Acquisitions Made Under UP Avas Vikas Act But Not Finalized Till January 1, 2014 Are Governed By Land Acquisition Act 2013: Allahabad HC

The Allahabad High Court has held that acquisitions made under U.P. Avas Evam Vikash Parish Adhiniyam, 1965 prior to commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which have not been finalized till 01.01.2014 shall be governed by the Act of 2013 for the purposes of determination of compensation to the landowners.

Section 55 of the U.P. Avas Evam Vikash Parish Adhiniyam, 1965 empowers the Board, thereunder, to acquire any land for any purpose under the Adhiniyam as per the provisions of the Land Acquisition Act, 1894.

Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 provides that if an award for acquisition of land under the erstwhile Act has not been made, the provisions of the Act of 2013 shall apply for determination of compensation.

The bench comprising of Justice Manoj Kumar Gupta and Justice Kshitij Shailendra relied on the decision of the Supreme Court in U.P. Avas Ewam Vikas Parishad v. Jainul Islam and Another to hold

“In Jainul Islam (supra), the Larger Bench of Supreme Court has held that the beneficial provisions of the Amending Act, 1984 relating to 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.”

Factual Background

Petitioner was the bhumidhar with transferable rights of the land in question. in 1979, a notification under Section 28 of U.P. Avas Evam Vikash Parish Adhiniyam, 1965, followed by notification under Section 32 of the Adhiniyam dated 07.07.1982 for acquiring petitioner's land.

Parishad took possession of the land in 2002, but the award was passed in February 2024 basing the compensation on the market value as on the date of notification issued in 1979 treating it to be at par with notification under Section 4 of the Land Acquisition Act, 1894.

Counsel for petitioner argued that since no award was passed till the coming in force of the Land Acquisition Act 2013, the compensation ought to be determined applying the provisions of the Act of 2013.

Per contra, counsel for Parishad argued that by virtue of Section 55 of the Adhiniyam, the provisions of Land Acquisition Act, 1894 applies and the provisions of the Act of 2013 have not been incorporated in the U.P. Avas Evam Vikash Parish Adhiniyam, 1965.

High Court Verdict

The Court observed that in 1984, amendments were carried out in the Land Acquisition Act, 1894 providing timelines to counter the unusual delays in the acquisition process which led to unrealistic compensation being offered to the landowners. Measures for compensating inordinate delays were also added, observed the Court.

The Court referred to U.P. Avas Ewam Vikas Parishad v. Jainul Islam and Another, wherein a three-judge bench of the Supreme Court held that for the purpose of the determining compensation for acquisition under the Adhiniyam, the amendment to the provisions of the Land Acquisition Act 1894 made in 1984 will apply.

The Apex Court opined 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.”

Further, in Union of India and others v. Tarsem Singh and others, the Supreme Court held that acquisitions made under the National Highways Act and other statutes, including the Land Acquisition Act, cannot be treated differently. It was held that landowners cannot be differentiated if the State is making acquisitions under different statutes.

The High Court examined Section 114 of the Act of 2013 which repeals the Act of 1894 and Section 6 of the General Clauses Act, 1897 which provides that repeal of a statue shall not “affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.” It held that conjoint reading of Section 114 and Section 6, as mentioned above, saves the acquisition as well as the right of the petitioner to receive compensation for the land acquired by the Parishad.

Observing that the rate of compensation is much higher in the Act 2013 as compared to the Act of 1894, the Court held that the mandate under Section 24(1)(a) of providing compensation as per the new law where award has not been made is to protect the interest of the persons involved.

The Court relied on its earlier decision in Pyare Lal and 24 others v. Union of India and 4 others, where it was held that the relevant date for determination of compensation for any acquisition made under the Act of 1894 where award had not been passed till the commencement of the Act of 2013, would be 1^st January 2014.

The Court observed that the award had been delayed by the Parishad for almost 42 years. The question raised by the Court was “should the Parishad continue to delay the awards taking benefit of the non-applicability of the timelines and at the same time, also not pay compensation according to the New Act?”

The Court relied to U.P. Avas Evam Vikas Parishad v. Chandra Shekhar and others where the Supreme Court held that since the compensation was not paid to the landowners therein, the acquisition made under the Adhiniyam was not complete before 1.1.2014. Therefore, the Apex Court directed the determination of compensation as per the provisions of the Act of 2013 by applying Section 24(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Court held that since the award was made on 27.02.2024, the compensation ought to have been determined as per the Act of 2013 and not under the old Act of 1894.

Accordingly, the writ petition was allowed, and the case was remitted back to the authority for redetermination of compensation.

Case Title: Hem Chandra v. State Of U.P. And 3 Others [WRIT - C No. - 12796 of 2024]

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