# M/s Bir Hotels Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 868
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-04
- **Case number:** Writ C No. 23248 of 2024
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-bir-hotels-pvt-ltd-v-state-of-u-p-ors-52526
- **Pages:** 12

## Headnote

A. Civil Law - Constitution of India,1950Article 226-U.P. Avas Evam Vikas Parishad
Adhiniyam,1965 -Sections 28 & 32-Right
to Fair Compensation and Transparency in
Land
Acquisition,
Rehabilitation
and
Resettlement
Act,2013-Sections
24(2)-
applicability of section 24(2) of the 2013
Act
to
acquisitions
under
the
Adhiniyam,1965-quashing of notifications
issued u/s 28,32 of the Act,1965, alleging
delays
in
concluding
acquisition
proceedings-The
court
held
that
the
acquisition
proceedings
under
the
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
869
Adhiniyam 1965 do not lapse due to
delays in issuing the award as section
24(2) of the New Act 2013 does not apply
to acquisitions under the adhiniyam-the
provisions for determining compensation
under the New Act,2013, including higher
rates of compensation, solatium and
interest apply to acquisitions under the
Adhiniyam to avoid arbitrariness and
discrimination-the compensation for the
land acquisition will be determined as per
new
act,2013
with
01.01.2014(the
commencement date of the New Act) as
the reference date-Thus, the petition was
dismissed on grounds that the acquisition
was valid and did not lapse-the petitioner
retains the right to claim compensation as
per the provisions of the New ACt,2013-
(Para 1 to 21)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,327 of 40,657. This is a partial read: ask again with offset=39327 for what follows._

868 INDIAN LAW REPORTS ALLAHABAD SERIES
17. On an examination of the
factual matrix with regard to the first limb
of the argument raised by Sri Shashi
Nandan that the lead member of the
consortium was required to have 51% of
the 1000 cubic meters, we find that though
doubt has been raised by the petitioner, the
same has been countered by counsel
appearing on behalf of the respondents.
Documents have been produced that
indicated that Dhoramnath Traders, the
lead member of the consortium was having
total 1,131.97 cubic meters of Sal wood
logs and Sal wood edgings. These kinds of
factual disputes cannot lead to interference
by a writ Court as is clearly enunciated by
the judgements cited above.

18. With regard to the second limb
of argument that inspection was mandatory as
per clauses 6(g) and 6(h) of the e-bid
document, we are of the view that the
document has to be read as a whole and the
said clauses have to be read together. Upon a
conjoint reading of said two clauses, we are
of the view that there was discretion with the
Sal Purchase Committee to carry out
inspection which they chose not to do for any
of the applicants. The fact that they did not
carry out inspection for any of the applicants
removes any claim that may be made by the
petitioner with regard to any arbitrary or mala
fide action on behalf of the respondents.

19. In light of the above factual
matrix and after examining the judgments
cited above, it is clear that the writ Court is not
required to find fault of the authorities with a
magnifying glass rather the Court should
examine the decision making process and also
leave room for interpretation of the contract by
the authorities.

20. In the present case, the
petitioner has failed to establish that the
action of the authorities was contrary to
public interest and within the realm of
discrimination and unreasonableness, and
accordingly, the writ petition cannot be
entertained. As this Court has found that
the action of the authorities is not arbitrary,
discriminatory, mala fide or actuated with
any bias, the Court does not wish to
intervene in the matter.

21. Accordingly, the writ petitions
are dismissed. There shall be no order as to
costs.
----------
(2024) 9 ILRA 868
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 23248 of 2024

M/s Bir Hotels Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Aishwarya Pratap Singh

Counsel for the Respondents:
C.S.C., Harshit Pandey, Nipun Singh

A. Civil Law - Constitution of India,1950Article 226-U.P. Avas Evam Vikas Parishad
Adhiniyam,1965 -Sections 28 & 32-Right
to Fair Compensation and Transparency in
Land
Acquisition,
Rehabilitation
and
Resettlement
Act,2013-Sections
24(2)-
applicability of section 24(2) of the 2013
Act
to
acquisitions
under
the
Adhiniyam,1965-quashing of notifications
issued u/s 28,32 of the Act,1965, alleging
delays
in
concluding
acquisition
proceedings-The
court
held
that
the
acquisition
proceedings
under
the
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
869
Adhiniyam 1965 do not lapse due to
delays in issuing the award as section
24(2) of the New Act 2013 does not apply
to acquisitions under the adhiniyam-the
provisions for determining compensation
under the New Act,2013, including higher
rates of compensation, solatium and
interest apply to acquisitions under the
Adhiniyam to avoid arbitrariness and
discrimination-the compensation for the
land acquisition will be determined as per
new
act,2013
with
01.01.2014(the
commencement date of the New Act) as
the reference date-Thus, the petition was
dismissed on grounds that the acquisition
was valid and did not lapse-the petitioner
retains the right to claim compensation as
per the provisions of the New ACt,2013-
(Para 1 to 21)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. U.P. Avas Evam Vikas Parishad Vs Jaimul
Islam & anr..(1998) 2 SCC 467

2. Hem Chandra Vs St. of U.P. & ors. (2024) 7
ADJ 254 DB

3. Gauri Shankar Gaur Vs. St. of U.P.(1994) 1
SCC 92

4. Secy.of St. Vs Hindustan Co-op.Insu. Socy
Ltd.(1931) AIR PC 149

5. Nagpur Improvement Trust Vs. Vasantrao &
ors. (1962) AIR SC 955

6. Satya Pal & ors. .Vs. St. of U.P. & ors. (1997)
AIR SC 2235

7. UP Avas Evam Vikas Parishad,Lko Vs. Pushpa
Lata Awasthi (1995) 3 SCC 573

8. Ramesh Chandra Tiwari & ors. .Vs. UP Avas
Evam Vikas Parishad, Lko.& ors. (1997) 9 SCC
116 (Civil appeal no. 1832 of 1986)

9. UP Avas Evam Vikas Parishad, Lko Vs.
Chandra shekhar & ors. .(2024) 3 SCR 585 (Civil
appeal no. 3855 of 2024 arising out of SLP(C)
no. 779 of 2016)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Manish Kumar Nigam, J.)

1. Heard learned counsel for the
petitioner, Shri Harshit Pandey, learned
counsel for respondent Nos. 2 & 5 and Shri
Naman Agarwal, Advocate holding brief of
Shri Nipun Singh, learned counsel for
respondent Nos. 3 & 4.

2. The instant petition has been filed
praying for quashing of the notifications
dated 12.06.2004 and 24.06.2010 issued
under
Section
28
and
Section
32
respectively of the U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965 on the ground
that the acquisition has lapsed being barred
on account of delay in concluding the
acquisition proceedings. The petitioner has
also prayed for a writ of mandamus
restraining the respondents from interfering
in their possession and for a further
direction to approve the building plan
submitted by the petitioner for raising
constructions over the said land and to
decide the representation dated 25.05.2024
made in this behalf.

3. It is submitted by learned counsel
for the petitioner that the award having not
been declared so far, the acquisition
proceedings should be declared to have
lapsed by virtue of Section 24(2) of the
Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
(for short 'the New Act, 2013').

4. Per contra, learned counsel for the
respondent-U.P.
Avas
Evam
Vikas
870 INDIAN LAW REPORTS ALLAHABAD SERIES
Parishad submits that in the U.P. Avas
Evam Vikas Parishad Adhiniyam, 1965
(for short, 'the Adhiniyam') under which
acquisition in question has been made,
there is no provision for automatic lapsing
on ground of delay in making award. He
places reliance on the judgment of the
Supreme Court in U.P. Avas Evam Vikas
Parishad v. Jainul Islam and another in
contending that amendment to the Land
Acquisition Act, 1894 (for short 'LA Act')
by the Land Acquisition (Amendment) Act,
1984,
by
which
Section
11-A
was
introduced, was held to be inapplicable to
acquisitions made under the Adhiniyam.
Therefore, Section 11-A of LA Act would
not apply and on the same analogy, Section
24(2) of the New Act, 2013 would also not
apply. He also places reliance on a judgment
of this Court in Hem Chandra v. State of
U.P. and others wherein it was held that the
acquisitions under the Adhiniyam would not
lapse but the award shall have to be made by
treating the reference date for determining the
compensation as 01.01.2014, the date of
enforcement of the New Act, 2013 and not
the date of notification under Section 28 of
the Adhiniyam.

5. The main issue which arises for
consideration is whether the acquisition in
question initiated under the Adhiniyam
would lapse on account of award having not
been declared so far.

6. Section 55 of the Adhiniyam makes
applicable certain provisions of the LA Act,
1894, as amended in its application to the
State of Uttar Pradesh, subject to the
modifications specified in the Schedule to the
Adhiniyam. For ready reference, Section 55
of the Adhiniyam is extracted below:

"55. Power to acquire land.-(1)
Any land or any interest therein required
by the Board for any of the purposes of this
Act, may be acquired under the provisions
of the Land Acquisition Act, 1894 (Act No.
1 of 1894), as amended in its application to
Uttar Pradesh, which for this purpose shall
be subject to the modification specified in
the Schedule to this Act.

(2) If any land in respect of which
betterment fee has been levied under this
Act is subsequently required for any of the
purposes of this Act, such levy shall not be
deemed to prevent the acquisition of the
land under the Land Acquisition Act, 1894
(Act No. 1 of 1894)."

7. By Act No. 68 of 1984, drastic
amendments were made in the LA Act. The
Statement of Objects and Reasons -
emphasizes the need to balance individual
interest
with
larger
interest
of
the
community. Two main features of the
Amending Act, 1984 was to provide (i)
timelines in initiating and concluding
various stages of the proceedings so as to
avoid delay of long periods which 'renders
unrealistic the scale of compensation
offered to the affected persons' and (ii) to
provide adequate measures to compensate
for the delay. To meet these concerns, main
proposals for amendments, inter alia, are as
follows:

"(iii) A time-limit of one year is
proposed to be provided for completion of
all formalities between the issue of the
preliminary notification under Section 4(1)
of the Act and the declaration for
acquisition of specified land under Section
6(1) of the Act.

(v) It is proposed to provide for a
period of two years from the date of
publication of the declaration under
Section 6 of the Act within which the
Collector should make his award under the
Act. If no award is made within that period,
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
871
the entire proceedings for the acquisition of
the land would lapse. He has also been
empowered
to
correct
clerical
or
arithmetical mistakes in the award within a
certain period from the date of the award.

(viii) Solatium now payable at the
rate of fifteen per centum of the market
value of the land acquired in consideration
of the compulsory nature of the acquisition,
is proposed to be increased to thirty per
centum. Similarly, the rate of interest
payable on the excess compensation
awarded by the Court and on the
compensation in cases where possession of
land
is
taken
before
payment
of
compensation, are also proposed to be
increased substantially.

(ix) Considering that the right of
reference to the civil court under Section
18 of the Act is not usually taken advantage
of by inarticulate and poor people and is
usually exercised only by the comparatively
affluent landowners and that this causes
considerable inequality in the payment of
compensation for the same or similar
quality of land to different interested
parties, it is proposed to provide an
opportunity to all aggrieved parties whose
land is covered under the same notification
to seek re-determination of compensation,
once any one of them has obtained orders
for payment of higher compensation from
the reference court under Section 18 of the
Act.

(x) As a large number of cases for
the acquisition of land are pending before
various authorities for a very long time and
payment of the market value of the land
obtaining on the date of the preliminary
notification under Section 4 of the Act in
respect of such land is likely to be
unrealistic and iniquitous, it is proposed to
provide for payment of simple interest at
ten per centum per annum on the amount of
compensation for the period commencing
from the date of issue of the notification
under Section 4 of the Act to the date of
tender
of
payment
or
deposit
of
compensation awarded by the Collector in
respect of all pending proceedings on the
30th April, 1982, the date when the earlier
Bill for the amendment of the Act was
introduced in the House of the People."

(emphasis supplied)

8. After amendments in LA Act,
question arose before the Supreme Court in
Gauri Shankar Gaur v. State of U.P.
whether the provisions of LA Act as
amended by Amending Act, 1984 stood
incorporated in the Adhiniyam by virtue of
Section 55 read with the Schedule. There
was difference of opinion in the Two
Judges Bench and the matter was referred
to Larger Bench of Three Judges. The issue
came to be decided by Three Judges Bench
in U.P. Avas Evam Vikas Parishad v.
Jainul Islam and Another (supra). In
paragraph 13 of the judgment, the point of
cleavage in opinion was noted as follows:

"13. Ramaswamy, J. was of the
view that Section 55 of the Adhiniyam read
with the Schedule made an express
incorporation of the provisions of Section
4(1) and Section 6 as modified and
incorporated in the Schedule and that the
Schedule effected necessary structural
amendments to Sections 4, 5, 17 and 23
incorporating therein the procedure and
principles with necessary modifications
and that it is a complete code in itself. He,
therefore, held that Section 55 and the
Schedule adopted only by incorporation
Sections 4(1) and 6(1) and the subsequent
amendments to Section 6 did not become
part of the Adhiniyam and they have no
effect on the operation of the provisions of
the Adhiniyam. Sahai,J. however, took a
contrary view. He was of the opinion that
872 INDIAN LAW REPORTS ALLAHABAD SERIES
whether a legislation was by way of
incorporation or by way of reference is
more a matter of construction by the courts
keeping in view the language employed by
the enactment, the purpose of referring or
incorporating provisions of an existing Act
and the effect of it on the day-to-day
working. According to the learned Judge
such legislation by incorporating is subject
to exceptions and that one such situation
where legislation by incorporation is
excluded is if it creates difficulty in day-today working. The learned Judge was of the
view that in our constitutional set-up the
exception can be extended further and the
courts should lean against a construction
which may result in discrimination. He,
therefore,
held
that
the
amendments
introduced in the LA Act by the 1984 Act
would be applicable to acquisition of land
for the purpose of the Adhiniyam and
restriction of three years added by the first
proviso to Section 6 of the LA Act was
applicable to acquisition for the purposes
of the Adhiniyam also. The learned Judge,
however, took note of the fact that the
Parishad had entered into possession
and had constructed housing colonies as
there was no interim order in favour of
the landowners during pendency of the
writ petitions in the High Court and
observed that larger social interest
requires this Court to mould the relief in
such a manner that justice may not
suffer. He, therefore, held that even
though publication of declarations under
the Act were beyond the period of three
years it was not in the interest of justice
to quash the proceedings but the
landowners
should
be
paid
compensation of the land acquired on
market value prevalent in the year in
which the declaration analogous to
Section 6 of the earlier Act was
published/issued by fictionally assuming
that fresh notification under the Act
analogous to Section 4 was issued in
that year."

9. The Supreme Court in paragraph
No. 17 of the Law Report discussed the
principles for determining whether a
legislation is by incorporation or by
reference. In case of legislation by
incorporation, rule of construction is that
repeal of the earlier statute which is
incorporated
does
not
affect
the
operation of the subsequent statute in
which it has been incorporated. So also
any amendment in the statute which are
made after incorporation would not
affect the operation of the borrowing
statute. On the other hand, if it is
legislation by reference the subsequent
amendments in the legislation from
which the provision is borrowed would
also apply to the subsequent legislation.

10. In paragraph No. 18 of the Law
Report, the Supreme Court considered the
interplay between the LA Act and the
Adhiniyam, and observed as follows:

"Section 55 of the Adhiniyam
makes a reference to the provisions of the
L.A. Act, as amended in its application to
Uttar Pradesh, and has laid down that any
land or any interest therein required by the
Parishad for any of the purposes of the
Adhiniyam may be acquired under the
provisions of the L.A. Act as a amended in
its application to Uttar Pradesh which for
this purpose has to be subject to the
modifications specified in the Schedule to
the Adhiniyam. A number of modifications
have been made in the various provisions
of the L.A. Act that have been made
applicable in respect of acquisition for the
purposes of the Adhiniyam. The publication
of the notification under Section 28(1) of
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
873
the Adhiniyam has been equated with a
notice under sub-section (1) of Section 4 of
the L.A. Act and the publication of a
notification under Section 32(1) of the
Adhiniyam has been equated with a
declaration under Section 6 of the L.A. Act.
As regards compensation modification has
been made by inserting sub-section (2) in
Section 23 of the L.A. Act, as it was
applicable in the State of Uttar Pradesh. As
pointed out earlier, in the L.A. Act, in its
application to the State of Uttar Pradesh,
in so far as it related to acquisitions of land
except for the purposes of the Union, subsection (2) was inserted in Section 23 of the
L.A. Act in its application to acquisition for
the purposes of the Adhiniyam."

11. The Supreme Court relied on Privy
Council Judgement in Secretary of State
v. Hindustan Co-operative Insurance
Society Ltd., and held that the effect of
Section 59 of the Adhiniyam was to
incorporate
by
reference
into
the
Adhiniyam, the provisions of the Land
Acquisition Act, as amended in its
application to U.P. with the modification
specified in the Schedule to the Adhiniyam.
In other words, it would have the effect of
actually writing the borrowed provisions,
as existing at the relevant time, subject to
modifications specified in the schedule, in
the
Adhiniyam
and
therefore,
any
subsequent amendment in the Act would
not affect the provisions incorporated by
reference into the Adhiniyam. We may
usefully extract para-21 of the Law Report:

"The provisions of Section 55
read with the Schedule to the Adhiniyam
are on the same lines as those contained in
the Calcutta Improvement Act, 1911 and
the principles laid down in Secretory of
State
v.
Hindustan
Co-operative
Insurance Society Ltd. (supra) are equally
applicable to the present case. The
amendments introduced in the L.A. Act by
the 1984 Act were not part of the L.A. Act,
as applicable in the State of Uttar Pradesh,
at the time of passing of the Adhiniyam.
The provisions of the L.A. Act, as amended
in its application to U.P., with the
modifications specified in the Schedule to
the Adhiniyam, have, therefore, to be
treated to have been incorporated by
reference into the Adhiniyam and became
an integral part of the Adhiniyam and the
said provisions would remain unaffected by
any subsequent repeal or amendment in the
L.A. Act unless any of the exceptional
situations indicated in State of Madhya
Pradesh v. M.V. Narasimhan can be
attracted."

12. The Supreme Court, thereafter,
considered the issue as to whether the
amendments made in the Land Acquisition
Act, 1894 contemplating award of much
higher compensation would apply to the
acquisition made under the Adhiniyam in
the context of the submission on behalf of
the land owners that if not made applicable,
it would result in the arbitrariness and
discrimination and violation of Article 14
of the Constitution.

13. While answering the said issue, the
Supreme Court held that in case the
amended
provisions
relating
to
determination of compensation are not
made applicable to the acquisitions made
under the Adhiniyam, it would result in
discrimination. Accordingly, relying on the
earlier judgment in Nagpur Improvement
Trust vs Vasantrao And Others, the
Supreme Court observed as follows:

"Article 14 confers an individual
right and in order to justify a classification
there should be something which justifies a
874 INDIAN LAW REPORTS ALLAHABAD SERIES
different treatment to this individual right.
It
seems
to
us
that
ordinarily
a
classification based on the public purpose
is not permissible under Article 14 for the
purpose of determining compensation. The
position is different when the owner of the
land himself is the recipient of benefits
from an improvement scheme, and the
benefit to him is taken into consideration in
fixing compensation. Can classification be
made on the basis of the authority
acquiring the land" In other words can
different principles of compensation be laid
if the land is acquired for or by an
Improvement
Trust
or
Municipal
Corporation or the Government? It seems
to us that the answer is in the negative
because as far as the owner is concerned it
does not matter to him whether the land is
acquired by one authority or the other.
* * *

It is equally immaterial whether it
is
one
Acquisition
Act
or
another
Acquisition Act under which the land is
acquired. If the existence of two Acts
enables the State to give one owner
different treatment from another equally
situated the owner who is discriminated
against, can claim the protection of Article
14."

14.
The
Supreme
Court
after
considering the rival contentions held that
the provisions of the Amending Act in so
far as it relates to determination of
compensation, if not applied to acquisitions
made
under
the
Adhiniyam,
"the
consequence would be that the provisions
of the LA Act, as applicable under the
Adhiniyam, would suffer from the vice of
arbitrary and hostile discrimination". Such
a consequence could be avoided if the
provisions of the Adhiniyam are construed
to mean that the provisions of the LA Act,
as amended by the 1984, Act, relating to
determination
of
compensation
would
apply to acquisitions of land for the
purposes of the Adhiniyam. The relevant
discussion is in paragraphs no.31 and 32
and the same is extracted below:-

"31. Since the present case
involves acquisition of land under the
provisions of the L.A. Act as applicable
under the Adhiniyam, it is fully covered by
the law laid down by this Court in Nagpur
Improvement Trust Vs. Vithal Rao: (1973)
1 SCC 500. Keeping in view the principles
laid down in the said decision of this Court,
it has to be held that if the provisions of the
Adhiniyam are so construed as to mean
that the provisions of the L.A. Act, as they
stood on the date of enactment of the
Adhiniyam,
would
be
applicable
to
acquisition or land for the purpose of the
Adhiniyam and that the amendments
introduced in the L.A. Act by the 1984 Act
relating to determination and payment of
compensation are not applicable, the
consequence would be that the provisions
of the L.A. Act, as applicable under the
Adhiniyam, would suffer from the vice of
arbitrary and hostile discrimination. Such
a consequence would be avoided if the
provisions of the Adhiniyam are construed
to mean that the provisions of the L.A. Act,
as amended by the 1984 Act, relating to
determination
and
payment
of
compensation would apply to acquisition of
land for the purposes of the Adhiniyam.
There is nothing in the Adhiniyam which
precludes adopting the latter construction.
On the other hand, the provisions of the
Adhiniyam show that the intention of the
Legislature, while enacting the Adhiniyam,
was to confer the benefit of solatium @
15% by modifying Section 23(2) in the
Schedule, which benefit was not available
under the provisions of the L.A. Act as it
was applicable in the State of Uttar
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
875
Pradesh at the time of enactment of the
Adhiniyam. It cannot, therefore, be said
that the intention of the Legislature, in
enacting the Adhiniyam, was to deny to the
landowners
the
benefits
relating
to
determination
and
payment
of
compensation which would be available to
them under any amendment made in the
L.A. Act after the enactment of the
Adhiniyam. We are, therefore, of the
opinion that on a proper construction of
Section 55 of the Adhiniyam it must be held
that while incorporating the provisions of
the L.A. Act in the Adhiniyam the intention
of the legislature was that amendments in
the L.A. Act relating to determination and
payment
of
compensation
would
be
applicable to acquisition of lands for the
purposes of the Adhiniyam. This means that
the amendments introduced in the L.A. Act
by the 1984 Act relating to determination
and payment of compensation, viz, Section
23(1-A) and Section 23(2) and 28 as
amended by the 1984 Act would be
applicable to acquisitions for the purpose
of the Adhiniyam under Section 55 of the
Adhiniyam.

32. In view of the construction
placed by us on the provisions of Section
55 of the Adhiniyam that the provisions of
the L.A. Act, as amended by the 1984 Act
relating to determination and payment of
compensation, would be applicable to
acquisition of land for the purposes of the
Adhiniyam, it is not necessary to deal with
the submission that if the provisions of the
1984 Act are held to be not applicable in
the matter of acquisition of land for the
purposes of the Adhiniyam the provisions
of the L.A. Act, as applicable under the
Adhiniyam, would be void on the ground of
repugnance under Article 254 of the
Constitution."

 (emphasis supplied)

15. Thus, it was authoritatively held
by the Supreme Court that the subsequent
amendments made in the LA Act would not
apply to the acquisitions made under the
Adhiniyam, but in order to save the
acquisitions made under the Adhiniyam
from
the
vice
of
arbitrariness
and
discrimination, the provisions relating to
determination
and
payment
of
compensation were made applicable. As a
corollary,
Section
11-A
which
was
introduced in the LA Act by the amending
Act, would not apply to the acquisitions
made under the Adhiniyam. Even if award
is not made within two years of the
issuance of notification under Section 32 of
the Adhiniyam (equivalent to Section 6 of
the LA Act), the acquisition would not
lapse. At the same time, the beneficial
provisions relating to determination and
payment of compensation introduced by
amendment by the Act of 1984, would
apply.

16. The aforesaid legal position was in
fact clarified by Supreme Court even
earlier in Satya Pal and Others v State of
U.P. and Others, relying on two previous
judgments in U.P. Avas Evam Vikas
Parishad, Lucknow v Pushpa Lata
Awasthi and judgment dated 8.1.1996 in
Civil Appeal No. 1832 of 1986 (Ramesh
Chandra Tiwari and Others vs. U.P.
Avas Evam Vikas Parishad, Lucknow
and others). The relevant discussion in this
regard is as follows: -

"4. The acquisition is under the
U.P.
Avas
Evam
Vikas
Parishad
Adhiniyam, 1965 (for short, 'Adhiniyam').
The controversy is whether the Land
Acquisition (Amendment) Act 68 of 1984
would apply to the acquisition made under
the Adhiniyam. In Gaurishankar Gaur v.
State of U.P. (1994) (1) SCC 92: (1993 AIR
876 INDIAN LAW REPORTS ALLAHABAD SERIES
SCW 3029), a Bench of two-Judges of this
Court, to which one of us, K. Ramaswamy,
J., was a member, had considered the
question. K. Ramaswamy, J. had held that
this
Adhiniyam
and
the
procedure
prescribed therein vis-a-vis the Land
Acquisition Act, 1894 (1 of 1894) by
incorporation
and,
therefore,
the
Amendment Act does not apply to the
acquisition under the Adhiniyam. Hon'ble
R.M. Sahai, J. had taken a different view on
that matter. However, on merit both agreed
for shifting of the date for payment of the
compensation
to
the
later
date
of
declaration as under (Para 52 of AIR) :-

"Though for different reasons, we
have come to the same conclusions that the
civil appeals and writ petitions shall stand
dismissed.
But
the
appellants
and
petitioners shall be paid compensation on
the market rate prevalent in the year the
declarations analogous to Section 6 of the
Land Acquisition Act, 1894 were issued. In
view of the special facts and peculiar
circumstances and not as of law, we have
adapted this course.

5. Subsequently, the question was
considered by another Bench of this Court
in, U.P. Avas Evam Vikas Parishad,
Lucknow v. Pushpa Lata Awasthi, (1995) 3
SCC 573, wherein it was held that the
Amendment Act has no application since
some of the provisions of the Land
Acquisition Act, 1894 (1 of (1894) were
incorporated into the Adhiniyam. The same
view was reiterated in Ramesh Chandra
Tiwari v. U.P. Avas Evam Vikas Parishad,
Lucknow (C. A. No. 1832/86) decided on
January 8, 1996 (reported in 1996 AIR
SCW 2312) by another Bench. Under these
circumstances, it is now settled law that the
Land Acquisition Amendment Act 68 of
1984 has no application to the acquisition
under the Adhiniyam. As a result, Section
11-A of the Land Acquisition Act, as
amended by Act 68 of 1984, has no
application.
The
notification
under
Adhiniyam similar to Section 4(1) and the
declaration similar to Section 6 do not
stand lapsed after the expiry of two years
from the date the Amendment Act has come
into force. The High Court, therefore, was
right in refusing to grant the relief."

 (emphasis supplied)

17. Here, it is worthwhile to note some
of the relevant provisions of the New Act,
2013. Section 24 of the Act contemplates
lapsing of certain acquisition proceedings
and also determination of compensation as
per provisions of the New Act, 2013 in
cases where no award had been made under
Section 11 of the LA Act. For ready
reference, Section 24 is extracted below:-

"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.

(2)
Notwithstanding
anything
contained in sub-section (1), in case of land
acquisition proceedings initiated under the
Land Acquisition Act, 1894 (1 of 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
physical possession of the land has not
9 All. M/s Bir Hotels Pvt. Ltd. Vs. State of U.P. & Ors.
877
been taken or 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."

18. Here we may also note Section
105 of the New Act, 2013 which stipulates
that the New Act, 2013 would not apply in
certain cases or would apply with certain
modifications :-

"Provisions of this Act not to
apply in certain cases or to apply with
certain modifications.- (1) Subject to subsection (3), the provisions of this Act shall
not apply to the enactments relating to land
acquisition
specified
in
the
Fourth
Schedule.

(2) Subject to sub-section (2) of
section 106, the Central Government may,
by notification, omit or add to any of the
enactments
specified
in
the
Fourth
Schedule.

(3) The Central Government
shall, by notification, within one year from
the date of commencement of this Act,
direct that any of the provisions of this Act
relating
to
the
determination
of
compensation in accordance with the First
Schedule
and
rehabilitation
and
resettlement specified in the Second and
Third Schedules, being beneficial to the
affected families, shall apply to the cases of
land acquisition under the enactments
specified in the Fourth Schedule or shall
apply with such exceptions or modifications
that do not reduce the compensation or
dilute the provisions of this Act relating to
compensation
or
rehabilitation
and
resettlement as may be specified in the
notification, as the case may be.

(4) A copy of every notification
proposed to be issued under sub-section
(3), shall be laid in draft before each House
of Parliament, while it is in session, for a
total period of thirty days which may be
comprised in one session or in two or more
successive sessions, and if, before the
expiry of the session immediately following
the session or the successive sessions
aforesaid,
both
Houses
agree
in
disapproving the issue of the notification or
both
Houses
agree
in
making
any
modification
in
the
notification,
the
notification shall not be issued or, as the
case may be, shall be issued only in such
modified form as may be agreed upon by
both the Houses of Parliament."

19. The Adhiniyam is not a specified
legislation under the Fourth Schedule and
therefore, the provisions of the New Act,
2013 ipso facto, do not apply to the
acquisitions made under the Adhiniyam.
Consequently, Section 24(2) would also not
get attracted. However, keeping in view the
legislative mandate contained in the New
Act, 2013 particularly provisions of Section
24(1)(a), Section 6 of the General Clauses
Act,
1892
and
Article
14
of
the
Constitution of India, a Division Bench in
Hem Chandra, consisting of one of us
namely, Manoj Kumar Gupta, J. and Kshitij
Shailendra, J. extended the beneficial
provisions relating to determination and
payment of compensation to the Adhiniyam
and held that the relevant date in reference
878 INDIAN LAW REPORTS ALLAHABAD SERIES
to which compensation in such cases would
be determined, would be 01.01.2014, the
date of commencement of the Act and not
the date of notification under Section 28 of
the Adhiniyam or Section 4 of the LA Act.
The said case was also concerning an
acquisition made under the provisions of
the Adhiniyam and while arriving at the
said conclusion, the judgment of Supreme
Court in U.P. Avas Evam Vikas Parishad
v. Jainul Islam and another and U.P.
Avas Evam Vikas Parishad v. Chandra
Shekhar
and
others
(Civil
Appeal
No.3855 of 2024 arising out of SLP (C)
No.779 of 2016, decided on 05.03.2024)
were relied upon. The relevant discussion
from the said judgment is extracted below:

"24. This controversy has now
been settled by the Supreme Court in
Chandra Shekhar (supra). The said case
also arose out of the acquisition made
under the Adhiniyam. The notification
under Section 28 was issued on 17.07.2004.
It also appears that the subsequent action
of the Parishad was subjected to challenge
and it was held that the same was not valid
as proper opportunity, as contemplated
under Section 5-A of the Land Acquisition
Act 1894, was not given. The Supreme
Court upheld the judgment of the High
Court quashing the subsequent action of
Parishad
on
the
ground
of
non
compliance
of
the
procedure.
The
Supreme Court, however, held that since
substantial development had already
taken place, therefore, it would not be
proper to quash the acquisition but the
land holder should be substantially
compensated. It specifically considered
the impact of Section 55 of Adhiniyam
and held that the New Act shall be
deemed to be read in place of Old Act,
1894 on the ground that the acquisition
had
not
attained
finality
before
01.01.2014. The relevant observations in
this regard are as follows:-

"18. Having held so, the question
that falls for further consideration is as to
what should be the future course of action
for the appellant-Board, so that neither the
public interest to utilize the subject-land for
the Scheme that has been substantially
developed is frustrated nor the true tenure
holders are deprived of the adequate
compensation for their land. It may be seen
from Section 55 of the 1965 Act that the
compensation for the acquired land was
required to be assessed in accordance with
the provisions of the Land Acquisition Act
1894,
which
stood
repealed
w.e.f.
01.01.2014
by
the
Right
to
Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013
(hereinafter
referred to as "the 2013 Act"). Section 55
of the 1965 Act cannot be given effect
unless it is declared by way of a deeming
fiction that instead of 1894 Act which now
stands repealed, the compensation shall be
assessed in accordance with the provisions
of the 2013 Act. We hold accordingly. Since
the acquisition could not attain finality
before
01.01.2014,
we
are
of
the
considered opinion that the Acquiring
Authority/Board are obligated to pay
compensation to the ex-propriated owners,
as is to be assessed in accordance with
Section 24(1) of the 2013 Act.

19. Consequently, we hold that
the
tenure-holders/owners
of
Khasra
No.673,
which
was
still
under
the
acquisition process when 2013 Act came
into force, shall be entitled to be paid
compensation in accordance with Section
24(1) of the 2013 Act."

27. In Jainul Islam (supra), the
Larger Bench of Supreme Court has held
that the beneficial provisions of the
Amending
Act,
1984
relating
to
9 All. M/s Khandelwal Brothers Vs. Joint Chief Controller of Explosives (Madhyanchal), Agra,
 PESO & Ors.
879
determination
of
compensation
would
apply to the acquisitions made under the
Adhiniyam to save it from arbitrariness and
discrimination. As the Act, 1894, as
amended from time to time, stands replaced
by the New Act, 2013, we are of the
considered
opinion
that
the affected
persons would be entitled to compensation
as per the New Act, 2013, again to save
Section 55 of the Adhiniyam from being
rendered
unconstitutional
on
the
touchstone
of
Article
14
of
the
Constitution."

20. In view of the legal position noted
above, we are of the opinion that while
Section 24(2) of the New Act, 2013 would
not apply and the acquisition would not lapse
but the petitioner would be entitled to
compensation as per the provisions of the
New Act, 2013 and the date of reference for
determining the compensation would be
01.01.2014 on which the New Act, 2013 was
enforced. Thus, the challenge advanced to the
notifications
fail
and
accordingly,
consequential relief for a direction to sanction
the building plan also cannot be granted.

21. The petition lacks merit and is
dismissed. This is without prejudice to
claim compensation as per discussion made
in the foregoing paragraphs.

22. No order as to costs.
----------
(2024) 9 ILRA 879
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 23612 of 2024
M/s Khandelwal Brothers ...Petitioner
Versus
Joint
Chief
Controller
of
Explosives
(Madhyanchal), Agra, PESO & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Rama Goel Bansal, Ms. Shalini Goel

Counsel for the Respondents:
C.S.C. Sri Gaurav Kumar Chand, Sri Namit
Srivastava, Sri Radha Krishan, Sri Rakesh
Kumar

A.