# Smt. Kalawati Devi v. The State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-12
- **Case number:** Writ C No. 26413 of 2020
- **Bench:** Mahesh Chandra Tripathi, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalawati-devi-v-the-state-of-u-p-ors-47326
- **Pages:** 20

## Headnote

880 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Nipun Singh, Sri Sunil Kumar
Misra

A.
Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act (30
of 2013) - Section 24(2) - U.P. Avas Evam
Vikas Parishad Adhiniyam , Section 28 -
Section 32
- Acquisition proceedings
under Adhiniyam, 1965 - Applicability of
2013 Act - provisions of Section 24 (2) of
the Act, 2013 would not apply to the
acquisition made under the provisions of
Adhiniyam, 1965 - said issue no longer res
integra in view of the Division Bench
judgment of this Court in Atul Sharma &
ors.. v. State of U.P. & ors. & Jagbeer
Singh & ors.. v. State of U.P. & ors. (Para
30)
B. Land acquisition proceedings - Delayed
Challenge - Held - Generally Court not
interfere with the land acquisition when
the challenge is made with delay and
subsequent to taking of possession and
publication of award - at belated stage
court cannot permit to revive dead and
stale claims on the pretext of enactment
of Section 24 (Para 24, 30)
C. Constitution of India - Art.226 - Judicial
Review - limited Scope - scope of judicial
review is limited to the decision making
procedure & not against the decision of
the authority - Court may review to
correct errors. of law or fundamental
procedure requirements, which may lead
to
manifest
injustice
-
Court
has
competence to examine as to whether
there was material to form such opinion
as required by law or the finding recorded
by the authority concerned are perverse -
 Pervse finding - A finding is said to be
perverse when the same is not supported
by evidence brought on record or they are
against the law where they suffer from
vice of procedural irregularities - non
consideration of relevant material renders
an order perverse (Para 21)
Petition for directing the respondents to release
the land on the ground that neither the
possession of the land taken nor compensation
paid, as such, the acquisition proceeding lapsed
in view of S. 24 of the Act No.30 of 2013 - Held
- claim of the petitioner does not fall u/s 24 of
the Act, 2013.
- so far as determination of quantum of
compensation, principles will have to be applied
in relation to acquisition made by Parishad
under the Adhiniyam, 1965.
- reliefs claimed in the writ petition with regard
to lapse of acquisition not available to the
petitioner - open to the petitioner to move
appropriate application to get the compensation
(Para 30, 31, 32)
Disposed Off. (E-4)

## Text

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8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
879
same was given in the year 2009 and U.P.
Amendment came in the year 2015 and the
notification was issued by the Statement
Government on 24.5.2017, well before the
appeal was filed by petitioner before
respondent No.2.

17. Now coming to the second
argument raised by learned counsel that
petitioner has purchased the land in
question after declaration under Section
144 of Act, 1950 and thus was not entitled
for payment of stamp duty on the basis of
report that the land in question was a ''non
agricultural' land. Here it would be
necessary to refer to the action initiated on
complaint made to Lokayukt in respect of
evasion of stamp duty in District Mathura
from the year 2007-08 to 2013-14 wherein
it was found that in number of cases, after
getting declaration under Section 143 of the
Act, 1950, the land was being transferred
through sale, was again converted as an
agricultural land and declaration is sought
under Section 144 of Act, 1950. No
plausible explanation has been accorded by
the counsel as to what was the need in the
year 2009 to have the land converted back
as an agricultural land when once the
declaration under Section 143 had already
been made on 16.7.2005. From the perusal
of the order passed by Sub Divisional
Magistrate, Mathura dated 16.7.2005 it is
clear that on the application of the original
land holders, it was found that the land in
question was not being used for agricultural
purpose and on the basis of the report being
received from the office of Tehsildar after
inquiry that the declaration was made by
the concerned officer. The subsequent
order made under Section 144 of Act, 1950
does not record any ground for making
such declaration once it was found to be
land not being used for agricultural
purpose.

18. As the learned Additional
Advocate General has pointed out that this
is not a solitary case and on an inquiry by
the Lokayukt, it was found that between
2007 to 2014 there were number of cases
where such declaration was made under
Section 144 of Act, 1950 for the purpose of
escaping the stamp duty, I find that the
District
Revenue
Authorities
rightly
proceeded to hold deficiency of stamp duty
on the basis of the fact that once the
declaration was made in the year 2005
under Section 143 of Act, 1950, no
occasion arise for getting the land again
converted as an agricultural land just for
the purpose of sale deed and evading the
stamp duty.

19. Considering the facts and
circumstances of the case and perusing the
orders impugned, I find that no interference
is required in the orders passed by
respondents No.2 and 3.

20. Writ petition is hereby dismissed.
----------
(2021)08ILR A879
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Writ C No. 26413 of 2020

Smt. Kalawati Devi ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anupam Kulsreshtha, Sri Arpit Agarwal

Counsel for the Respondents:
880 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C., Sri Nipun Singh, Sri Sunil Kumar
Misra

A.
Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act (30
of 2013) - Section 24(2) - U.P. Avas Evam
Vikas Parishad Adhiniyam , Section 28 -
Section 32
- Acquisition proceedings
under Adhiniyam, 1965 - Applicability of
2013 Act - provisions of Section 24 (2) of
the Act, 2013 would not apply to the
acquisition made under the provisions of
Adhiniyam, 1965 - said issue no longer res
integra in view of the Division Bench
judgment of this Court in Atul Sharma &
ors.. v. State of U.P. & ors. & Jagbeer
Singh & ors.. v. State of U.P. & ors. (Para
30)
B. Land acquisition proceedings - Delayed
Challenge - Held - Generally Court not
interfere with the land acquisition when
the challenge is made with delay and
subsequent to taking of possession and
publication of award - at belated stage
court cannot permit to revive dead and
stale claims on the pretext of enactment
of Section 24 (Para 24, 30)
C. Constitution of India - Art.226 - Judicial
Review - limited Scope - scope of judicial
review is limited to the decision making
procedure & not against the decision of
the authority - Court may review to
correct errors. of law or fundamental
procedure requirements, which may lead
to
manifest
injustice
-
Court
has
competence to examine as to whether
there was material to form such opinion
as required by law or the finding recorded
by the authority concerned are perverse -
 Pervse finding - A finding is said to be
perverse when the same is not supported
by evidence brought on record or they are
against the law where they suffer from
vice of procedural irregularities - non
consideration of relevant material renders
an order perverse (Para 21)
Petition for directing the respondents to release
the land on the ground that neither the
possession of the land taken nor compensation
paid, as such, the acquisition proceeding lapsed
in view of S. 24 of the Act No.30 of 2013 - Held
- claim of the petitioner does not fall u/s 24 of
the Act, 2013.
- so far as determination of quantum of
compensation, principles will have to be applied
in relation to acquisition made by Parishad
under the Adhiniyam, 1965.
- reliefs claimed in the writ petition with regard
to lapse of acquisition not available to the
petitioner - open to the petitioner to move
appropriate application to get the compensation
(Para 30, 31, 32)
Disposed Off. (E-4)
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri Anupam Kulshreshtha
and Shri Arpit Agarwal, learned counsel for
the petitioner; Shri Sanjay Kumar Singh,
learned Addl. Chief Standing Counsel
along with Shri Devesh Vikram, learned
Standing Counsel as well as Shri Apurva
Hajela, learned Standing Counsel for the
State respondents and Shri Nipun Singh,
learned counsel for respondent nos.2 to 4.

2. Present writ petition has been
preferred for following reliefs:-

"a) To issue a writ, order or
direction in the nature of mandamus
directing the respondents to release the
land of plot no.424/1 area 1 bigha & 10
biswa and plot no.424/2 area 5 biswa,
situated in Village Jhunsi Kohna, Pargana
Jhunsi, Tehsil Phoolpur, Distt. Prayagraj
from the acquisition as the acquisition
proceedings, initiated vide notifications
dated 8.3.1979 and 27.10.1980 under
Sections 28 and 32 of the Uttar Pradesh
Avas Evam Vikas Praishad Adhiniyam,
1965 stand lapsed in view of the provisions
8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
881
of Section 24 of the Right to Fair
Compensation & Transparency in Land
Acquisition, Rehabilitation & Resettlement
Act, 2013 (Act No.30 of 2013);

b) To issue a writ, order or
direction in the nature of mandamus
directing the respondents to not to
dispossess the petitioner from the land in
dispute, namely; plot no.424/1 area 1 bigha
& 10 biswa and plot no.424/2 area 5
biswa, situated in Village Jhunsi Kohna,
Pargana Jhunsi, Tehsil Phoolpur Distt.
Prayagraj in view of the fact that neither
the compensation was paid nor possession
was taken pursuant to the proceedings of
acquisition, initiated vide notifications
dated
8.3.1979/14.4.1979
and
27.10.1980/22.11.1980 under Sections 28
and 32 of the Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 stand
lapsed;

c) To issue a writ, order or
direction in the nature of mandamus
directing the respondents to decide the
representation of the petitioner dated
3.9.2007 (Annexure No.8 to the writ
petition) and reminders dated 27.10.2007,
2.2.2008,
26.11.2008,
31.7.2013,
12.3.2013,
12.8.2013,
14.10.2013,
19.4.2017 and 4.7.2019 (Annexures No.9 to
16 of the writ petition) within a shortest
possible time frame which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case......"

3. The record in question reflects that
the petitioner claims to be Bhumidhar with
transferable rights of plot no.424/1 area 1
bigha & 10 biswa and plot no.424/2 area 5
biswa situated in Village Jhunsi Kohna,
Pargana Jhunsi, Tehsil Phoolpur Distt.
Prayagraj1. A notification under Section 28
of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 19652 was issued
on 8.3.1979, which was published in the
official
gazette
on
14.4.1979.
The
notification reflects that the Uttar Pradesh
Avas Evam Vikas Parishad3 has framed a
scheme in the name of "Jhunsi Bhoomi
Vikas
Evam
Grih
Sthan
Yojna-2,
Allahabad4" for solving the housing
problems in the city of Allahabad (now
Prayagraj). Thereafter, a notice under
Section 29 of the Adhiniyam, 1965 was
issued. It is claimed that the petitioner
along with her co-tenure holder Smt. Shanti
Devi daughter of Girdhari Lal filed
objection on 2.5.1979. A notification under
Section 32 of the Adhiniyam, 1965 was
published in the Official Gazette on
29.11.1980. It is claimed that inspite of the
objection
dated
2.5.1979
finally
the
publication under Section 32 of the
Adhiniyam, 1965 was issued. It is also
claimed that no opportunity or notice was
ever accorded to the petitioner under
Section 9 of the Land Acquisition, 18945.
Therefore,
the
petitioner
had
no
information relating to determination of the
compensation under the LA Act. It is also
reflected from the record that the petitioner
had earlier approached this Court by
preferring Writ Petition No.18480 of 1987
with following reliefs:-

"(i) To issue a suitable writ, order
or direction in the nature of certiorari
quashing the impugned notice (Annexure
'2' to the writ petition).

(ii) to issue a suitable writ, order
or direction in the nature of mandamus
restraining the respondents from raising
any constructions on plot no.424 without
demarcating
the
area
of
the
same,particularly on plot nos.424/1 and
424/2, Village Jhunsi, Kohna, Pargana
Jhunsi, Tehsil Phoolpur, District Allahabad
belonging
to
the
petitioner
besides
dispossessing the petitioner from the same
or from demolishing the houses and the
882 INDIAN LAW REPORTS ALLAHABAD SERIES
temples
of
the
petitioner
standing
thereon......."

4. In the said matter initially an
interim order was passed on 15.2.1992
restraining the respondents from carrying
out any demolition of the disputed
constructions till 17.2.1992 and also
restrained the petitioner to make any
construction over the disputed property.
Finally the writ petition was dismissed vide
order dated 8.8.2007, which reads as
under:-

"Herd Sri A.P. Tiwari and S.C.
Verma learned counsel for the petitioner
and Sri Vivek Saran, learned counsel for
the respondents.

By this petition, the petitioner has
prayed for quashing the notice contained in
Annexure-2 of the writ petition purporting
to be under Section 29 of U.P. Avas Vikas
Adhiniyam 1965 inviting objections against
the proposal of notification dated 8.3.1979
under Section 28 of the Act. Thereafter, a
declaration has been made under Section
32 of the Act on 29.11.1980 as stated in
para 11 of the counter affidavit filed on
behalf of the respondents. The petitioner
cannot
challenge
the
proposal
of
acquisition under Section 28 including the
notice inviting objection issued to her. No
further relief regarding declaration under
Section 32 of the At has been sought for.
However, since the only dispossession of
the petitioner has been stayed by this Court
on
12.10.1987
and
land
acquisition
proceedings were not stayed, therefore, the
land acquisition proceedings must have
been culminated/ formalised and award
must have been passed. In such facts and
circumstances of the case, once the award
has been made, it is not open for the
petitioner to challenge the notification
under Section 28 of the U.P. Avas Vikas
Adhiniyam 1965 and impugned notice
which is analogous provision to Section 4
of Land Acquisition Act which was only
proposal for said acquisition. In view of
these facts and circumstances of the case,
we are not inclined to interfere in the
matter.

Accordingly, the writ petition is
dismissed. However, dismissal of writ
petition will not preclude the petitioner to
approach the appropriate authority for
redressal of her grievances."

5. In the aforementioned proceeding
detailed counter affidavit was filed by the
respondents indicating in para 16 that
notice under Section 9 (1) and 9 (3) of the
LA Act was issued and inspite of sufficient
notice the petitioner did not submit any
claim/ compensation. It was also averred
that other tenure holders, those have filed
claims, the adequate compensation was
awarded by the Special Land Acquisition
Officer (SLAO).

6. Present writ petition has been
preferred precisely on the ground that
neither the possession of the land has been
taken nor compensation has been paid, as
such, the acquisition proceeding will lapse
in view of the provisions of Section 24 (2)
of the Right to Fair Compensation &
Transparency
in
Land
Acquisition,
Rehabilitation
&
Resettlement
Act,
20136.

7. Shri Anupam Kulshreshtha, learned
counsel for the petitioner has vehemently
contended that the provisions of Section 24
(2) of the Act, 2013 would apply to the
acquisition
undertaken
under
the
Adhiniyam, 1965 in view of the provisions
of Section 55 of the Adhiniyam, 1965. He
has submitted that as neither the possession
has been taken nor the compensation has
8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
883
been paid, therefore, the acquisition would
lapse. He has submitted that pursuant to
notification dated 8.3.1979, 14.4.1979 and
27.10.1980 the possession of land in
dispute has not been taken and infact the
petitioner is still in possession over the
disputed land. The perusal of the award
dated 22.9.1986 also does not reflect/
indicate that the award qua the petitioner's
land was ever prepared. The award dated
22.9.1986 was prepared in respect of land
admeasuring 44 bigha 3 biswa & 12
biswansi out of the total area of 56 bigha, 6
biswa & 12 biswansi. He has submitted that
the burden lies on the respondents to prove
that the award qua the land in dispute was
made by the Collector, Kanpur Nagar dated
22.9.1986 vide Case No.1.

8. He has further submitted that the
alleged possession dated 27.6.1986 is also
unsustainable in view of the principles settled
by
Hon'ble
Apex
Court
in
Banda
Development Authority, Banda v. Motilal
Agrawal & Ors7. The possession memo
must be signed by the owner of the land and
two independent witnesses if crop or
constructions are existing and merely going
on spot by the authority concerned would not
suffice for justifying the possession. The
respondents have not prepared any memo of
possession and merely showing that physical
possession was taken is not sufficient. He
lastly submitted that in view of the provisions
of Section 24 (2) of the Act, 2013 the
proceeding of acquisition initiated under
Section 28 of the Adhiniyam, 1965 by issuing
notifications dated 8.3.1979 and 27.10.1980
under Section 28 and 32 respectively would
stand lapsed.

9. Per contra, Shri Nipun Singh,
learned counsel for the Parishad and Shri
Sanjay Kumar Singh, learned Addl. Chief
Standing Counsel appearing for the State
respondents have, however, contended that
the provisions of Section 24 (2) of the Act,
2013 would not apply to the acquisition
made under the provisions of Adhiniyam,
1965. The said issue is no longer res integra
in view of the Division Bench judgment of
this Court in Atul Sharma & Ors. v. State
of U.P. & Ors8., and Jagbeer Singh &
Ors. v. State of U.P. & Ors9. Shri Nipun
Singh, learned counsel for the Parishad has
also placed reliance on the averments
contained in para 5 and 6 of the counter
affidavit filed on behalf of Parishad dated
30.01.2021, wherein, a categorical stand
has been taken that regarding land in
dispute
being
Khasra
No.424/1
the
respondents had taken physical possession
way back, and to this effect the possession
certificate had also been given by the
SLAO to the Parishad. The possession
certificate dated 27.6.1986 is also brought
on record as Annexure No.SCA-2. He has
submitted that the award of the entire
scheme has been made by the SLAO on
22.9.1986 and the adequate compensation
had also been deposited in the account of
the
SLAO
on
29.1.1982,
5.3.1984,
23.10.1984, 11.11.1985 and 23.9.1988. It
was
also
contended
that
inspite
of
information to the concerned land owners,
the reason best known to the petitioner, she
did not lift her compensation, therefore, at
this belated stage it cannot be claimed that
neither the possession has been taken nor
the award has been made. The entire
compensation
has
been
deposited,
therefore, present writ petition is liable to
be dismissed on the ground of delay and
laches. Lastly it has been contended that
challenge to the acquisition at this stage
cannot sustain in view of the order dated
8.8.2007 passed by the Division Bench of
this Court in earlier round of litigation and,
therefore, the writ petition is liable to be
dismissed with heavy cost.
884 INDIAN LAW REPORTS ALLAHABAD SERIES

10. We have heard rival submissions,
perused
the
record
and
respectfully
considered the judgments cited at Bar.

11. It is admitted by the parties that
the proceedings for acquisition of land
were initiated by notification under Section
28 of the Adhiniyam, 1965 on 8.3.1979.
This was followed by declaration made
under Section 32 of the Adhiniyam, 1965
on 27.10.1980. The award was made on
22.9.1986. The possession memo brought
on record indicates that the possession was
taken over on 27.6.1986. The entire claim
has been set up on the pretext that since
neither the possession has been taken nor
compensation has been paid, therefore, the
acquisition proceeding would lapse in view
of Section 24 (2) of the Act, 2013. In this
backdrop, it is necessary to first examine as
to whether the provisions of Section 24 (2)
of the Act, 2013 would apply to the
acquisition made under the Adhiniyam,
1965. The said issue is no longer res
integra. The authoritative pronouncement
in this regard has been made by the
Division Bench of this Court in Atul
Sharma & Ors. (Supra) and Jagbeer
Singh & Ors. (Supra). The operative
portion of the judgment in Atul Sharma &
Ors. (Supra) is quoted as under:-

".............The
aforesaid
observations
have
been
later
on
reproduced, considered and explained by
the Apex Court in at least three decisions
which deserve mention, the leading being
Ch. Tika Ramji and Ors etc. vs. The State
of Uttar Pradesh and Ors. (AIR 1956
Supreme Court 676), paragraphs 30 to 39.
The second decision is in the case of the
State of T.N. and Anr. vs. Adhiyaman
Educational & Research Institute and
Ors,(1995 (4) SCC 104) paragraphs 15 to
18 and the third decision is in the case of
Thirumuruga
Kirupananda
Variyarthavathiru Sundara Swamigalme
vs. Stae of Tamil Nadu and Ors. (1996 Vol.
3 SCC 15) paragraphs 19, 20, 23 to 26.
There are many more decisions to the same
effect and it is not necessary for us to
burden this judgment with anything further.

The basic principle that can be
culled out from a perusal of these
judgments is that the test of repugnancy is
whether the law made by Parliament and
that by the State Legislature occupy the
same field and whether the Parliament
intended to lay down a exhaustive code in
respect of the subject matter replacing the
act of the State Legislature.

The non-inclusion of the 1965
Act in the 4th Schedule to the 2013 Act in
terms of section 105 thereof does not
necessarily mean that the 2013 Act was
extended to be applied in acquisitions
under the 1965 Act. The intent of the 2013
Act was to eclipse the anomalies and
improve the conditions of payment of
compensation to acquisitions made under
the Land Acquisition Act, 1894 only.
Since the 1894 Act has been repealed, and
the 1965 Act continues to exist without
any amendment there does not arise any
issue of repugnancy or inconsistency. This
has to be viewed from another angle. The
benefit of deemed lapse is by a fiction
under a specific statute. A provision of
fiction has to be strictly construed and it
cannot
be
impliedly
treated
to
be
incorporated unless the 1965 Act also
contemplates any such fiction. It is for this
reason that an amendment will have to be
expressly brought about in the 1965 Act if
the provisions of 2013 Act have to be
applied and not otherwise in relation to the
procedure of acquisition. A provision of
deemed lapse cannot be read into by way of
interpretation into 1965 Act without
specific amendment therein.
8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
885

The other question is can this be
construed the other way around by
presuming an implied applicability of the
2013 Act merely because section 55 of the
1965 Act incorporates the procedure of
acquisition under the 1894 Act. We may put
on record that the issue of lapse of an
acquisition proceeding under section 11-A
of the 1894 Act was specifically held to be
not applicable in acquisitions under the
1965 Act in Jainul Islam's case. The same
situation exists here where the issue of
deemed lapse under section 24(2) is sought
to be introduced and read into the 1965
Act. We cannot accept this proposition
inasmuch as section 55 of the 1965 Act has
not been amended so as to include any
provision
relating
to
the
acquisition
resulting in any lapse as contained in the
2013 Act. Thus, such applicability cannot
be
implied
when
it
has
not
been
incorporated in the 1965 Act.

There is yet another reason
namely the provisions of 2013 Act as
contained
in
section
24(2)
are
not
inconsistent with any provision of the State
Act that exists from before. Conversely the
State Act also does not include any
provision that may said to be inconsistent
or in conflict with 2013 Act. The noninclusion of the benefit of the clause of
deemed lapse does not make the enactment
inconsistent, conflicting or repugnant.

To understand this recourse can
be had to the provisions quoted herein
above in the 2013 Act that clearly
provide that the 2013 Act and its
provisions are in addition and not in
derogation of any law for the time being
in force. Consequently the States have
been left to enact any law that may
provide for any better facilities relating
to acquisition over and above that has
been provided for in the 2013 Act. This,
therefore, also removes the elements of
discrimination or arbitrariness. It is open
to the State to provide better facility or
benefit in matters of acquisition by
bringing about any amendment in the
1965 Act.

Coming to the last limb of this
argument
namely
the
resultant
discrimination in relation to acquisitions
having been made prior to 01.01.2014,
we may point out that when there is a
legislation by incorporation then it is
only that part of legislation which stands
incorporated and continues to exist and
not a new legislation which refers to the
proceedings under the old legislation.
The reason is what can be incorporated
is that which exists. It is for this reason
that
section
55
of
the
1965
Act
incorporated the then existing provisions
of 1894 Act. The 1894 Act has now been
repealed and is not in existence. Thus, it
is only the provisions of 1894 Act that
have been incorporated in section 55 of
the 1965 Act that will continue to exist
for that purpose only to that limited
extent. The same does not within its fold
draw the elements of the 2013 Act which
has
never
been
intended
to
be
incorporated or included in the 1965 Act
or vice-versa. Thus, these are two sets of
acquisitions under the different Acts and
the question of applying Article 14 to
invoke discrimination does not arise.

However, there is another shade
of this discrimination which has to be
avoided keeping in view the ratio of the
Jainul Islam's case. To that extent we hold
that if any acquisition is made by the
authority under the 1965 Act after
01.01.2014
then
it's
actions
or
the
assessment of compensation cannot be less
than what has been contemplated in 2013
Act. The determination of the quantum of
compensation, therefore, on principles will
have
to be applied
in
relation
to
886 INDIAN LAW REPORTS ALLAHABAD SERIES
acquisitions made by the Awas Vikas
Parishad under the 1965 Act after
01.01.2014 as per the 2013 Act.

Consequently for all the reasons
aforesaid the relief claimed in the writ
petition with regard to the lapse of the
proceedings cannot be availed of and the
petition is accordingly dismissed."

12. For ready reference, the operative
portion of the judgment in Jagbeer Singh
& Ors., (Supra) is quoted as under:-

".........The
Fourth
Schedule
contained in the 2013 Act makes reference
to 13 Acts but does not make reference to
the Parishad Act.

This issue was also considered by
a Division Bench of this Court in Atul
Sharma. It was sought to be contended that
Section 24(2) of the 2013 Act would apply
to acquisitions made under the Parishad
Act. This contention was repelled by the
Division Bench holding that the absence of
exclusion of the applicability of the 2013
Act would not necessarily mean that the
2013 Act would apply to the acquisitions
made under the Parishad Act. The
observations of the Division Bench are as
follows:

"The non-inclusion of the 1965
Act in the 4th Schedule to the 2013 Act in
terms of section 105 thereof does not
necessarily mean that the 2013 Act was
extended to be applied in acquisitions
under the 1965 Act. The intent of the 2013
Act was to eclipse the anomalies and
improve the conditions of payment of
compensation to acquisitions made under
the Land Acquisition Act, 1894 only. Since
the 1894 Act has been repealed, and the
1965 Act continues to exist without any
amendment there does not arise any issue
of repugnancy or inconsistency. This has to
be viewed from another angle. The benefit
of deemed lapse is by a fiction under a
specific statute. A provision of fiction has
to be strictly construed and it cannot be
impliedly treated to be incorporated unless
the 1965 Act also contemplates any such
fiction. It is for this reason that an
amendment will have to be expressly
brought about in the 1965 Act if the
provisions of 2013 Act have to be applied
and not otherwise in relation to the
procedure of acquisition. A provision of
deemed lapse cannot be read into by way of
interpretation into 1965 Act without
specific amendment therein. (emphasis
supplied)

In this connection, the Division
Bench also observed that since Section 11A of the Acquisition Act was held not to be
applicable to acquisitions made under the
Parishad Act, the same position would exist
in regard to Section 24(2) of the 2013 Act
and the observations are:

"The other question is can this be
construed the other way around by
presuming an implied applicability of the
2013 Act merely because section 55 of the
1965 Act incorporates the procedure of
acquisition under the 1894 Act. We may put
on record that the issue of lapse of an
acquisition proceeding under section 11-A
of the 1894 Act was specifically held to be
not applicable in acquisitions under the
1965 Act in Jainul Islam's case. The same
situation exists here where the issue of
deemed lapse under section 24(2) is sought
to be introduced and read into the 1965
Act. We cannot accept this proposition
inasmuch as section 55 of the 1965 Act has
not been amended so as to include any
provision
relating
to
the
acquisition
resulting in any lapse as contained in the
2013 Act. Thus, such applicability cannot
be
implied
when
it
has
not
been
incorporated in the 1965 Act." (emphasis
supplied)
8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
887

The decisions referred to by the
learned counsel for the petitioners relating
to lapsing of acquisition under Section
24(2) of the 2013 Act when land was
acquired under the provisions of the
Acquisition Act would, therefore, not come
to the aid of the petitioners.

Thus, for all the reasons stated
above, it is not possible to accept the
contention of the learned counsel for the
petitioners that Section 24(2) of the 2013
Act would be applicable to the acquisitions
made under the Parishad Act.

In the end, learned counsel for
the petitioners submitted that though the
award was made way back on 30
December 2013, compensation has not
been paid to the petitioners who are the
subsequent purchaser of the land that was
acquired. It is for the petitioners to file an
application
before
the
Special
Land
Acquisition Officer for payment of the
compensation and the Court has no reason
to doubt that in case such an application is
filed, it shall be decided in accordance with
law after hearing the parties concerned.

The writ petition is, accordingly,
dismissed with the aforesaid observations."

13. Hon'ble the Division Bench while
considering the case of Atul Sharma &
Ors. (Supra) has observed that the noninclusion of the Adhiniyam, 1965 in the 4th
Schedule to the Act, 2013 in terms of
section 105 thereof does not necessarily
mean that the Act, 2013 was extended to be
applied
in
acquisitions
under
the
Adhiniyam, 1965. The intent of the 2013
Act was to eclipse the anomalies and
improve the conditions of payment of
compensation to acquisitions made under
the L.A. Act only. It was also observed that
since the L.A. Act has been repealed, and
the Adhiniyam, 1965 continues to exist
without any amendment there does not
arise
any
issue
of
repugnancy
or
inconsistency. The benefit of deemed lapse
is by a fiction under a specific statute. A
provision of fiction has to be strictly
construed and it cannot be impliedly treated
to be incorporated unless the Adhiniyam,
1965 also contemplates any such fiction. It
is for this reason that an amendment will
have to be expressly brought about in the
Adhiniyam, 1965 if the provisions of Act,
2013 have to be applied and not otherwise
in relation to the procedure of acquisition.
It was opined "a provision of deemed lapse
cannot
be
read
into
by
way
of
interpretation into 1965 Act without
specific amendment therein."

14. The decisions referred to by
learned counsel for the petitioner relating to
lapsing of acquisition under Section 24 (2)
of the Act, 2013 when the land was
acquired under the provisions of the L.A.
Act would, therefore, not come to the aid of
the petitioner. In view of above, it is not
possible to accept the contention of learned
counsel for the petitioner that Section 24
(2) of the Act, 2013 would be applicable to
the
acquisitions
made
under
the
Adhiniyam, 1965.

15. A Constitution Bench of Hon'ble
Apex Court in Indore Development
Authority v. Manoharlal & Ors10., has
considered the correct interpretation of
Section 24 of the Act, 2013 and finally
answered as under:-

"359. We are of the considered
opinion thatSection 24cannot be used to
revive dead and stale claims and concluded
cases. They cannot be inquired into within
the purview ofSection 24of the Act of 2013.
The
provisions
ofSection
24do
not
invalidate the judgments and orders of the
Court, where rights and claims have been
888 INDIAN LAW REPORTS ALLAHABAD SERIES
lost and negatived. There is no revival of
the barred claims by operation of law.
Thus, stale and dead claims cannot be
permitted to be canvassed on the pretext of
enactment of Section 24. In exceptional
cases, when in fact, the payment has not
been made, but possession has been taken,
the remedy lies elsewhere if the case is not
covered by the proviso. It is the Court to
consider it independently not undersection
24(2)of the Act of 2013.

360. It was submitted thatSection
101provides for return of unutilized land
under the Act of 2013.Section 101provides
that in case land is not utilized for 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.Section 101reads as under:

"101. Return of unutilized land.--
When any land, acquired under this Act
remains unutilized for a period of five years
from the date of taking over the possession,
the same shall be returnedto 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, unutilized acquired lands and
tax-delinquent properties into productive
use."

361.Section 24deals with lapse of
acquisition.Section
101deals
with
the
return of unutilized land.Section 101cannot
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 ofSection
101though 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 ofSection 24(2). The provisions
ofSection 101cannot be applied to the
acquisitions made under the Act of 1894.
Thus, no such sustenance can be drawn
from the provisions contained inSection
101of 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 underSection
24(2).

362. Resultantly, the decision
rendered in Pune Municipal Corporation &
Anr. (supra) is hereby overruled and all
other decisions in which Pune Municipal
Corporation (supra) has been followed, are
also overruled. The decision in Shree
Balaji
Nagar
Residential
Association
(supra) cannot besaid to be laying down
good law, is overruled and other decisions
following the same are also overruled.In
Indore
Development
Authority
v.
Shailendra (Dead) through L.Rs. and Ors.,
(supra), the aspect with respect to the
proviso toSection 24(2)and whether ''or'
has to be read as ''nor' or as ''and' was not
placed for consideration. Therefore, that
decision too cannot prevail, in the light of
the discussion in the present judgment.

363. In view of the aforesaid
discussion, we answer the questions as
under:

1. Under the provisions ofSection
24(1)(a)in case the award is not made as
on 1.1.2014 the date of commencement of
8 All. Smt. Kalawati Devi Vs. The State of U.P. & Ors.
889
Act of 2013, there is no lapse of
proceedings. Compensation has to be
determined under the provisions of Act of
2013.

2. In case the award has been
passed within the window period of five
years excluding the period covered by an
interim order of the court, then proceedings
shall continue as provided underSection
24(1)(b)of the Act of 2013 under the Act of
1894 as if it has not been repealed.

3. The word ''or' used inSection
24(2)between possession and compensation
has to be read as ''nor' or as ''and'. The
deemed
lapse
of
land
acquisition
proceedings underSection 24(2)of the Act
of 2013 takes place where due to inaction
of authorities for five years or more prior
to commencement of the said Act, the
possession of land has notbeen taken nor
compensation has been paid. In other
words, in case possession has been taken,
compensation has not been paid then there
is no lapse. Similarly, if compensation has
been paid, possession has not been taken
then there is no lapse.

4. The expression 'paid' in the
main part ofSection 24(2)of the Act of 2013
does not include a deposit of compensation
in court. The consequence of non-deposit is
provided in proviso toSection 24(2)in case
it has not been deposited with respect to
majority
of
land
holdings
then
all
beneficiaries (landowners) as on the date
of
notification
for
land
acquisition
underSection 4of the Act of 1894 shall be
entitled to compensation in accordance
with the provisions of the Act of 2013. In
case the obligation underSection 31of the
Land Acquisition Act of 1894 has not been
fulfilled, interest underSection 34of the said
Act can be granted. Non-deposit of
compensation (in court) does not result in
the lapse of land acquisition proceedings.
In case of non-deposit with respect to the
majority of holdings for five years or more,
compensation under the Act of 2013 has to
be paid to the "landowners" as on the date
of
notification
for
land
acquisition
underSection 4of the Act of 1894.

5. In case a person has been
tendered the compensation as provided
underSection 31(1)of the Act of 1894, it is
not open to him to claim that acquisition
has lapsed underSection 24(2)due to nonpayment ornon-deposit of compensation in
court. The obligation to pay is complete by
tendering the amount underSection 31(1).
Land owners who had refused to accept
compensation or who sought reference for
higher compensation, cannot claim that the
acquisition
proceedings
had
lapsed
underSection 24(2)of the Act of 2013.

6. The proviso toSection 24(2)of
the Act of 2013 is to be treated as part
ofSection 24(2)not part ofSection 24(1)(b).

7. The mode of taking possession
under the Act of 1894 and as contemplated
underSection 24(2)is by drawing of inquest
report/ memorandum. Once award has
been
passed
on
taking
possession
underSection 16of the Act of 1894, the land
vests in State there is no divesting provided
underSection 24(2)of the Act of 2013, as
once possession has been taken there is no
lapse underSection 24(2).

8.
The
provisions
ofSection
24(2)providing for a deemed lapse of
proceedings
are
applicable
in
case
authorities have failed due to their inaction
to take possession and pay compensation
for five years or more before the Act of
2013 came into force, in a proceeding for
land acquisition pending with concerned
authority as on 1.1.2014. The period of
subsistence of interim orders passed by
court has to be excluded in the computation
of five years.

9.Section 24(2)of the Act of 2013
does not give rise to new cause of action to
890 INDIAN LAW REPORTS ALLAHABAD SERIES
question
the
legality
of
concluded
proceedings
of
landacquisition.Section
24applies to a proceeding pending on the
date of enforcement of the Act of 2013, i.e.,
1.1.2014. It does not revive stale and timebarred claims and does not reopen
concluded
proceedings
nor
allow
landowners to question the legality of mode
of taking possession to reopen proceedings
or mode of deposit of compensation in the
treasury instead of court to invalidate
acquisition.

Let the matters be placed before
appropriate Bench for consideration on
merits."

16. In the present matter admittedly
notice under Section 29 of the Adhiniyam,
1965 was challenged in Writ Petition
No.18480 of 1987 in which no doubt initially
the respondents were restrained to carry out
demolition. But eventually the writ petition
was dismissed with observation that the
acquisition proceedings were not stayed by
the Court, therefore, the land acquisition
proceeding must have been culminated/
formalised and the award must have been
passed. In the circumstances, once the award
has been made, it was not open for the
petitioner to challenge the notification under
Section 28 of the Adhiniyam, 1965 and the
impugned
notice
which
is
analogous
provisions to Section 4 of the LA Act, which
was only proposal for said acquisition. In
such circumstances, so far as challenge to the
acquisition and lapsing of the proceeding
under the Adhiniyam, 1965 would be
impermissible at this belated stage.