nature of the judgment
that has attained finality?
If the answer to Questions (i) to (ii) is in the affirmative
and the consideration of aspects noted in question (iii)
sufficiently establishes that the impugned law interferes
with the judicial functions, the Court may declare the
law unconstitutional.”
80. Similar is the position herein, having faced the enhancement,
the State has chosen to introduce the provision of Section 101A, which
would be apparent from the record, which has been produced. The
permissibility for the State to do so would, thus, effect the rule of law to
the detriment of the land loser. The State is also an equal litigant before
the Constitutional Court and has to be placed on the same pedestal as the
private litigant. Merely because of an adverse order passed by a Court, it
cannot be permitted by legislation to nullify the same, but is required to
satisfy the decree under the statute mainly to pay the compensation under
the 1894 Act. If this is permitted, the governance would be a series of
judgments to be nullified and could such a liberty to be given to a private
litigant. Thus, the decision can be termed as a despotic decision, which
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cannot be approved in any manner. Reliance can be placed upon the
observations made in the judgment of Indira Nehru Gandhi (supra),
wherein the amendment made in the election law and the Constitution
(Thirty-ninth amendment) Act was subject matter of consideration.
81. The Apex Court in the said case while examining the issue of
separation of powers between the judiciary, legislature and the executive
held that the legislature cannot be given the power of decision making of
Courts and if permitted to do so, it would be in violation of basic concept
of the Constitution and once an election dispute has been decided, if it was
so permitted to be decided by the amending body, it would be a
repudiation of rule of law by putting the State on a higher pedestal.
Resultantly, it was held that law prescribes the abstract principles by the
application of which individual cases are to be decided and is not a
sentence and that the constitutional law is as much law as ordinary law and
that the decision was a despotic decision without ascertaining the facts of a
case and applying the law to them, though dressed in the garb of law, like
a “bill of attainder”. It was, accordingly, held that the decision of the
amending body, to hold the election of appellant valid, would destroy the
essential feature of democracy and by ascertaining the adjudicative facts
and applying relevant law for determining the real legislation intent of the
people. The decision of the amending body could not be exercised. The
legislative validation by changing the law alone, without ascertaining the
adjudicative facts by judicial process, would not be done, as generality and
equality are two indelible characteristics of justice administrated according
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to law, and equality is the faith and creed of our democratic republic.
Relevant portions regarding the said principle read thus:-
“686. The political usefulness of the doctrine of separation of
powers is now widely recognised though a satisfactory definition of the
three functions is difficult to evolve. But the function of the Parliament is
to make laws, not to decide cases. The British Parliament in its
unquestioned supremacy could enact a legislation for the settlement of a
dispute or it could, with impunity, legislate for the boiling of the Bishop
of Rochester’s cook. The Indian Parliament will not direct that an accused
in a pending case shall stand acquitted or that a suit shall stand decreed.
Princely India, in some parts, often did it.
687. xxx xxx xxx
688. I do not suggest that such an encroaching power will be
pursued relentlessly or ruthlessly by our Parliament. But no
Constitution can survive without a conscious adherence to its fine
checks and balances. Just as Courts ought not to enter into problems
entwined in the “political thicket”, Parliament must also respect the
preserve of the courts. The principle of separation of powers is a
principle of restraint which “has in it the precept, inmate in the
prudence of self-preservation (even if history has not repeatedly
brought it home), that discretion is the better part of valour”. Courts
have, by and large, come to check their valorous propensities. In the
name of the Constitution, the Parliament may not also turn its attention
from the important task of legislation to deciding court cases for which it
lacks the expertise and the apparatus. If it gathers facts, it gathers facts of
policy. If it records findings, it does so without a pleading and without
framing any issues. And worst of all, if it decides a court case, it decides
without hearing the parties and in defiance of the fundamental principle
of natural justice.”
689. xxx xxx xxx
690. I find it contrary to the basic tenets of our Constitution to hold that
the amending body is an amalgam of all powers -legislative, executive
and judicial.”Whatever pleases the emperor has the force of law” is not an
article of democratic faith. The basis of our Constitution is a well-
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planned legal order, the presuppositions of which are accepted by the
people as determining the methods by which the functions of the
government will be discharged and the power of the State shall be used.
82. Thus, the provisions of Section 101A have been introduced
only to put the State at a higher pedestal and give a sentence to the
landowner and make his legal remedy a futile one, which would be clear
from the fact that on account of the de-notification of the land, the State
withdrew its SLPs in the case of acquisition pertaining to Shahbad Feeder,
rather than pursuing its remedies and getting the compensation pegged at a
reasonable rate. If such an exercise is to be permitted, then it would open
a Pandora’s box for the executive to firstly not pursue its legal remedies
and having lost the statutory battle which is based on factual matrix of the
market value assessed on the basis of sale deeds produced by the
landowners, who were seeking their legal right of adequate compensation
as assessed under the principle of Section 23 of the 1894 Act and to get
them nullified by resorting to the provisions of Section 101A. Therefore,
they cannot be permitted to proceed in the manner in which the State has
chosen to do so.
83. We are of the considered opinion that such a course of action
could not have been resorted to by the State Government, who is one of
the litigants and, thus, the rule of law has been violated and latitude which
has been taken by the State by introducing the said provisions, can never
be given to a private litigant. The whole exercise is gross violation of
separation of powers and the dimension of Article 14 of the Constitution
creeps in and therefore, it is a incursion in the judicial process. The
legislature has no right to take a decision and become an adjudicatory
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forum, taking over the power of the Courts. It militates against the basic
structure of the Constitution of India and it is coupled together with the
flagrant, manifest violation of Article 14 and 300A of the Constitution and
if it is permitted to be done by the State, the rule of law would suffer and a
private litigant who has a decree would be left with a piece of paper, which
has happened in the present case, as the SLPs of the State Government had
been withdrawn on the ground that the land had been de-notified. The
execution as such is, thus, stalled on account of de-notification process,
which the State cannot be permitted to do so. It would only lead to a
cascading effect, if such a methodology is permitted and if such State is
permitted to nullify all judicial judgments, it can be termed as a manifestly
arbitrary decision of the State and such liberty cannot be given. If such
liberty cannot be given to a private litigant, how can the State steal a
march over the same. Reliance has rightly been placed upon the judgment
passed in Indira Nehru Gandhi (supra), wherein it was held that the
Prime Minister and Speaker’s power were sought to be judicially reviewed
by amendment of the Constitution to protect the result of the election. The
effort to put it beyond the pale of litigation and the challenge was, thus,
raised on the ground of separation of powers.
84. If one has to look at the Statements of Objects and Reasons
by which the Act was introduced, it would go on to show that the whole
purpose of the amendment was to give a new approach to the issue of land
acquisition for development purposes, with a view to ensure that the
farmers who part with their lands are enabled to share the benefits of
progressive development. Similarly, for the essential acquisitions which
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had been planned long back under the 1894 Act, third party rights had
been created and, therefore, a fine balance must be struck between goals of
development and rights of the individuals, especially to protect the old
essential acquisitions under the 1894 Act. There was only a slight mention
that to ensure that the land is to be returned by the Government in due
process, in case land was acquired under the old Act of 1894. The said
final Statement of Object and Reasons read as under:-
“The enactment of ‘The Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013‘ (hereinafter referred to as the Act
of 2013) by the Parliament has given rise to a new approach
to the issue of land acquisition for development purposes
with a view to ensure that the farmers who part with their
lands are enabled to share the benefits of progressive
development. The acquisitions instead of putting them at a
disadvantage make them a stakeholder as well as a
shareholder in the development process. The Act envisages
a number of provisions not only as regards payment of
compensation but also for rehabilitation and resettlement of
the farmers/landowners.
In the past acquisitions, however, serious issues are
being faced by the State of Haryana in completing the
existing essential infrastructure projects, which have been
held up due to writ petitions/applications seeking lapse of
acquisition proceedings in terms of Sections 24(1) & 24(2)
of the Act of 2013. These essential acquisitions had been
planned long back under the 1894 Act for public purposes,
and in some cases, even third party rights have already been
created. Since these old acquisitions have come to be
adversely hit by lapsing provisions under the Act of 2013, it
has been deemed expedient to create a fine balance between
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1894 Act in minimal number of cases. Hence, to protect the
overall public interest to serve the deprived sections and to
avoid lapsing of acquisition in essential cases, it is proposed
to amend certain provisions of the Act of 2013. Besides, it
is also felt necessary to amend certain other provisions of
the Act of 2013 considering the state specific circumstances
of the State of Haryana, while retaining the beneficial
provisions of the Act of 2013.
As a result, besides, Section 24(1) & 24(2), other
section requiring amendment is Section 46(6). New
sections 87A and 101A are proposed to be added in order to
strike a balance between the needs of acquiring land and
providing fair compensation to the landowners.
There is also a need to ensure that the land is
returned back by the Government as per due process in case
land acquired under the old Act of 1894 becomes unviable
or non-essential. Hence, section 101 A is proposed to be
added to provide for this expediency.
Hence, this Bill to amend ‘The Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013‘ in its
application to the State of Haryana.”
85. The proactive approach as such for the benefits of landowners
apparently was left out and the State being given exclusive right to decide
the issue of essentiality or viability without giving any right to the
landowners. It further facilitates the factum of the argument that it
amounts to a manifestly arbitrary provision.
86. It is to be noticed that in Ashwani Kumar Ghosh’s case
(supra), which has been relied upon by Mr. Mittal, the view as such was as
pointed by him that reference should not be made to the Objects and
Reasons. However, a three-Judge Bench in S.R. Chopra vs. State of
Punjab and others held that constitutional provisions are required to be
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understood and interpreted with an object oriented approach and debates in
the Constituent Assembly may be relied upon as an aid to interpret a
constitutional provision, since the same indicate the thought process as
such of the amendment. In State of Gujarat vs. Mirzapur Moti Kureshi
Kassab Jamat and others, (2005) 8 SCC 534, the seven-Judge Bench of
the Apex Court was examining the provisions of the Bombay Animal
Preservation Act, 1948 and reference to the State of Objects were
accordingly made by holding that the reasons for the purposes of
understanding the background and the antecedential state of affairs leading
upto the Legislation have to be kept in mind. These constitute important
factors and have to be taken into consideration by Courts while judging the
reasonableness of any restriction imposed on the fundamental rights of the
individuals. The facts stated in the Statement of Objects and Reasons and
Preamble are taken to be correct and they justify the enactment of law for
the purpose sought to be achieved. The relevant paragraphs read thus:-
“69. Reference to the Statement of Objects and Reasons is permissible
for understanding the background, antecedent state of affairs in relation to the
statute, and the evil which the statute was sought to remedy. In State of West
Bengal v. Subodh Gopal Bose and Ors., 1954 SCR 587, the Constitution Bench
was testing the constitutional validity of the legislation impugned therein. The
Statement of Objects and Reasons was used by S.R. Das, J. for ascertaining the
conditions prevalent at that time which led to the introduction of the Bill and the
extent and urgency of the evil which was sought to be remedied, in addition to
testing the reasonableness of the restrictions imposed by the impugned
provision. In his opinion, it was indeed very unfortunate that the Statement of
Objects and Reasons was not placed before the High Court which would have
assisted the High Court in arriving at the right conclusion as to the
reasonableness of the restriction imposed. State of West Bengal v. Union of
India, (1964) 1 SCR 371, 431-32 approved the use of Statement of Objects andPage No.98
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Reasons for the purpose of understanding the background and the antecedent
state of affairs leading upto the legislation.
70. xxx xxx xxx
71. The facts stated in the Preamble and the Statement of Objects and
Reasons appended to any legislation are evidence of legislative judgment. They
indicate the thought process of the elected representatives of the people and their
cognizance of the prevalent state of affairs, impelling them to enact the law.
These, therefore, constitute important factors which amongst others will be
taken into consideration by the court in judging the reasonableness of any
restriction imposed on the Fundamental Rights of the individuals. The Court
would begin with a presumption of reasonability of the restriction, more so
when the facts stated in the Statement of Objects and Reasons and the Preamble
are taken to be correct and they justify the enactment of law for the purpose
sought to be achieved.
72. In Sardar Inder Singh v. The State of Rajasthan, 1957 SCR 605, a
Constitution Bench was testing the validity of certain provisions of the
Ordinance impugned before and it found it to be repugnant to Article 14 of the
Constitution and hence void. At page 620, Venkatarama Aiyar, J. speaking for
the Constitution Bench referred to the recitals contained in the Preamble to the
Ordinance and the object sought to be achieved by the Ordinance as flowing
therefrom and held:
“that is a matter exclusively for the legislature to determine, and
the propriety of that determination is not open to question in courts. We
should add that the petitioners sought to dispute the correctness of the
recitals in the Preamble. This they clearly cannot do”.
87. The Constitution Bench in M. Nagraj and others vs. Union
of India and others, (2006) 8 SCC 212, while examining the 77th
Amendment Act, 81st Amendment Act and the 85th Amendment Act
looked at the Statement of Objects and Reasons. In Janhit Abhiyan vs.
Union of India, (2023) 5 SCC 1, while examining the issue of the EWS
reservation, the Statement of Objects and Reasons were kept into
consideration. In Tata Power Company Ltd. vs. Reliance Energy Ltd.,
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(2009) 16 SCC 659, the Apex Court held that the Statement of Objects and
reasons could be looked into for the purposes of deciphering the object and
purport of the Act for true and correct construction alongwith the principle
of harmonious construction are required to be resorted to. A similar view
was taken in State of Tamil Nadu and others vs. K. Shyam Sunder and
others, (2011) 8 SCC 737 that the opinion of the Legislature has to be
seen. In Novartis A.G. vs. UOI, (2013) 6 SCC 1, it was held that Objects
and Reasons shows what were the issues the Legislature tries to address
and what the mischief Parliament wanted to check and what were the
objects it intended to achieve while discussing the issue of patents. In
Khalsa University and another vs. State of Punjab and another, decided
on 03.10.2024, the Apex Court also examined the objects and reasons as
such while falling back on the principle of manifest arbitrariness while
striking down the Khalsa University (Repeal) Act, 2017.
88. It is, in such circumstances, rightly argued that the Objects
and Reasons which had been put forward by the Revenue Minister to the
Speaker of the Haryana Vidhan Sabha for sponsoring the bill never
mentioned that the reasons as such for drawing of the bill which has come
out from the record for financial exigencies and difficulties being faced by
the State. The reading of the Objects would go on to show that the
purpose was for saving the acquisitions in principle, which is also the
primary intention of the Central Act and the repugnancy as such was
apparent. That is why the matter had been sent by the Governor to the
President for his assent under Article 254 (2). The objects and reasons,
thus, suppressed the fact of heavy compensation payouts and it would
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amount to constitutional immorality. It is to be noticed that Section 24 of
the Central Act provides the word ‘notwithstanding’ at two places in
Section 24 itself if the same is to be read with Section 114, the repeal
provision. The whole purpose as such is to protect the acquisitions of
1894 Act. The State amendment under Section 101A undoes everything
what the Central Act provides. Thus, there is a fundamental
incompatibility between the two provisions and in no manner can they co-
exist. Even under Section 24(2), the acquisitions cannot be protected if the
twin conditions of deposit of compensation and taking off possession is
not done, as held by the Constitution Bench in Indore Development‘s case
(supra). The plain statutory context of Section 24, thus, is destroyed by
resorting to the State amendment under Section 101. The mischief has,
thus, to be set right which is sought to be addressed by the Central Act to
save the acquisitions under the 1894 Act. Section 99 of the 2013 Act also
limits the right of the State to change the use of land for which it is
acquired and only if it is rendered useless due to a fundamental change or
because of unforeseen circumstances, the appropriate Government may
use such land for any other public purpose. Section 101 of the Principal
Act also talks about the land remaining unutilized and it can be returned
whereas under Section 101A, new terminology is unviable or non-essential
which had been introduced. The provisions of 2013 Act further go on to
show that the said Act is to be in addition to and not in derogation with
any other law for the time being in force, if reference is made to Section
103 whereas, under Section 107, it provides the State power to enact any
law to enhance or add to the entitlements enumerated under the Act, which
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confer higher compensation than payable under the Act or making
provisions for rehabilitation and resettlement, which is more beneficial
under the Act. The State, thus, by virtue of the amendment, is doing
exactly the opposite by bringing in a provision which is in derogation of
the Central Act. Similar provision under Section 108 also gives the
options to the State to frame a policy for higher compensation than
provided for under the Central Act. Thus, by virtue of the State
amendment, an unlimited and unfettered enabling power has been given to
the State to provide for lapsing of acquisitions which was beyond what
was limited under Section 24(2), which the Apex Court limited on account
of the twin conditions being violated. Thus, the 1894 Act being repealed
was given a fresh lease of life as such by the amendment on the grounds of
land to be de-notified on account of being unviable or non-essential and
the State gave life to the dead Statute by statutory amendment of a
repealed Act and it can only be called as dexterous exercise the Legislature
could ill afford to tread.
89. Thus, it is contrary to the Sections 16 & 48 of the 1894 Act,
provisions of which would prevail as per the issues framed under Question
No.(ii). It was, thus, rightly contended that the amendment has thus,
destroyed the entire structure and scheme of the 1894 Act.
90. Resultantly, we are of the considered opinion that once an
award had been made under the 1894 Act and under Section 24(1)(b) the
State could not have resorted to return of the land acquired under the 1894
Act. More so, when Section 101 of the Central Act 2013 itself provides
that only the land acquired under the said Act remains un-utilized for a
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period of 5 years, the same was to be returned to the landowner or the
legal heirs, as the case may be, or to the appropriate Government, but did
not refer to the acquisition done under the 1894 Act. The said aspect was
also kept in mind by the Constitution Bench in the case of Indore
Development Authority (supra). Reliance can be placed upon the para
No.361 of the said judgment, which is reproduced as under:-
“361. Section 24 deals with lapse of acquisition.
Section 101 deals with the return of unutilized land. Section
101 cannot be said to be applicable to an acquisition made
under the Act of 1894. The provision of lapse has to be
considered on its own strength and not by virtue of Section
101 though the spirit is to give back the land to the original
owner or owners or the legal heirs or to the Land Bank.
Return of lands is with respect to all lands acquired under
the Act of 2013 as the expression used in the opening part
is “When any land, acquired under this Act remains
unutilized”. Lapse, on the other hand, occurs when the State
does not take steps in terms of Section 24(2). The
provisions of Section 101 cannot be applied to the
acquisitions made under the Act of 1894. Thus, no such
sustenance can be drawn from the provisions contained in
Section 101 of the Act of 2013. Five years’ logic has been
carried into effect for the purpose of lapse and not for the
purpose of returning the land remaining unutilized under
Section 24(2).”
91. It is also important to note that the provisions of Section 101
of the Central Act provides twin conditions for the return of the un-utilized
land, which is not provided under Section 101A. The mandatory
provisions, thus, are:- firstly, the land has to be acquired under the Central
Act of 2013 and secondly, it has to remain un-utilized for a period of 5
years from the date of taking over of possession and the same shall be
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returned to the original landowner or, as the case may be, to the land bank.
Thus, a protection is provided that un-utilization is for a period of 5 years
and there is no short term backing out of the acquisition process. There is
no such protection provided regarding un-utilization and the power under
Section 101A is further absolute as could be noticed in the cases of land
acquired for the sub-station, which had been duly utilized, but in spite of
that on account of enhancement, the State has chosen to denotify the land,
after having raised construction on it and also erected a sub-station.
Similar is the case of Shahbad Feeder, whereby after digging the canal and
divesting the landowner of the possession, the land is sought to be returned
after a period of 13 years. Thus, even on that account Section 101A
provides no protection to the landowners. Rather it does not even provide
any time limit to curtail the Government from declaring the land unviable
or non-essential and gives the free play to the Government to denotify at
any point of time and, thus, can also be termed as arbitrary to the extent
that, as noticed above, the longer the Government keeps the land, more the
interest liability against the landowner, as per the policy. Therefore, the
manifestly arbitrary right to denotify the land on its own terms and
conditions, as expedient by the State Government, without even providing
the methodology of payment of compensation, on account of damages is a
ground to strike down Section 101A of the State Act.
92. Thus, in view of the above discussion, keeping in view the
objects and reasons of the Act and that the purpose was for giving benefits
to the land owners under the 2013 Act and to ensure that the earlier
acquisitions do not lapse which had been done under the 1894 Act and the
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non-mentioning as such in the objects and reasons that the reason for
amendment was for the financial exigencies without involving the land
owner as such who had Court orders in his favour and, therefore, acting as
a Judge in its own manner, the State acted arbitrarily in getting the
amendment made under Section 101A and has thus, put the land owners to
total disadvantage. The said action of the State can, thus, be safely termed
as a manifestly arbitrary action, which is a good ground to strike down the
Legislation and resultantly, we answer question No.(ii) against the State
and strike down Section 101A of the State Act and declare it ultra vires.
Question No.(iii):
Whether the Policy dated 14.09.2018 was a manifestly
arbitrary policy and not sustainable and whether the
landowners could be put twice to the pain of litigation
at the convenience of a welfare State and whether the
State could recover the amount of compensation
against an un-willing landowner by resorting to the
forcible method of recovery under the Land Revenue
Act without any right of option or participation or
willingness?
93. A perusal of the policy dated 14.09.2018 would go on to
show that the same was notified to maintain the transparency and
consistency to implement provisions of Section 101A of de-notifying the
acquired land and to regulate the procedure as such on account of the
amendment made in the State Act. The factum of the provisions of Section
101A, providing that the twin condition of un-viable or non-essential could
be the reason with the State to de-notify the land on such terms, which was
being acquired under the 1894 Act for the public purpose. The terms have
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also been left to the discretion of the Government, as considered
expedient, including the payment of compensation on account of damages.
Under the amendment, the definition of un-viability or non-essentiality has
not been provided in the Act by the legislature of the State Government
and it has left it open to the discretion of the Executive. As per the
explanation of Clause 7 of the Policy in question, wide ranging and all
encompassing definitions have been given for the un-viability of the
acquired land which has become non-suitable for the utilization (i)
including due to act of nature or; (ii) increase in acquisition cost as a result
of any reason including any enormous enhancement due to Court orders;
(iii) material or drastic change in policy of the Government wherein such
extenuating circumstances would emerge in the opinion of the
Government to be recorded as reason that it would not be in the public
interest to continue with the acquisition and (iv) change in socio-economic
and geographical factors in respect of the acquired land or for any other
reasonable cause. Under the heading of non-essentiality, the whole or part
of the acquired land which cannot be practically utilized for the purpose
for which it was acquired to any of the reasons enumerated in explanation
(1) or better alternatives having become available for the project and it
being not possible to continue with any alternative public purpose in
respect of acquired land was a ground as such for de-notifying the land in
question.
94. As noticed the un-viability was on account of the
enhancement in compensation and as being answered in question no.(iv)
on account of the un-willingness of the State to pursue its legal remedies to
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its logical end and the policy was a one-way traffic as the interest of the
landowner was never kept in picture at all, which was never the concept of
Section 101A, as per its objects and reasons, except for the fact that they
were not liable to return the solatium, which would amount to 30% under
the 1894 Act. The balance amount was liable to be paid back alongwith
simple interest would be more detrimental than the fact of retaining 30%
solatium. In similar circumstances, Section 48-B of the Amendment made
by the State of Tamil Nadu in 1894 Act was subject matter of challenge in
Anti Corruption Movement (supra). It is important to note that the said
amendment was upheld by noticing that it was worded in such a manner
that the land could be re-transferred to original owner, who was willing to
repay the amount paid to him under the Act and, therefore, it was not a
unilateral action as such, but a bilateral understanding between two
persons. Section 48-B of the Land Acquisition (Tamil Nadu Amendment)
Act, 1996 reads as under:-
“48-B. Transfer of land to original owner in certain cases
Where the Government is satisfied that the land vest in the
Government under this Act is not required for the purpose
for which it was acquired, or for any other public purpose,
the Government may transfer such land to the original
owner who is willing to repay the amount paid to him under
this Act for the acquisition of such land inclusive of the
amount referred to in sub-section(1-A) and (2) of Section
23, if any paid under this Act.”
95. The Division Bench in the said case had noticed that there has
to be willingness of both sides and whether it causes hardship or not and it
was case of mutual agreement, while referring to the judgment in
Southern Railways vs. S. Palaniappan, 2005 (2) CTC 721. In the said
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case, the Division Bench of the Madras High Court was dealing with the
de-notification of acquired land, which was utilized for the public purpose
of laying the railway track for Salem-Karur broad gauge railway line
project by invoking the urgency clause, as provided for under Section 17
of the 1894 Act, which has also been done in the case of Shahbad Feeder.
The height had been increased to/by about 40 ft to 50 feet by doing
necessary escalation and resultantly, it was held that in view of the
provisions of Section 48B of the Land Acquisition (Tamil Nadu
Amendment) Act, 1996 that reconveyance could only be done if the
original owner was willing to repay the amount and it could not be a
unilateral action. The argument raised by the Advocate General was, thus,
repelled by noting that the Section would read differently. Relevant
portion of the said judgment reads as under:-
“17. The learned Advocate General urged that
Section 48-B permits the State Government to transfer back
the land to the original land owner unilaterally even after
the land stood vested in the State Government under
Section 16 of the Land Acquisition Act. We do not agree. If
the intention of the legislature in introducing Section 48-B
was to permit unilateral re-conveyance by the State
Government of the land which is already vested in it, then
Section 48-B would have read as follows:-
“Where the Government is satisfied that the land vested
in it under this Act is not required for the purpose for
which it was acquired or for any other public purpose,
the Government may transfer back such lands to the
original owner and realise the amount paid as
compensation to the original owner”.
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18. The fact that Section 48-B has not been worded in the
above manner shows that it was not the intention of the
legislature to permit a unilateral re-conveyance of land
which has already been vested in the State Government
under Section 16 of the Land Acquisition Act, without the
willingness of the erstwhile land owner.
19. It is a settled principle that ordinarily we should go by
the plain and literal meaning while interpreting a statute,
and should not twist or distort its language. If we accept the
submission of the learned Advocate General we will be
twisting and distorting the language of Section 48-B of the
Act and we will be recasting it as mentioned above. In our
opinion, Section 48-B is very clear. However, if the
interpretation canvassed by the learned Advocate General is
accepted we will be deleting the words “original owner who
is willing to repay the amount paid to him under this Act”
from Section 48-B of the Land Acquisition Act.”
96. It was, accordingly, held in case of Anti Corruption (supra)
that Section 48-B not only protected the interest of the State, but also
required the State to get the consent of the erstwhile landowner before it
could re-convey the land to him under Section 48-B of the Act and the
State Government could not act unilaterally.Resultantly, it was held that
the amendment made could be struck down on two grounds (i) for lack of
Legislative competence, and (ii) Violation of Fundamental Rights
guaranteed under Part-III of the Constitution of India. Relevant portion of
the judgment passed in the case of Anti Corruption Movement (supra)
reads as under:-
“34. We respectfully do not agree with the learned
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the interest of the State Government which wants to re-
convey the land which it had acquired, but in such a case
the State Government must get the consent of the erstwhile
land owner before it can re-convey the land to him under
Section 48-B. The State Government cannot act unilaterally
in this connection as already held above.”
97. The fact that clause 13 of the policy in question further
provides that once an order has been passed, which has been approved by
the Cabinet, on account of the decision of the Cabinet to allow the de-
notification, the landowners or their legal heirs shall return the
compensation, excluding solatium paid to them, alongwith simple interest
payable on deposits from the date of receipt of compensation by them till
the date of return of compensation, by depositing the same in the
designated account as specified in the order under Clause 13. Under
Clause 14 (ii), the owners or their legal heirs, in case, fail to return the
compensation, the same was to be recovered as arrears of land revenue
from the returned land or from any other immovable property. The land,
even after de-notification, shall continue to vest in the Government till the
return of the compensation, which further put the final nails in the coffin
of the landowner and not only to him but to the next generation as well.
Thus, in effect, it would mean that a person, who re-invested elsewhere
after number of years, would be asked to deposit all the amount back with
the State, alongwith interest excluding solatium and a land loser who
might have invested elsewhere would have nothing in the hand, having
been divested for the first time by the acquisition of land under the
principle of eminent domain. For the second time, the principle had been
put in place to recover the amount alongwith interest against the unwilling
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landowner and then, in case not able to recover the amount, give a right to
recovery against other immovable property of the landowner without any
charge being created on the said land and, therefore, for all practical
purposes, taking over the property of the individual, in furtherance to the
State’s benefit, who is an unsuccessful litigant.
98. The Division Bench in the case of Anti Corruption
Movement (supra) had also noticed this argument raised and repelled the
same only on account of the fact that the Section as such was only
applicable and gave a right as such to the landowners to apply for the
transfer, in view of the provisions and, therefore, the challenge was
repelled. In the present case, it has already been noticed that the policy in
question provides no such window to the landowner, of taking back the
land at any point of time. The factual matrix in the Sirsa acquisition would
go on to show that after the de-notification process, the landowners had
approached the State that their land was acquired by the State in the year
2008-2009, against which they had, at that point of time, protested for
three months. Now, after a period of 10 years, the State Government has
de-notified the acquisition and asked them to return the compensation
received by them alongwith interest, and both times the consent of the
landowner had not been taken and now they have no money left to return.
50% of the land had been de-notified and there were some landowners
who may be satisfied with the acquisition and the Government could not
take a decision to return the land where the landowners were happy with
the decision. At the time of acquisition, the price the landowners were
getting was Rs.2 crore per acre as per the representation, but at present
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there was no buyer, and the land was falling within the licensed area, the
same was fully developed and the rate of the adjoining land of the farmers
was below the reasonable price. It was also submitted that the authorities
were planning to acquire the land again for grain market and timber
market and, therefore, the land could be used for other public purposes and
from the land which had been de-notified, the HSVP had already given the
land to NHAI for construction of National Highway.
99. The said representation, as noticed, was brushed aside on the
ground that the legal opinion had already been taken from the Advocate
General, without again applying any mind, that the land could have been
used for some other public purpose, which was permissible by law. Such
an absolute and arbitrary power would, thus, violate the provisions of
Article 39(b) of the Constitution, which provide that the ownership and
control of the material resources of the community are so distributed as
best to subserve the common good. The methodology which has been
followed by the State, and the policy which has been framed, suffers from
manifest arbitrariness, which will further be dilated in question No.4 and
the judgments of the Apex Court have to be kept in mind and the said
principle would also be directly applicable herein. Therefore, we feel that
the policy which was framed, suffers from inherent arbitrariness, which
gives the State the absolute power as such, which cannot be permitted,
keeping in view the background why the State had decided to de-notify the
land, in the present facts and circumstances.
100. The position is even worse in the acquisition which was done
for the Shahbad Feeder in CWP No.9622 of 2019, wherein the Award had
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been passed on 02.12.2005 and the de-notification was done after 13 years
on 03.08.2018. The landowners had lost the challenge to the acquisition
proceedings when the Division Bench of this Court came to the conclusion
that the land was acquired for recharging of the water table and the matter
was taken to the Apex Court without any success. Only on account of the
enhancement in the market value, the Apex Court had directed to deposit a
sum of Rs.50 lakhs per acre with the Reference Court, but the State chose
to wriggle out of its liabilities by de-notifying the land and leaving land
losers in a lurch by withdrawing the SLPs.The request of the landowners
as such was that a canal had already been constructed and fertile earth be
put in it and the land be levelled and even an electric line had been raised
alongside the canal.
101. Another factor to be noticed is that the State has time and
again, subject to its convenience, defended the litigation and then gone on
to hold that there is no such legal right for the return of land under Section
101A. The Division Bench of this Court in CWP No.15174 of 2023 ‘The
Press Employees and Friends Co-operative Group Housing Society
Ltd. Vs. State of Haryana and others‘ decided on 19.07.2023, was
considering the case of the land losers, who sought the release of the land
under the policy dated 14.09.2018 on the ground of un-viability and non-
essentiality, apart from the fact that the ground of parity was also raised. It
was, accordingly, held that the power of the State Government to exercise
de-notification had been curtailed and did not vest as discretionary power
with the State Government and, therefore, no mandamus could be issued,
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since the acquisition proceedings had already been terminated way-back in
the year 2003.
102. It is pertinent to notice that in another bunch of petitions, the
lead case of which was CWP No.12432 of 2023 ‘Anil Suri & another
Vs. State of Haryana & others’,when a similar relief had been sought by
the landowners for release of land, a finding was recorded that the State
has extended the scope of Section 101A, which was wholly impermissible,
by way of issuance of policy, and in such circumstances, the State
Government had undertaken before the Division Bench that they would
recall the policy and scheme. Even a letter dated 21.09.2023 had been
placed on record, from the Financial Commissioner, Revenue and
Additional Chief Secretary to the Government of Haryana, Revenue and
Disaster Management. The writ petition, thus, was disposed of, keeping in
view the stand of the State, way-back on 20.10.2023. Now, we are
informed that the policy still stands and rules are yet to be framed. It is,
thus, apparent that the State is taking a contrary stand wherever it suits
them and, thus, misusing the policy blatantly, to grant relief where it so
wishes. Relevant portion of the judgment passed in case of Anil Suri
(supra) reads as under:-
“69. Pursuant to the above extracted order, the learned State
counsel, on 21.09.2023, has placed on record a letter
addressed to the office of Advocate General, Haryana by
the office of Financial Commissioner, Revenue and Addl.
Chief Secretary to the Government of Haryana, Revenue
and Disaster Management, wherein, it is recorded that the
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Government and will be notified after approval from
the Council of Ministers. (emphasize specifically).
70. In such a situation, when the policy (supra) is in the
process of being withdrawn by the State Government, thus
it lacks any vigour to thereby sustain the writ claims.”
103. In Raghubir Singh and another vs. State of Haryana and
others, (2022) 4 SCC 728, the Apex Court examined the right of the land
owner, as such, to get a decision from the State whether the land had
become unviable or non-essential and the State would be obliged, in larger
public interest, to de-notify such land on such terms and conditions. It
was, accordingly, held that the provision was not in the nature of giving a
vested right to the land owners regarding de-notification of the acquired
land but it follow that upon de-notification, the land in question must be
returned to the erstwhile owners. It was also noticed that the validity of
the said Section was not subject matter of challenge for the time being.
The relevant portion reads thus:-
“7. The Statement of Objects and Reasons for inserting
Section 101A of the 2013 Act by the State Legislature, makes it
amply clear that there is also a need to ensure that land is returned
back by the State Government as per the due process, in case the
land acquired under the old 1894 Act becomes unviable or non-
essential. Further, Section 101A of the 2013 Act is proposed to be
added to provide for such expediencies.
8. Keeping in mind the intent and purport of the State
amendment to the principal Act of 2013, the exposition of the
Constitution Bench in reference to the issue of lapsing under Section
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to denotify the land acquired under the 1894 Act for stated reasons
in public interest.
9. Notably, the validity of Section 101A is not the subject
matter of challenge before us from any quarter, for the time being.
As long as, the provision exists on the Statue Book, it enables the
State Government to take appropriate decision in public interest on
the factum of the lands in question, having become unviable or
nonessential. This power vested in the State is, indeed, coupled with
a duty to periodically evaluate the situation or at least soon after it is
brought to its notice by the erstwhile land owners or by any public
spirited person that the immovable public property is being wasted,
unutilized or has become unviable or nonessential. After receipt of
such representation, it would be the bounden duty of the State to
examine the relevant facts and form suitable opinion as may be
advised, regarding lands having become unviable or nonessential or
not. If it is satisfied that the acquired lands have become unviable or
non-essential, it is expected of the State, nay the State would be
obliged in larger public interest to denotify such land on such terms
and conditions as may be necessary.
10. Thus understood, there is no reason to assume that the land
owners cannot request the State Government to consider such
representation inviting a decision of the State, within the realm of
Section 101A of the 2013 Act. This provision is certainly not in the
nature of giving a vested right to the land owners regarding
denotification of the acquired land nor does it follow that upon
denotification, the lands in question must return to the erstwhile
owners only. It will be open to the State Government to denotify the
acquired land on such terms and conditions as may be expedient, in
public interest. Thus, the provision empowers the State to denotify
the lands acquired under the 1894 Act.”
104. The said judgment was also discussed in SLP (Civil) No.
16421 of 2021, Ram Swaroop (D) through L.Rs. and another vs. State of
Haryana and others, decided on 15.11.2021, by noticing that there was no
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such vested right and once there was a rejection as such by the State, the
litigation was only an attempt to continue to be in possession of the land,
on one pretext or the other, to defeat the public purpose for acquisition of
land for development and utilization in a planned manner since the
acquisition was for Section 51, Gurugram by noticing that it was the third
round of litigation, whereas the first round was pertaining to challenge on
merits of the acquisition. In the second round, the issue of lapsing was
dealt with and the third round was on the ground of dropping of
acquisitions under Section 101A. It is to be noticed that the State, though
has held out that it would withdraw the policy, continues to keep it in force
and, strictly, contempt is made out as the co-ordinate Bench has already
noticed that the policy was under active consideration for withdrawal way
back in September, 2023. Even otherwise, if Section 101A goes, the
policy would necessarily have to be quashed, as it has been issued to
regulate the procedure as such under Section 101A.
Question No. (iv):
Whether the action of the State Government in de-
notifying was tainted, being malafide and manifestly
arbitrary action, on account of having failed to pursue
its legal remedies regarding the increase in cost of
acquisition and liable to be struck down on the ground
of being violative of Article 21 read with Article 300A
of the Constitution having also not followed the
procedure laid down in the policy dated 14.09.2018?
105. The factual matrix has already been noticed as how the State
had proceeded in scuttling the right of the landowners to get the adequate
market value awarded by a competent Court of jurisdiction in at least three
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acquisition proceedings. The factum of Sirsa acquisition would go on to
show that on account of the enhancement of the market value to the tune
of Rs.96,80,000/- per acre by the Reference Court for which possession
had been taken on 28.09.2013 vide the Award, the State did not file any
SLP against the interim order dated 14.03.2018, whereby directions were
issued in the appeals filed by the State to deposit the amount of
Rs.84,70,000/- per acre with the Reference Court. Rather, an application
had been filed for extension of time to make the payment and the matter
was, thereafter, processed by the office and the options given were to
make the payment as per the interim order or to return the land to the
landowners or give them alternative land as per Section 101A. The Policy
dated 14.09.2018 was already in force when the opinion of the Advocate
General was taken on 04.12.2018 and the State was bound firstly having
notified the said policy to inform the Government and seek approval from
the Government for proceeding in accordance with the provisions given in
the said policy. The matter was to be referred to the District Level Sub-
Committee under Clause 4 of the Policy, which was to be presided over
the Deputy Commissioner of the District and five members comprising of
the Sub-Divisional Officer of the concerned Sub-Division; District
Revenue Officer, concerned Executive Engineer, PWD (B&R); Deputy
Director, Agriculture and the Senior Most Officer of the acquiring
department posted in the district as Member Secretary. Thereafter, the
District Level Sub-Committee had to see whether the land had become
unviable or non-essential and also examine the extent of payment of
compensation, if any, to the landowners, on account of damages, if any,
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sustained by them due to the acquisition of the land and also, to see the
encumbrances created on or against the acquired land or part thereof, in
case part utilization of the land was done. The reasons were to be given
and a report was to be submitted while referring the matter to the acquiring
department, as per Clause 9 of the policy and, thereafter, approval was to
be given to place the matter before the Ministerial Sub-Committee, as per
Clause 10. The report of the Ministerial Sub-Committee had also to keep
in mind the factors laid out in Clause 7 and was to be put up for
consideration and decision by the Cabinet at the earliest as per Clause 11
and the Cabinet, under Clause 12, may allow the de-notification. It was
only in such circumstances, after publishing the notification by the
concerned Administrative Secretary of the Department, the information
was to be given to the landowners or the legal heirs. The said exercise
having not been carried out, as noticed on the perusal of the original file
and referred to above in paragraph Nos.9 and 10, we are of the considered
opinion that the decision making for de-notification of the acquisition was
vitiated on account of not following the procedure laid down and was
violative as such the provisions of Article 19 and 300A of the Constitution.
106. It is to be noticed that the State had taken possession of the
land way-back on 12.01.2011 and thus, de-notification process on
10.01.2019 eight years later, would put the landowners to extreme
hardship, who would have proceeded to invest the amount received from
the State elsewhere, as it is not disputed that Rs.229.58 crores had been
paid to the landowners out of Rs.254.51 crores. The factum of the
landowners of having re-invested elsewhere and now having been asked to
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return the amount, which is, on the face of the order, an arbitrary action of
the State and for their own mistake, due to not able to contest the
enhancement matter in a proper manner, the landowners as such cannot be
asked to pay back the amount along with simple interest after exclusion of
solatium. Thus, in effect, the longer the State would delay, the more the
adverse effect on the landowner, as the interest element would then rise.
The power of recovery of the compensation amount, by way of resorting to
the Land Revenue Act, is another drastic, manifestly arbitrary provision
incorporated in the policy, in furtherance of its inability and lack of will, as
such, even to pursue the legal remedy in a proper manner and for its own
negligence, put its loss upon the poor landowner, who had already been
deprived of his prime agriculture land at the first instance and was helpless
under the principle of eminent domain.
107. Similarly, if one examines the factual matrix of the land
acquired in village Shikhopur, the Award was passed on 31.07.2013 and
Government sought to withdraw from the notification after six year later
on 22.11.2019, only on account of the fact that the market value had gone
up. The allotment had also been made to the beneficiary department-
HSVPN and the State could not cancel the same, as it was no longer the
owner of the land in question. Reliance can be placed upon the judgment
passed in Tamil Nadu Housing Board Vs. L. Chandrasekaran, (2010) 2
SCC 786. In the said case, the Apex Court noticed that once the land had
been allotted to the Board, the Court could not exercise its power under
Section 48B Act of the Tamil Nadu Land Acquisition (Amendment) Act,
1997 and it could not be compelled to reconvey the land to the original
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owner, since the land had already been transferred to the Board and the
latter had utilized substantial portion thereof, for execution of the housing
scheme and other public purposes. The judgment of the learned Single
Judge was restored, while setting aside the judgment passed by the
Division Bench, whereby it had directed such reconveyance. It was,
accordingly, held that once the Government had transferred the acquired
land to the appellant-Board, the allotment could not be cancelled as such
by reconveying the land, which is also applicable in the facts and
circumstances of the present case, since it has come on record that
allotment was made to the HVPNL.
108. In the meantime, the work on the sub-station had also been
completed, as noticed, and all expensive machinery had been installed at
the cost of almost Rs.60 crores. Instead of proper application of mind, on
a short note the matter was put up before the Chief Minister by the then
PSTCP on 19.11.2019 and the landowners were again put in a lurch and
within two days the decision was taken to denotify on 22.11.2019 again
without any reference to the policy dated 14.09.2018, which was already
in force. Thus, the procedure prescribed was never followed and smudges
of total non-application of mind and the arbitrary action of the State
choosing to use the same against the landowners for its lack of will,
without any effort to resort to the legal remedies and it could have
attempted to at least distinguish the cases and peg down the market value
at the reasonable rate, if possible. Unfortunately, in spite of directions in a
form of suggestions issued to the Chief Secretary, also show the attitude of
the State, who chose to stand by its arbitrary action and at the highest
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level, failed to notice that the procedure prescribed had not been resorted
to. Once there is a statutory policy in force, again shows total lack of
application of mind and disregard to the plight of the landowners and the
one-way traffic use of principle of eminent domain in the reverse to return
the land to the landowners and seek to recover the amount paid alongwith
interest has been resorted to. Resultantly, the said action cannot be
sustained in any manner. It was always open to the State to see that out of
the 15 acres of the land, how much of the land it needs for the electric sub-
station and whether balance land could be used for some other public
purpose, as per settled principles of law, which it was unwilling to
examine, therefore, we have no option but to strike down the action of the
State, even for village Shikhopur for which land acquisition proceedings
had been dropped vide order dated 22.11.2019.
109. It has already been noticed in the factual matrix of the
Shahbad Feeder that the notification was issued on 20.09.2004 under
Section 4 of the 1894 Act read with the emergency provisions under
Section 17 of the 1894 Act for acquiring 308.347 acres of land. The
challenge was repelled by the Division Bench on 26.09.2005 in the case of
Mani Ram (supra). The SLP was dismissed on 06.01.2006 and in the
meantime the Award was passed on 02.12.2005. The enhancement was
done from Rs.8 lakhs per acre for chahi land and Rs.14 lakhs per acre for
prime land to Rs. Rs.1,16,83,000/- per acre on 05.05.2016. The State had
challenged the same by filing the SLPs in Sardul Singh‘s case, whereby
the Apex Court had directed to deposit Rs.50 lakhs per acre on
15.05.2018. The withdrawal from the acquisition was done on
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03.08.2018, on account of Section 101A being notified on 24.05.2018.
After 13 years and despite utilization of the land for the construction of the
canal, the de-notification had been done.
110. Mr. Mittal has submitted that the viablity of the project was a
valid reason on account of the decision of the State Government, as the
acquisition was for three sets of irrigation channels i.e. Shahbad Feeder,
Nalvi Distributary and Shahbad Distributary, whereby the water was to be
taken from Yamuna towards the SYL Canal and also to be put in the
Saraswati-Markanda River. The record would go on to show that
1020.0313 acres was constructed for three distributaries and Rs.192.33
crores had been paid to the landowners for the said land. The expenditure
of Rs.111.167 crores of three channels was done. The channel was to
irrigate 92532 hectares area and on account of the resistance of farmers,
the abandonment was done of the scheme and the area was reduced to
46266 hectares of land. On account of the assessment being Rs.2887
square meters by this Court, the State Government apparently shied off to
further acquire the land. Thereafter, on account of the legal opinion taken
from the Advocate General Office, the matter was put up before the
Cabinet on 26.09.2017 to approve the land being de-notified. It was also
noticed that the amendment in the Act was also sent to the Government of
India. Accordingly, it was proposed that the land be handed back to the
farmers after putting it in original shape, in spite of paying compensation
and by filling the dug portion of channel by taking earth from nearest
Panchayat land to avoid any dispute at a later stage. Thus, from the factual
matrix, it would be clear that only on account of heavy compensation and
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the State being unable to defend its case and the Apex Court asking them
to deposit Rs.50 lakhs per acre, was the primary reason, whereby the
project was sought to be dropped, in the absence of any such provision. At
that point of time on 20.03.2017, the Principal Secretary of the Irrigation
Department had opined that there was no such provision for dropping the
proceedings, since the 1894 Act was in play.
111. A Committee comprising of two Chief Engineers and one
Engineer-in-Chief of the Irrigation Department had also been constituted,
which had also given its opinion that after the decision of the Apex Court
in the SLP not in favour of the State, the land of the Shahbad-Nalvi
Scheme may be de-notified. On 03.05.2017, an Additional Advocate
General gave opinion contrary to the provisions of the Act that there was
no clear mandate of the provision for releasing the land in question, but on
account of the high compensation suggested that the notification be issued
under Section 101 of the 2013 Act. It was mentioned that the matter be
put up before the Chief Minister, who further desired to put up the same
before the Council of Ministers for its consideration. The Council of
Ministers had met on 27.09.2017 and approved the decision for de-
notifying the land. It was noticed that the amendments had not been
approved by the Government of India and the request was made that the
Government decision be extended upto 27.03.2018. It was also noticed
that the amendment was likely to be approved by the Government of India
shortly. On 22.02.2018, it was noticed that the Executing Court had
attached the DDOs of the Heads of the Judgment Debtors. Thus, it would
be apparent that the sole consideration which was bothering the State was
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the heavy compensation which had to be deposited in view of the
directions of the Apex Court and was the reason to push through the
amendments as such.
112. The Expert Committee from the Irrigation Department of the
Four Chief Engineers had also given another report dated 20.07.2018,
wherein it was noted that in the absence of any relief granted from the
Apex Court and the Cabinet decision for de-notifying the Dadupur-Nalvi
Scheme, the land could be utilized by transferring to the Forest
Department for construction of upstream storage dams and to fill the same
was not feasible and also recommended that some portion of the land was
required for the construction of the road approximately 29 acres. Relevant
portion of the said report reads as under:-
“Accordingly “Recommendations of the Committee on the
issue regarding de-notfication of Dadupur Nalvi Irrigation
Scheme are as under:-
It is found that the land acquired before 2004 i.e.
from 1987-1990 is not under any kind of litigation in
any Court and the same may be retained with the
Department. The total land acquired during 1987-
1990 is about 190.67 acres and this land can be
better utilized for recharging of ground water or can
be transferred to Forest Department in lieu of land
required for construction of upstream storage dams,
which is a prestigious project of Government and
Department has given an undertaking to Forest
Department for transfer of about 550.00 acres of
land in lieu of construction of these dams.
It has been observed that huge quantity of earth may
be required to bring the land of Dadupur Nalvi
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existing section of Shahabad Feeder, Shahabad
Distributary and Nalvi Distributary upto Natural
Surface Level (NSL). If the land is to be brought to
its original shape by department then it may be an
unending process, as the complete land may not be
returned to all the original owners in one go, as the
land is to be returned to the original owners oply if
they are willing to take their land back at the terms
& conditions to be decided by Government.
So, it is decided that damaged compensation may be
provided to the original land owners, who are willing
to take their land back at a rate keeping in view the
availability of earth at the nearest location and cross
sectional area of the channel.
The Committee observed that a road from RD 8.964
km to RD 14.933 km of Shahabad feeder has been
constructed by: PWD (B&R) Department and is
serving as a Bypass for Jagadhri Town, Connecting
Jagadhri Chhachhrauli road with Jagadhri – Ambala
Road. It is found that at present heavy traffic is
plying on the road and Jagadhri Town has got
relieved from heavy traffic due to construction of
this road. A total of about 29.0 acres of acquired land
of Dadupur Nalvi Scheme has been utilized for
construction of this road. Out of this about 23.0 acres
land was acquired during 1987-1990 and about 6.0
acre land was acquired from 2004 onwards. The
committee is of the view that this 6.0 acres land
which was acquired from 2004 onwards may also be
retained by Department as the same is being used for
public purpose and heavy traffic is plying on this
road at present.
Committee is also of the opinion that the land
owners of this 6.0 acres land may be compensated by
providing equivalent land from within the land
acquired during 1987-1990, if the same is to be
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retained by Government. Further an approach road
connecting this 6.0 acres compensated land with the
nearby existing road may also be retained by the
department for providing smooth access to the
farmers as shown in map attached at Annexure-l.
The above recommendations of the Committee are
submitted for perusal and consideration of the
Government.
113. Apparently, no such heed was paid to the said
recommendations and on account of the amendment taking place on
24.05.2018, the action was taken to de-notify the land on 03.08.2018 under
Section 101A. The factual matrix, thus, would go on to show that the
arbitrary manner in which the de-notification was processed from the
initial dates, in the absence of any such provision would go to show that
the only motivating reason behind the State Legislature to bring the
amendments as noticed in Question No.(i) and (ii), was financial
exigencies and, therefore, the sole consideration was, being a litigant, who
was not able to achieve its target through the Courts of Competent
jurisdiction and having failed to peg down the price of the land at a
reasonable rate. Rather, no attempt was made to get the SLP decided and
only interim orders had been passed by the Apex Court to deposit Rs.50
lakhs per acre, which weighed with the competent authority to de-notify
the whole process after a period of 13 years and the arbitrariness of the
action on account of the law being framed to suit the litigant has already
been discussed in Question No.(ii) and (ii) and, therefore, it can be safely
said that the action was manifestly arbitrary.
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114. The Apex Court in the case of Indira Nehru Gandhi (supra)
held that rule of law is to be conditioned by law and no one can be
exposed to the arbitrary will of the Government and while comparing
equality and arbitrariness, it was held that there are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. The discussion above would go on to
show that the absolute monarch power has been exercised by the State
under the whims and fancies of the Executive, without paying any heed to
the Policy framed and, thus, it is the duty of the Constitutional Court to
ensure that the arbitrary, fanciful or oppressive actions are struck down, as
the landowners cannot as such be put to loss of land being acquired and
forced to be bought back alongwith interest.
115. In Sunil Batra Vs. Delhi Administration and others, (1978)
4 SCC 494, the Apex Court held that for what is punitively outrageous,
scandalizingly unusual or cruel and rehabilitatively counter-productive,
unarguably unreasonable and arbitrary and inflicts the procedural
unfairness would, thus, fall foul of Article 21 of the Constitution. In such
circumstances, the observations flowed in the case of Shayara Bano
(supra) that the statutory law would be struck down, if it is found to be
arbitrary and in the present case the following observations would be
directly applicable:-
“87. The thread of reasonableness runs through the entire
fundamental rights Chapter. What is manifestly arbitrary is
obviously unreasonable and being contrary to the rule of
law, would violate Article 14. Further, there is an apparent
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McDowell (supra) when it is said that a constitutional
challenge can succeed on the ground that a law is
“disproportionate, excessive or unreasonable”, yet such
challenge would fail on the very ground of the law being
“unreasonable, unnecessary or unwarranted”. The
arbitrariness doctrine when applied to legislation obviously
would not involve the latter challenge but would only
involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid
grounds, therefore, do not seek to differentiate between
State action in its various forms, all of which are interdicted
if they fall foul of the fundamental rights guaranteed to
persons and citizens in Part III of the Constitution.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
95.On a reading of this judgment in Natural Resources
Allocation case, it is clear that this Court did not read
McDowell (supra) as being an authority for the proposition
that legislation can never be struck down as being
arbitrary.Indeed the Court, after referring to all the earlier
judgments, and Ajay Hasia (supra) in particular, which
stated that legislation can be struck down on the ground that
it is “arbitrary” under Article 14, went on to conclude that
“arbitrariness” when applied to legislation cannot be used
loosely. Instead, it broad based the test, stating that if a
constitutional infirmity is found, Article 14 will interdict
such infirmity. And a constitutional infirmity is found in
Article 14 itself whenever legislation is “manifestly
arbitrary”; i.e. when it is not fair, not reasonable,
discriminatory, not transparent, capricious, biased, with
favoritism or nepotism and not in pursuit of promotion of
healthy competition and equitable treatment. Positively
speaking, it should conform to norms which are rational,
informed with reason and guided by public interest, etc.
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100. To complete the picture, it is important to note that
subordinate legislation can be struck down on the ground
that it is arbitrary and, therefore, violative of Article 14 of
the Constitution. In Cellular Operators Association of India
v. Telecom Regulatory Authority of India, (2016) 7 SCC
703, this Court referred to earlier precedents, and held:
“Violation of fundamental rights
42. We have already seen that one of the tests for
challenging the constitutionality of subordinate
legislation is that subordinate legislation should not
be manifestly arbitrary. Also, it is settled law that
subordinate legislation can be challenged on any of
the grounds available for challenge against plenary
legislation.
(See Indian Express Newspapers (Bombay) (P) Ltd.
v. Union of India [(1985) 1 SCC 641: 1985 SCC
(Tax) 121], SCC at p. 689, para 75.)
43. The test of “manifest arbitrariness” is well
explained in two judgments of this Court. In Khoday
Distilleries Ltd. v. State of Karnataka [(1996) 10
SCC 304], this Court held: (SCC p. 314, para 13)“13. It is next submitted before us that the
amended Rules are arbitrary, unreasonable
and cause undue hardship and, therefore,
violate Article 14 of the Constitution.
Although the protection of Article 19(1)(g)
may not be available to the appellants, the
Rules must, undoubtedly, satisfy the test of
Article 14, which is a guarantee against
arbitrary action.However, one must bear in
mind that what is being challenged here under
Article 14 is not executive action but
delegated legislation. The tests of arbitrary
action which apply to executive actions do
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not necessarily apply to delegated legislation.
In order that delegated legislation can be
struck down, such legislation must be
manifestly arbitrary; a law which could not be
reasonably expected to emanate from an
authority delegated with the law-making
power. In Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India [(1985) 1
SCC 641 : 1985 SCC (Tax) 121], this Court
said that a piece of subordinate legislation
does not carry the same degree of immunity
which is enjoyed by a statute passed by a
competent legislature. A subordinate
legislation may be questioned under Article
14 on the ground that it is unreasonable;
‘unreasonable not in the sense of not being
reasonable, but in the sense that it is
manifestly arbitrary’. Drawing a comparison
between the law in England and in India, the
Court further observed that in England the
Judges would say, ‘Parliament never intended
the authority to make such Rules; they are
unreasonable and ultra vires’. In India,
arbitrariness is not a separate ground since it
will come within the embargo of Article 14 of
the Constitution. But subordinate legislation
must be so arbitrary that it could not be said
to be in conformity with the statute or that it
offends Article 14 of the Constitution.”
44. Also, in Sharma Transport v. State of A.P.
[(2002) 2 SCC 188], this Court held:
(SCC pp. 203-04, para 25) “25. … The tests of
arbitrary action applicable to executive action do not
necessarily apply to delegated legislation. In order to
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to be established that there is manifest arbitrariness.
In order to be described as arbitrary, it must be
shown that it was not reasonable and manifestly
arbitrary. The expression “arbitrarily” means: in an
unreasonable manner, as fixed or done capriciously
or at pleasure, without adequate determining
principle, not founded in the nature of things, non-
rational, not done or acting according to reason or
judgment, depending on the will alone.” (at pages
736-737)
101. It will be noticed that a Constitution Bench of this
Court in Indian Express Newspapers v. Union of India,
(1985) 1 SCC 641, stated that it was settled law that
subordinate legislation can be challenged on any of the
grounds available for challenge against plenary legislation.
This being the case, there is no rational distinction between
the two types of legislation when it comes to this ground of
challenge under Article 14.
The test of manifest arbitrariness, therefore, as laid down in
the aforesaid judgments would apply to invalidate
legislation as well as subordinate legislation under Article
14. Manifest arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally and/or
without adequate determining principle. Also, when
something is done which is excessive and disproportionate,
such legislation would be manifestly arbitrary. We are,
therefore, of the view that arbitrariness in the sense of
manifest arbitrariness as pointed out by us above would
apply to negate legislation as well under Article 14.
116. Resultantly, we answer question No.(iv) against the State and
in favour of the landowners and hold that action of the State is totally
malafide and manifestly arbitrary and the State has failed to pursue its
legal remedies and, therefore, the State had never followed the procedure
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as laid down in the policy dated 14.09.2018 and, therefore, could not de-
notify the lands already vested in it by law as explained above.
Harpreet Kaur Jeewan, J. (Concurring View):-
117. Having the advantage of perusing a draft copy of the
judgment prepared by my learned Brother, G.S. Sandhawalia, J., I am in
respectful agreement with the reasons and the conclusions on Questions of
Law at (i), (iii) and (iv) and I do not wish to give additional reasons to the
same. I am also in respectful agreement with the conclusions on Question
of Law No.II, however, I wish to add to the reasoning.
118. We are dealing with a question as to whether the Government
shall have the liberty to withdraw from compulsory acquisition of the land
made. The scheme of the 1894 Act provides a limited liberty to the Gov-
ernment to withdraw from the acquisition under Section 48 where the pos-
session has not been taken. Similarly, under the Central Act of 2013, Sec-
tion 101 has the provisions for return of un-utilized land which was under
compulsory acquisition. However, such an option could have been exer-
cised after a period of 5 years from the date of taking over the possession.
So, the scheme of both the Acts of 1894 and the Central Act of 2013 pro-
vides liberty to the State to withdraw from the acquisition. However, such
a liberty has to be exercised while respecting the scheme of constitutional
rights guaranteed to the citizens under Article 300A of the Constitution of
India.
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119. The factual matrix has already been noticed by my brother in
the three instances of acquisition. For the following reasons, the provisions
of Section 101A of the Central Act of 2013 is inherently prone to misuse:-
(a) no time limit in the form of any safeguard has been provided
within which the State Government can withdraw from acquisition after
initiation of the process of acquisition, after taking possession etc.
(b) it is violative of the principles of audi alteram partem and
provides a unilateral decision at the hands of the State.
(c) no criteria is provided under the Section for exercising jurisdic-
tion as the phrases “unviable” and “non-essential” have not been defined
in the Section.
120. The plain reading of the Section indicates that it can create
great hardship to displaced land owners and is totally unfair for the land
owners whose land has been put to compulsory acquisition on the principle
of eminent domain and even to their legal heirs. Usually, after the compul-
sory acquisition, the land owners try to settle down by spending the com-
pensation amount, which is also received in installments and that too, after
having waged a legal battle and without giving them any opportunity of
participation or seeking their options, putting such displaced land owners
and that too, some times their legal heirs to deal with the second round of
litigation by such de-notification of the land by a unilateral act of the State
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Government, is manifestly arbitrary. As such, in view of the totality of
above circumstances, keeping such provision on the Statute Book, does
not behove of the actions of a welfare State.
Conclusion
121. Keeping in view the above discussion, we come to the
conclusion that the assent given by the President under Article 254(2) was
as per the procedure prescribed by the Constitution and, therefore, Section
101A is not liable to be struck down on the said ground. However, in view
of the findings recorded on Ques. No.(ii), we are of the firm opinion that
Section 101A is liable to be struck down, suffering from the vice of
manifest arbitrariness. Similarly, the policy dated 14.09.2018, being a
manifestly arbitrary policy, has been found to be non-sustainable and,
therefore, under issue No.(iii), it is also struck down and it cannot sustain.
Lastly, irrespective of the findings recorded above on issue No.(iv), we are
of the considered opinion that the action of the State Government in
denotifying was dehorse the policy at the highest level in spite of the
same being in place and, therefore, even the action itself is liable to be
struck down.
122. Keeping in view the above findings, we dispose of the present
petitions. Records received in terms of orders dated 28.10.2024 and
12.11.2024 be returned to Mr. Ankur Mittal, Advocate and Mr. Dheeraj
Jain, Advocate, respectively.
123. Pending applications also stand disposed of accordingly.
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(G.S. SANDHAWALIA)
JUDGE
(HARPREET KAUR JEEWAN)
20.12.2024 JUDGE
naveen/shivani
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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