2017(4) ALL MR 12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

S. V. GANGAPURWALA AND K. L. WADANE, JJ.

Jairam Gangaram Burke & Ors. Vs. The State of Maharashtra & Anr.

Writ Petition No.1722 of 2017

2nd March, 2017.

Petitioner Counsel: Mr. S.K. SHINDE
Respondent Counsel: Smt. VAISHALI H. PATIL

(A) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (2013), Ss.24, 64, 114 - Reference to authority - Return of - On ground that award is passed under old Act - Title of award itself shows that award is u/S.24 of Act, 2013 - Further, award was passed after coming into force of Act, 2013 therefore, it will have to be passed under Act, 2013 - As after coming into force of Act, 2013 old Act of 1894 gets repealed - Reference against compensation is to be filed and entertained in accordance with Act, 2013. (Paras 8, 9)

(B) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (2013), S.24 - Land acquisition - Award of compensation - Whether passed under old Act or new Act - Determination - Award was passed after coming into force of new Act - S.24(2) provides that though acquisition proceedings were commenced under old Act but no award is passed till coming into force of new Act, award shall have to be passed under new Act - Award can be said to have passed under new Act. (Paras 5, 6, 9)

Cases Cited:
Aligarh Development Authority Vs. Megh Singh and others, 2016(5) ALL MR 444 (S.C.)=(2016) 12 SCC 504 [Para 7]


JUDGMENT

S. V. GANGAPURWALA, J.:- Rule. Rule made returnable forthwith. With the consent of the parties, this petition is taken up for final hearing.

2. In the present Writ Petition, the Award in favour of the petitioners is passed on 8th February, 2016 and 8th March, 2016 i.e. after coming into force the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (hereinafter referred as 'Act of 2013'). The petitioners filed a reference petition before the competent authority under Section 64 of the said Act, 2013. The same is returned back on the ground that the Award is passed under the old Act.

3. The Act of 2013 came into force on 1st January, 2014. Upon enforcement of the Act of 2013, the Land Acquisition Act, 1894 stood repealed. Section 114 (1) of the Act of 2013 specifically repeals the Land Acquisition Act, 1894. SubSection (2) of Section 114 of the Act of 2013 suggests that the repeal under Sub-Section (1) shall not be held to prejudice or affect general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeals. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceeding unaffected which commenced under the unrepealed provisions unless contrary intention is expressed.

4. Section 24 of the Act of 2013 takes various contingencies within its ambit. SubSection (1) of Section 24 of the Act of 2013 would be beneficial for arriving at a conclusion about passing of the Award. Section 24 (1) of the Act, 2013, reads as under :

"(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."

5. Section 24(1)(a)&(b) of the Act of 2013 deals with two eventualities, first; no award under section 11 of the Land Acquisition Act, 1894 has been made, then all provisions of the Act of 2013 relating to determination of compensation shall apply, and second; Award under section 11 has been made, then such proceeding shall continue under the provisions of the Land Acquisition Act, 1894 as if the said Act has not been repealed.

6. Reading Section 24(1)(a)&(b) of Act of 2013, it is abundantly clear that it is only in those cases where Award under Section 11 of the Land Acquisition Act, 1894 is passed then the proceedings would continue under the Act of 1894 as if the said Act has not been repealed. It thereby suggests that in case the Award has not been passed under Section 11 of the Act of 1894, then all provisions of the Act of 2013 relating to determination of compensation and passing of Award shall apply. The applicability of provisions of the Act of 1894 would continue to apply only if the Award under Section 11 of the Act of 1894 is passed and not otherwise. If prior to the repeal of Act of 1894, the Award is not passed, then the proceedings completed till the stage of repeal of the Act of 1894 are saved. However, further proceeding i.e. determination of compensation and passing of Award will have to be under the Act of 2013. The said interpretation would be in consonance and in tune with reading Sections 24 and 114 of the Act of 2013 harmoniously. The legislative intent under Clauses (a) and (b) of SubSection(1) of Section 24 of the Act of 2013 is abundantly clear. Any other interpretation would be doing violence to the provisions as engrafted under Sections 24 and 114 of the Act of 2013.

7. The Apex Court in the case of Aligarh Development Authority Versus Megh Singh and others, reported in (2016) 12 Suypreme Court Cases 504 : [2016(5) ALL MR 444 (S.C.)] has observed that as the Award has not been passed under 1894 Act, the land acquisition proceedings would continue but with rider that the Award will have to be passed and compensation determined under the provisions of the 2013 Act.

8. In the said case, before the Apex Court Notification under Section 4 (1) of the Land Acquisition Act, 1894 was issued on 09.08.2004. Emergency clause was also invoked under the provisions of Section 17 followed by Section 6 declaration dated 03.08.2005. The Court observed that the Award was not passed. The Land Acquisition proceedings would continue, but with the rider, the Award will have to be passed and compensation determined under the provisions of the Act of 2013.

9. In the instant case, the title of the Award itself says that the Award is under Section 24 of the Act of 2013. As observed supra, on passing of the Act of 2013, the Land Acquisition Act, 1894 stands repealed. If the proceeding for acquisition is commenced under the Act, 1894, the acquisition may not necessarily lapse, however, if Award is passed after the introduction of the Act of 2013, the Award will have to be passed under the new Act.

10. Once we conclude that after enforcement of Act, 2013, the Award has to be passed under Act, 2013 though proceedings may have commenced earlier, then the proceedings for enhancement of compensation will have to be taken up under Section 64 of the Act of 2013. It appears that the compensation is computed under the Act of 2013 while passing the Award. As the Award is passed after the introduction and enforcement of the Act of 2013, the Award necessarily has to be passed under Act of 2013. The reference for enhancement of compensation shall have to be filed and entertained in accordance with the provisions of Act of 2013.

11. The impunged order is accordingly quashed and set aside. In case there is no other impediment, the respondentauthority shall accept the reference filed by the petitioners under Section 64 of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013, and refer it to the Arbitrator as required under Act, 2013.

12. Rule made absolute in above terms. No costs.

Petition allowed.