Gujarat High Court
Kantibhai Nathubhai vs State Of Gujarat on 8 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/15470/2016 JUDGMENT DATED: 08/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15470 of 2016
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 15470 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
==========================================================
Approved for Reporting Yes No
==========================================================
KANTIBHAI NATHUBHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR. R.S.SANJANWALA, SR.ADVOCATE WITH MR. AADIT R
SANJANWALA(9918) for the Petitioner(s) No.
1,2,2.1,2.2,2.3,2.4,2.5,3,4,5,6,7,8
MS. HETAL PATEL, AGP for the Respondent(s) No. 1,2
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 08/04/2026
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. Heard Mr.R.S.Sanjanwala, learned Senior Advocate
assisted by Mr. Aadit R.Sanjanwala, learned Counsel for the
petitioners and Ms.Hetal Patel, learned Assistant Government
Pleader appearing for the State-respondents.
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2. By means of the present petition, the petitioners herein
claim of being owner of the land bearing Block No.19 of
Mouje Asarma, Taluka Choryasi, Dist.Surat admeasuring
14,063 Sq.mtrs. It is stated in the writ petition that Block Nos.
1/P, 9/P, 10 to 20 and 64 of Village Asarma were reserved for
Sewage Treatment Plant of the Surat Municipal Corporation.
The notification for acquisition of the land in question under
Section 4 of the Land Acquisition Act, 1894 (for short “the
Act, 1894) was published on 28.11.2004, wherein Block Nos.
13, 14, 16, 17, 18 and 19 of Village Asarma were notified
expressing intention to acquire the same. Section 6
Notification dated 19.04.2006 was published thereafter and
the notice under Section 9(3)(iv) of the Act, 1894 was issued
on 05.05.2006. There is no dispute about the fact that after
making due inquiry, the Collector/Special Land Acquisition
Officer passed an award dated 21.04.2008 under Section 11 of
the Act, 1894.
3. In paragraph No.’10’ of the writ petition, there is a
mention of three notices dated 13.03.2008, 24.11.2008 and
notice dated Nil No. 2 of 2015.
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4. A perusal of the notice dated 24.11.2008 at Page No.
’38’ of the paper book (the type copy whereof is appended at
Page No. ’39A’ of the paper-book) indicates that there is a
reference of the notice dated 21.04.2008 issued under Section
12(2) of the Act, 1894 to the petitioners, they were required to
hand over possession of the land in question on or before
15.05.2008. The notice dated 24.11.2008 was a reminder to
the notice dated 21.04.2008 wherein it was directed that the
petitioners shall remove their possession from the acquired
land by 09.12.2008 or else the proceedings for eviction would
be undertaken on 10.12.2008, at the time fixed therein.
5. At this stage, we may note Section 12 of the Land
Acquisition Act, 1894, which reads as under :-
“12. Award of Collector when to be final
(1)Such award shall be filed in the Collectors office and shall,
except as hereinafter provided, be final and conclusive
evidence, as between the Collector and the persons
interested, whether they have respectively appeared before
the Collector or not, of the true area and value of the land,
and the apportionment of the compensation among the
persons interested.
(2)The Collector shall give immediate notice of his award to
such of the persons interested as are not present personally
or by their representatives when the award is made.
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6. Section 12 provides that the award made by the
Collector shall be final and conclusive evidence as between
the Collector and the persons interested, whether they have
respectively appeared before the Collector or not, as to the
true area and value of the land and the apportionment of the
compensation among the persons interested. Section 12(1),
thus, attaches finality to the land acquisition award passed by
the Collector under Section 11 of the Act, 1894. Sub section
(2) of Section 12 further requires the Collector to give
immediate notice of his award to such of the persons
interested who are not present personally or by their
representatives, at the time when the award was made.
7. The acquisition proceedings under Act, 1894 attains
finality with the making of the award under Section 11 of the
Act, 1894 and after the award was passed, by taking
possession of the land. Upon taking possession of the acquired
land by the Collector, such land shall vest absolutely with the
appropriate Government, free from all encumbrances in view
of Section 16 of the Act, 1894. The mode of taking possession
under the Land Acquisition Act,1894 is normally by way of
paper possession or drawing of panchnama and the said mode
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has been recognized as an approved mode of taking
possession by the Hon’ble Apex Court in the case of Indore
Development Authority Vs. Manoharlal and others
reported in (2020) 8 SCC 129.
8. We may also note that prior to making of the award,
after the acquisition notification under Section 6 was
published for acquisition of the land in question, the
petitioners along with other land holders filed writ petitions
challenging the acquisition proceedings on the ground of
invocation of Section 17(4) of the Act, 1894, whereby the
inquiry under Section 5(A) of the Act, 1894 was dispensed
with. The said challenge, however, has been upturned by this
Court with the dismissal of the writ petition of the petitioners
including others vide common judgment and order dated
27.02.2008. The observations in paragraph No.’23’ of the
judgment and order dated 27.02.2008 are relevant to be noted
hereinunder :-
“23. It is also required to be noted and so stated in the
Affidavit-in-reply filed by the Corporation that the respondent
No.4 SUDA initially initiated proceedings to develop the land
in question for the purpose sewage disposal work, however,
notification under sec.4 dtd.20/6/2006 for the land in
question issued by the State Government which was earlier
coming under the jurisdiction of SUDA has been merged withPage 5 of 33
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the Surat Municipal Corporation. It is further submitted in
the reply filed by the Corporation that the lands in question is
very much require for the public purpose after expansion of
the area of Corporation. That the SUDA also got a sanctioned
plan under JNURM Scheme which is nowrequired to be
implemented by the SUDA due to the merger of the area
which was earlier under the administrative control of SUDA.
It is further submitted by the Surat Municipal Corporation in
the reply that the Surat Municipal Corporation has already
prepared project report for the said project and also issued
tender for execution of the project and the Corporation has
also issued and allotted work order thereon in favour of the
respective parties on 23/8/2007. Thus, that the work for
sewage treatment plan is already commenced. Considering
the aforesaid facts and circumstances of the case and the
purpose for which the land in question is needed i.e. for
sewage treatment plant in the City of Surat, all the petitions
fail and they deserve to be dismissed and are accordingly
dismissed. Rule is discharged in each of the petitions. In the
facts and circumstances of the case, there shall be no order
as to costs.”
9. We may also note that when the acquisition proceedings
were conducted under the Act, 1894 invoking Section 17(4) of
the Act, 1894, it was permissible for the Collector to take
possession of any land needed for the public purpose on the
expiration of 15 days of the publication of the notice
mentioned in sub Section (1) of Section 9, though no award of
compensation has been made.
10. Upon taking of the possession in view of sub Section (1)
of Section 17, such land shall vest absolutely in the
appropriate Government free from all encumbrances.
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11. The only caveat under sub Section (3-A) of Section 17 of
the Act, 1894 was that before taking possession of any land
under sub-section (1), the Collector shall tender payment of
eighty percent of the compensation for such lands as
estimated by him to the persons interested/entitled thereto
and that the payment shall be made to them, unless prevented
by some, one or more of the contingencies mentioned in sub-
section(2) of Section 31.
12. There is no dispute about the fact that 80% of the
estimated compensation for the land in question had been
deposited on 29.02.2008 and even the remaining 20% of the
compensation was deposited in the Government Treasury on
16.04.2008.
13. As noted hereinabove, the notice dated 13.03.2008 was
issued to the petitioners, a copy whereof is appended at Page
No. ’36’ of the paper-book. A perusal of the said notice also
indicates that the petitioners/Land holders were called upon
to receive compensation amount deposited with the
Government Treasury. There is a complete silence in the writ
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petition as to whether the petitioners had responded to the
said notice or approached the competent authority to receive
the compensation. There is also a silence about the paper
possession of the land in question having been taken by the
competent authority or drawing of the panchnama. The
judgment and order dated 27.02.2008 of the dismissal of the
writ petition filed by the petitioners challenging the
acquisition proceedings records that the land in question is
required for public purpose after expansion of the area of the
Corporation. The Surat Municipal Corporation in its reply has
submitted that the project report had already been prepared;
the tender had been issued and the work had been allotted to
the respective parties on 23.08.2007. The work for sewage
treatment plan had already been commenced.
14. However, there is a further statement in the affidavit
filed on behalf of the Surat Municipal Corporation that the
physical possession of the land in question was handed over to
the Surat Municipal Corporation by the Special Land
Acquisition Officer namely the respondent No.2, only on
22.08.2016 whereas the work of construction of 15 MLP
Sewage Treatment Plant (STP) over the Government land
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which was handed over to the Corporation on 17.01.2008, had
already commenced.
15. Be that as it may, the present petition has been filed
much after the land acquisition proceedings under the Act,
1894 were brought to its logical end on the premise of the
deemed lapse provision under Section 24(2) of the Right to
Fair Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act, 2013 (for short “the Act,
2013”) agitating that neither the compensation amount was
paid to the petitioners nor the physical possession of the land
in question has been taken.
16. It seems that the writ petition was entertained in view of
the challenge brought in such litigations wherein one of the
matters has been decided by the Division Bench of this Court
in Special Civil Application No. 4834 of 2015 pertaining to a
continguous land subject matter of same, acquisition, namely
Block No.16 of Moje Village Asarma, Tal.Choryasi, Dist. Surat
admeasuring 12,748 sq. mtrs.. The acquisition proceedings, in
the said case, have been held to have lapsed under Section
24(2) of the Act, 2013.
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17. It is held by the Division Bench of this Court that
therein Section 24(2) of the Act, 2013 provides that in case of
the land acquisition proceedings initiated under the Act, 1894,
where an award under Section 11 has been made five years or
more prior to the commencement of the Act, 2013, but the
physical possession of the land under acquisition has not been
taken or compensation has not been paid, the said
proceedings shall be deemed to have lapsed. It was held
therein in the facts of the said case that the award under
Section 11 of the Act, 1894 though was passed more than five
years prior to 01.01.2014 (the date of commencement of the
Act, 2013), however, actual possession of the land in question
had not been taken and even the compensation had not been
paid to the land holders.
18. In the judgment and order dated 01.03.2016 passed in
the aforesaid matter, it was noted that only 80% of the
compensation has been deposited with the Government
Treasury which would not satisfy the requirement of
payment of compensation, as envisaged under Section
24(2) of the Act, 2013 and that the respondents have not
raised any dispute either about the payment of compensation
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or about the status of possession of the land.
19. These observations made in the judgment and order
dated 01.03.2016 passed with respect to the similarly situated
land, has been pressed into service by the learned Senior
counsel for the petitioners to submit that the State-authorities
or the Municipal Corporation had not raised any objection
before the Division Bench in the similar matter that the
compensation had not been paid to the land holders, whose
lands were acquired by the acquisition notification dated
19.04.2006 under Section 6 of the Act, 1894 and the award
with respect to that was passed on 21.04.2008 under Section
11 of the Act, 1894, which is the same acquisition with
respect to the lands of the petitioners.
20. Placing reliance upon the observations made by the
Hon’ble Apex Court in paragraph No. ‘200’ of the Indore
Development Authority (Supra), it was vehemently argued
that the consequence of payment not being made under
Section 31(1) and the consequence of the amount not being
deposited under Section 31(2) of the Act, 1894, had been
clearly delineated by the Hon’ble Apex Court in the discussion
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therein on the issue as to what meaning is to be given to the
word “paid” used in Section 24(2) and “deposited” used in the
proviso to Section 24(2)“. The observations in paragraph No.
‘200’ of the decision of Indore Development Authority
(Supra) placed before us are extracted hereinunder :-
“200. Connected with this issue are questions like what is the
consequence of payment not being made under section 31(1)
and what are the consequences of amount not deposited
under section 31(2). The provision of section 24(2) when it
provides that compensation has not been paid where award
has been made 5 years or more prior to the commencement
of the Act of 2013. In contradistinction to that, the proviso
uses the expression “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”. We
have to find out when an amount is required to be deposited
under the Act of 1894 and how the payment is made under
the Act of 1894. The provisions of Section 31 of the Act of
1894 are attracted to the interpretation of provisions of
section 24(2) to find out the meaning of the words ‘paid’ and
‘deposited’. Section 31(1) makes it clear that on passing of
award compensation has to be tendered to the beneficiaries
and Collector shall pay it to them. The payment is provided
only in section 31(1). The expression ‘tender’ and pay to them
in section 31(1) cannot include the term ‘deposited.’
21. From the reading of the same, it is clear that the
issue No.’3′ was pertaining to the meaning of the word
“deposited” used in the proviso to Section 24(2), whereas
Section 24(2) used the word “paid” for the proceedings
deemed to have been lapsed.
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22. The Hon’ble Apex Court after an exhaustive discussion
on the meaning of the two expressions in sub section (2) of
Section 24 of the Act, 2013 has held in paragraph No. ‘202’
that:-
“202. Section 24(2) deals with the expression where
compensation has not been paid. It would mean that it has
not been tendered for payment under section 31(1). Though
the word ‘paid’ amounts to a completed event however once
payment of compensation has been offered/tendered under
section 31(1), the acquiring authority cannot be penalized for
non-payment as the amount has remained unpaid due to
refusal to accept, by the landowner and Collector is
prevented from making the payment. Thus, the word ‘paid’
used in section 24(2) cannot be said to include within its ken
‘deposit’ under section 31(2). For that special provision has
been carved out in the proviso to section 24(2), which deals
with the amount to be deposited in the account of
beneficiaries. Two different expressions have been used in
section 24. In the main part of section 24, the word ‘paid’ and
in its proviso ‘deposited’ have been used.”
23. The question before the Hon’ble Apex Court, thus, was
as to what would be the consequence of non-deposit of the
amount of compensation under the proviso to sub section (2)
of Section 24, which was answered in paragraph No. ‘207’ on
issue No.3, of extracted hereinunder :
“207. In our considered opinion, there is a breach of
obligation to deposit even if it is taken that amount to be
deposited in the reference court in exigencies being
prevented from payment as provided in Section 31(2).
The default will not have the effect of reopening the
concluded proceedings. The legal position and
consequence which prevailed from 1893 till 2013 on
failure to deposit was only the liability for interest and
all those transactions were never sought to bePage 13 of 33
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invalidated by the provisions contained in Section 24. It
is only in the case where in a pending proceeding for a
period of five years or more, the steps have not been
taken for taking possession and for payment of
compensation, then there is a lapse under section 24(2).
In case amount has not been deposited with respect to
majority of land holdings, higher compensation has to
follow. Both lapse and higher compensation are qualified
with the condition of period of 5 years or more.”
24. A careful reading of the aforesaid paragraph indicates
that it is categorically held by the Hon’ble Apex Court in
Indore Development Authority (Supra) that the legal
position and consequence which prevailed from 1893 till 2013
on failure to deposit was only the liability for interest and all
those transactions were never sought to be held invalid by the
provisions contained in Section 24 of the Act, 2013. It is only
in the case where in a pending proceedings for a period of five
years or more, steps have not been taken for taking
possession and for payment of compensation, then there is a
lapse under Section 24(2). It is further provided that in case
amount has not been deposited with respect to majority of
land holdings, higher compensation has to follow. Both lapse
and higher compensation are qualified with the condition of
period of 5 years or more. It was finally concluded in
paragraph No. ‘226’ on issue No.3, as under :-
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“226. Thus, in our opinion, the word “paid” used in Section
24(2) does not include within its meaning the word
“deposited”, which has been used in the proviso to Section
24(2). Section 31 of the Act of 1894, deals with the deposit as
envisaged in Section 31(2) on being ‘prevented’ from making
the payment even if the amount has been deposited in the
treasury under the Rules framed under Section 55 or under
the Standing Orders, that would carry the interest as
envisaged under Section 34, but acquisition would not lapse
on such deposit being made in the treasury. In case amount
has been tendered and the landowner has refused to receive
it, it cannot be said that the liability arising from non-
payment of the amount is that of lapse of acquisition. Interest
would follow in such a case also due to non-deposit of the
amount. Equally, when the landowner does not accept the
amount, but seeks a reference for higher compensation, there
can be no question of such individual stating that he was not
paid the amount (he was determined to be entitled to by the
collector). In such case, the landowner would be entitled to
the compensation determined by the Reference court.”
25. It was argued on behalf of the respondents therein that
the reference was sought for higher compensation and the
land owners had declined to accept the compensation for no
good reason. They could have received it under protest
reserving their rights to seek the reference and, in case, the
compensation was not paid or deposited, they could have
claimed it along with the interest as envisaged under Section
34. In the counter, it was argued on behalf of the land owners
that as the compensation amount has been deposited in
treasury instead of the court, the same would not qualify the
requirement of payment of compensation under Section 24(2)
of the Act, 1894 and the acquisition would lapse, as it would
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amount to the compensation not being paid within the
meaning of sub section (2) of Section 24 of the Act, 2013.
26. On the said submissions, the answer was given by the
Hon’ble Apex Court reads paragraph Nos. ‘243’, ‘244’ and
‘245’ in the following :-
“243. It is clear that once land is acquired, award passed and
possession has been taken, it has vested in the State. It had
been allotted to beneficiaries. A considerable infrastructure
could have been developed and a third-party interest had also
intervened. The land would have been given by the acquiring
authorities to the beneficiaries from whose schemes the land
had been acquired and they have developed immense (1997)
10 SCC 77 infrastructure. We are unable to accept the
submission that merely by deposit of amount in treasury
instead of court, we should invalidate all the acquisitions,
which have taken place. That is not what is contemplated
under Section 24(2). We are also not able to accept the
submission that when law operates these harsh consequences
need not be seen by the court. In our opinion, that submission
is without merit in as such consequences are not even
envisaged on pro””per interpretation of Section 24(2), as
mentioned above.
244. The proviso to Section 24(2) of the Act of 2013, intends
that the Collector would have sufficient funds to deposit it
with respect to the majority of landholdings. In case
compensation has not been paid or deposited with respect to
majority of land holdings, all the beneficiaries are entitled for
higher compensation. In case money has not been deposited
with the Land Acquisition Collector or in the treasury or in
court with respect to majority of landholdings, the
consequence has to follow of higher compensation as per
proviso to Section 24(2) of the Act of 2013. Even otherwise, if
deposit in treasury is irregular, then the interest would follow
as envisaged under Section 34 of Act of 1894. Section 24(2) is
attracted if acquisition proceeding is not completed within 5
years after the pronouncement of award. Parliament
considered the period of 5 years as reasonable time toPage 16 of 33
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complete the acquisition proceedings i.e., taking physical
possession of the land and payment of compensation. It is the
clear intent of the Act of 2013, that provision of Section 24(2)
shall apply to the proceeding which is pending as on the date
on which the Act of 2013, has been brought into force and it
does not apply to the concluded proceedings. It was urged
before us by one of the Counsel that lands in the Raisina Hills
and Lutyens’ Zones of Delhi were acquired in 1913 and
compensation has not been paid. The Act of 2013 applies only
to the pending proceedings in which possession has not been
taken or compensation has not paid and not to a case where
proceedings have been concluded long back, Section 24(2) is
not a tool to revive those proceedings and to question the
validity of taking acquisition proceedings due to which
possession in 1960s, 1970s, 1980s were taken, or to question
the manner of deposit of amount in the treasury. The Act of
2013 never intended revival such claims. In case such
landowners were interested in questioning the proceedings of
taking possession or mode of deposit with the treasury, such
a challenge was permissible within the time available with
them to do so. They cannot wake from deep slumber and
raise such claims in order to defeat the acquisition validly
made. In our opinion, the law never contemplates -nor
permits- misuse much less gross abuse of its provisions to
reopen all the acquisitions made after 1984, and it is the duty
of the court to examine the details of such claims. There are
several litigations before us where landowners, having lost
the challenge to the validity of acquisition proceedings and
after having sought enhancement of the amount in the
reference succeeding in it nevertheless are seeking relief
arguing about lapse of acquisition after several rounds of
litigation.
245. The expression used in Section 24(1)(b) is ‘where an
award under Section 11 has been made”, then ‘such
proceedings shall continue’ under the provisions of the said
Act of 1894 as if the said Act has not been repealed’. The
expression “proceedings shall continue” indicates that
proceedings are pending at the time; it is a present perfect
tense and envisages that proceedings must be pending as on
the date on which the Act of 2013 came into force. It does not
apply to concluded proceedings before the Collector after
which it becomes functus officio. Section 24 of the Act of
2013, does not confer benefit in the concluded proceedings,
of which legality if question has to be seen in the appropriatePage 17 of 33
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proceedings. It is only in the pending proceedings where
award has been passed and possession has not been taken
nor compensation has been paid, it is applicable. There is no
lapse in case possession has been taken, but amount has not
been deposited with respect to majority of land holdings in a
pending proceeding, higher compensation under the Act of
2013 would follow under the proviso to Section 24(2). Thus,
the provision is not applicable to any other case in which
higher compensation has been sought by way of seeking a
reference under the Act of 1894 or where the validity of the
acquisition proceedings have been questioned, though they
have been concluded. Such case has to be decided on their
own merits and the provisions of Section 24(2) are not
applicable to such cases.”
27. Ms. Hetal Patel, learned Assistant Government Pleader
appearing for the State-respondents further relies upon the
decision of the Hon’ble Apex Court dated 17.03.2023 in SLP
(C) Nos. 34752-53 of 2016 wherein after consideration of
the law laid down by the Hon’ble Apex Court in Indore
Development Authority (Supra) and the object of providing
for being lapse of the acquisition under section 24(2) of the
Act, 2013, it is held as under :-
“6.1 As per the law laid down by this Court in the case of
Indore Development Authority (Supra) and even otherwise
considering the object of providing the deemed lapse of
acquisition under Section 24[2] of the Act, 2013 seems to be
that if there is any lapse on the part of the Acquiring Body /
agency in not taking the possession and not paying the
compensation there shall be deemed lapse of acquisition.
Therefore, for a deemed lapse under Section 24(2) of the Act.
2013. there shall be a lapse on the part of the Acquiring Body
/ beneficiary in not taking the possession and not paying the
compensation. In the present case, both the conditions are
not satisfied. In fact, the amount of compensation under the
consent award under Section 11 of the Act, 1894 was offered
and the land owner was called upon to accept thePage 18 of 33
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compensation however, the land owner refused to accept the
same. Even the possession was taken by drawing the
panchnama at the time of declaration of the consent award
under Section 11 of the Act, 1894. However, thereafter,
because of the reluctance on the part of the original land
owner, the physical and actual possession of the land could
not be taken by the Acquiring Body. From the aforesaid it can
be seen that there was no lapse at all on the part of the
Authority neither in offering /paying the compensation nor in
not taking the possession. Therefore, the Division Bench of
the High Court has materially erred in declaring that the
acquisition with respect to the land in question is deemed to
have lapsed under Section 24(2) of the Act. 2013.”
28. It was clearly held therein that Section 24(2) of the Act,
2013 does not apply to concluded proceedings before the
Collector after which it becomes functus officio. Section 24 of
the Act, 2013 does not confer benefit in the concluded
proceedings and legality even if has to be seen in the
appropriate proceedings, it is only in the pending proceedings
where an award has been passed and possession has neither
been taken nor the compensation has been paid, Section 24 of
the Act, 2013 is applicable.
29.If there is no lapse in taking the possession,however, if the
amount has not been deposited with respect to the majority of
land holdings in the pending proceeding, higher compensation
under the Act, 2013 would follow under the proviso to Section
24(2). However, the said provision would not be applicable to
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any other case in which higher compensation has been sought
by way of seeking a reference under the Act, 1894 or where
the validity of the acquisition proceedings have been
questioned, though they have been concluded. Such cases
have to be decided on their own merits and the provision of
Section 24(2) is not applicable therein.
30. On the issue of not taking physical possession of the
lands in question raised herein to attract deemed lapse
provision under Section 24(2) of the Act, 1894, the
observations made in paragraph Nos. ‘261’, ‘277’, ‘278’, and
‘279’ in Indore Development Authority (Supra) are relevant
to be noted hereinunder :
“261. Now, the court would examine the mode of taking
possession under the Act of 1894 as laid down by this Court.
In Balwant Narayan Bhagde (supra) it was observed that the
act of Tehsildar in going on the spot and inspecting the land
was sufficient to constitute taking of possession. Thereafter,
it would not be open to the Government or the Commission to
withdraw from the acquisition under Section 48(1) of the Act.
It was held thus:
“28. We agree with the conclusion reached by our
brother Untwalia, J., as also with the reasoning on
which the conclusion is based. But we are writing a
separate judgment as we feel that the discussion in the
judgment of our learned Brother Untwalia, J., in regard
to delivery of “symbolical” and “actual” possession
under Rules 35, 36, 95 and 96 of Order 21of the Code
of Civil Procedure, is not necessary for the disposal of
the present appeals and we do not wish to subscribe to
what has been said by our learned Brother Untwalia, J.,Page 20 of 33
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in that connection, nor do we wish to express our
assent with the discussion of the various authorities
made by him in his judgment. We think it is enough to
state that when the Government proceeds to take
possession of the land acquired by it under the Land
Acquisition Act, LA, it must take actual possession of
the land since all interests in the land are sought to be
acquired by it. There can be no question of taking
“symbolical” possession in the sense understood by
judicial decisions under the Code of Civil Procedure.
Nor would possession merely on paper be enough.
What the Act contemplates as a necessary condition of
vesting of the land in the Government is the taking of
actual possession of the land. How such possession may
be taken would depend on the nature of the land. Such
possession would have to be taken as the nature of the
land admits of. There can be no hard and fast rule
laying down what act would be sufficient to constitute
taking of possession of land. We should not, therefore,
be taken as laying down an absolute and inviolable rule
that merely going on the spot and making a declaration
by beat of drum or otherwise would be sufficient to
constitute taking of possession of land in every case.
But here, in our opinion, since the land was lying fallow
and there was no crop on it at the material time, the act
of the Tehsildar in going on the spot and inspecting the
land for the purpose of determining what part was
waste and arable and should, therefore, be taken
possession of and determining its extent, was sufficient
to constitute taking of possession. It appears that the
appellant was not present when this was done by the
Tehsildar, but the presence of the owner or the
occupant of the land is not necessary to effectuate the
taking of possession. It is also not strictly necessary as
a matter of legal requirement that notice should be
given to the owner or the occupant of the land that
possession would be taken at a particular time, though
it may be desirable where possible, to give such notice
before possession is taken by the authorities, as that
would eliminate the possibility of any fraudulent or
collusive transaction of taking of mere paper
possession, without the occupant or the owner ever
coming to know of it.”
277. In V. Chandrasekaran & Anr. v. Administrative Officer &
Ors.183, the land was acquired and possession was handed
over to the authorities. Later on the land was sold,
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documents were manipulated, and flats were constructed in
an illegal manner. It was held that the land once acquired,
cannot be restored. The State has no right to reconvey the
land and no person can claim such a right nor derive an
advantage. Sale of land after a notification under section 4 of
the LA Act was held to be void. It was held in the facts of the
case that the judicial process cannot be used to subvert its
way. Such persons must not be permitted to profit from the
frivolous litigation, and they must be prevented from taking
false pleas by relying on forged documents or illegal action.
278. We have seen the blatant misuse of the provisions of
section 24(2). Acquisitions that were completed several
decades before even to say 50- 183 (2012) 12 SCC 133 60
years ago, or even as far back as 90 years ago were
questioned; cases filed were dismissed. References were
sought claiming higher compensation and higher
compensation had been ordered. Now, there is a fresh bout of
litigation started by erstwhile owners even after having
received the compensation in many cases by submitting that
possession has not been taken and taking of possession by
drawing a Panchnama was illegal and they are in physical
possession. As such, there is lapse of proceedings.
279. The court is alive to the fact that are a large number of
cases where, after acquisition land has been handed over to
various corporations, local authorities, acquiring bodies, etc.
After depositing compensation (for the acquisition) those
bodies and authorities have been handed possession of lands.
They, in turn, after development of such acquired lands have
handed over properties; third party interests have intervened
and now declaration is sought under the cover of section
24(2) to invalidate all such actions. As held by us, section 24
does not intend to cover such cases at all and such gross
misuse of the provisions of law must stop. Title once vested,
cannot be obliterated, without an express legal provision; in
any case, even if the landowners’ argument that after
possession too, in case of non-payment of compensation, the
acquisition would lapse, were for arguments’ sake, be
accepted, these third party owners would be deprived of their
lands, lawfully acquired by them, without compensation of
any sort. Thus, we have no hesitation to overrule the
decisions in Velaxan Kumar (supra) and Narmada Bachao
Andolan (supra), with regard to mode of taking possession.
We hold that drawing of Panchnama of taking possession is
the mode of taking possession in land acquisition cases,
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thereupon land vests in the State and any re-entry or
retaining the possession thereafter is unlawful and does not
inure for conferring benefits under section 24(2) of the Act of
2013.”
31. It was, categorically noted by the Hon’ble Apex Court
that a fresh bout of litigation started by the erstwhile owners
even after having received compensation in many cases by
submitting that the possession has not been taken and taking
of possession by drawing a Panchnama was illegal and that
they are in physical possession of the acquired land and as
such, there is a lapse of proceedings.
32. It was also noted that in many such cases after depositing
compensation for the acquisition, the acquiring body has been
handed over the possession of lands and even the third party rights
have been created. However, a declaration therein has also been
sought under the cover of Section 24(2) of the Act, 2013 to
invalidate all such actions. It is categorically held therein that all
such cases would amount to gross misuse of the provisions of law.
The conclusion of the Hon’ble Apex Court in paragraph Nos. ‘365’
and and ‘366.9’ are relevant to be noted hereinunder :-
“365. 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 be said toPage 23 of 33
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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 to Section
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.
366. In view of the aforesaid discussion, we answer the
questions as under:
366.1. Under the provisions of Section 24(1)(a) in case the
award is not made as on 1.1.2014 the date of commencement
of Act of 2013, there is no lapse of proceedings.
Compensation has to be determined under the provisions of
Act of 2013.
366.2. 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 under Section 24(1)(b) of the Act of 2013 under the
Act of 1894 as if it has not been repealed.
366.3 The word ‘or’ used in Section 24(2) between possession
and compensation has to be read as ‘nor’ or as ‘and’. The
deemed lapse of land acquisition proceedings under Section
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 not been 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.
366.4. The expression ‘paid’ in the main part of Section 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 to Section 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 under Section 4 of the Act of 1894 shall be
entitled to compensation in accordance with the provisions of
the Act of 2013. In case the obligation under Section 31 of
the Land Acquisition Act of 1894 has not been fulfilled,
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interest under Section 34 of 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 under Section 4 of the Act of 1894.
366.5. In case a person has been tendered the compensation
as provided under Section 31(1) of the Act of 1894, it is not
open to him to claim that acquisition has lapsed under
Section 24(2) due to non-payment or non-deposit of
compensation in court. The obligation to pay is complete by
tendering the amount under Section 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 under Section 24(2) of the Act of
2013.
366.6. The proviso to Section 24(2) of the Act of 2013 is to be
treated as part of Section 24(2) not part of Section 24(1)(b).
366.7. The mode of taking possession under the Act of 1894
and as contemplated under Section 24(2) is by drawing of
inquest report/ memorandum. Once award has been passed
on taking possession under Section 16 of the Act of 1894, the
land vests in State there is no divesting provided under
Section 24(2) of the Act of 2013, as once possession has been
taken there is no lapse under Section 24(2).
366.8. The provisions of Section 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.
366.9. Section 24(2) of the Act of 2013 does not give rise to
new cause of action to question the legality of concluded
proceedings of land acquisition. Section 24 applies 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 time-barred
claims and does not reopen concluded proceedings nor allow
landowners to question the legality of mode of taking
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possession to reopen proceedings or mode of deposit of
compensation in the treasury instead of court to invalidate
acquisition.
33. In the facts of the present case, suffice it to say that the
provisions of Section 24(2) of the Act, 2013 would not be
attracted for the reasons as under :
(1) The acquisition in question was for a public
purpose of construction of the Sewage Treatment Plant
for Surat Municipal Corporation by invoking urgency
provisions under Section 17(4) of the Act 1894, the
challenge to which made by the petition has been
upturned by this Court. The acquisition proceedings,
thus, has attained finality.
(2) Admittedly, 80% of the compensation amount has
been deposited prior to the making of the award dated
21.04.2008 in view of the requirement of sub section (3-
A) of Section 17 of the Act, 1894.
(3) Section 17(1) permits the Collector to take
possession of the acquired land where urgency provision
has been invoked on the expiration of 15 days of the
publication of notice under Section 9(1) of the Act, 1894,
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which was admittedly issued to the petitioners herein on
05.05.2006, as stated in the writ petition itself.
(4) There is a complete silence in the writ petition
about any proceedings having been undertaken for
transfer of possession by drawing of panchnama or the
paper possession of the land in question having been
taken by the appropriate Government namely the State
Government herein.
(5) The award determining compensation of the land in
question was declared on 21.04.2008 under Section 11
of the Act, 1894.
(6) The notice under Section 12(2) of the Act, 1894
had been issued to the petitioners on 21.04.2008 itself,
as it is evident from the record, asking them to receive
compensation.
(7) The notices asking the petitioners/land owners to
deliver possession of the acquired land has also been
issued on 21.04.2008 and 24.11.2008 giving a date for
taking possession of the acquire land.
(8) The only contention made in the writ petition is
that the petitioners have not taken the compensation
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and compensation amount has also not been deposited in
the Court.
(9) The another contention is that the respondents
have not taken possession of the land in question and the
land continued to be in the possession of the petitioners
and the petitioners are using the land in question for the
agricultural purposes.
(10) The statement in paragraph No. ’11’ of the writ
petition to the above extent would refer to physical
possession of the acquired land which would have no
relevance, inasmuch as the transfer of possession by
drawing of panchnama or paper possession is held to be
an approved mode of taking possession under the Act of
1894 by the Hon’ble Apex Court in Indore
Development Authority (Supra).
34. For the above, we reach at an irresistible conclusion that
the acquisition proceedings with respect to the land in
question had been concluded to its logical end with the
making of the award dated 21.04.2008 and the notices issued
to the petitioners to receive compensation and to deliver
possession of the land in question to the appropriate
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Government. The fact that the Special Land Acquisition
Officer had handed over the physical possession of the land in
question to the Surat Municipal Corporation in the year 2016,
would not be relevant
35. For the above, in view of the law laid down by the
Hon’ble Apex Court in Indore Development Authority
(Supra), it is found that both the conditions of Section 24(2)
i.e., non-payment of compensation and physical possession of
the land in question have not been fulfilled in the facts and
circumstances of the present case, The refusal on the part of
the petitioners in receiving compensation after the notice
tendering compensation determined under the award had
been received by them, would not amount to non-payment of
the compensation under sub section (2) of Section 24 and the
phrase “the compensation not been paid”, does not satisfy.
36. Further, for the fact that there is a complete silence in
the writ petition about drawing of panchnama or paper
possession of the land in question pursuant to the notices
dated 21.04.2008 and 24.11.2008 also leads to the conclusion
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that the petitioners remained in the physical possession of the
land in question till the year 2016 in spite of the fact that the
acquisition proceedings were concluded in the year 2008
itself. Moreover, there is a categorical statement in the
affidavit of the Surat Municipal Corporation that despite
several attempts, the concerned land holders have not come
forward to collect the amount of compensation as well as they
did not hand over the possession of the subject land. The writ
petitioners, therefore, cannot be permitted to take benefit of
Section 24(2) of the Act, 2013 as there is no fault of the
respondents-authorities in carrying out the provisions of the
Act, 1894.
37. The Surat Municipal Corporation had deposited 100% of
amount towards the compensation and the Special Land
Acquisition Officer had sent notices tendering the
compensation amount to the land holders while requesting
them to hand over the physical possession of the land in
question to the respondent No.2, inasmuch as, the land in
question was acquired for public purposes.
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38. It is contended by the Corporation that for the conduct
of the petitioners who have not come forward to receive
compensation deposited in the Government Treasury in spite
of repeated notices issued by the Special Land Acquisition
Officer, they cannot be permitted to argue that the
compensation amount has not been ‘paid’ within the meaning
of sub section 2 of section 24 of the Act, 2013.
39. The submissions made by the learned Senior Counsel on
the distinction made by the Hon’ble Apex Court between the
words “paid” and “deposit” in paragraph No. ‘200’ of the
Indore Development Authority (Supra) while answering
Issue No.3 therefore, do not impress us, accordingly.
40. The prayers made in the writ petition to hold the
proceedings of acquisition having been lapsed by deeming
provision of Section 24(2) of the Act, 2013, therefore, cannot
be granted. In view of the law laid down in Indore Authority
Development (Supra), the present petition is liable to be
dismissed as such. No order as to costs.
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41. After the judgment was dictated in the open Court, the
learned Senior Counsel appearing for the petitioners would
submit that there is a status quo order operating in favour of
the petitioners till date and hence, the operation of this
judgment may be stayed.
42. We do not find any substance in the submissions of the
learned Senior Counsel for the petitioners for the facts noted
hereinabove and that the acquisition proceedings for
construction of Sewage Treatment Plant invoking urgency
provisions of 1894 Act had been culminated in the year 2018
and the challenge made to the acquisition proceedings in the
first round by the petitioners have also been upturned. The
present petition has been filed in the month of September,
2016, on the premise of the acquisition proceedings having
been lapsed by virtue of Section 24(2) of the Act, 2013, even
when the physical possession of the land in question had been
handed over to the Surat Municipal Corporation by the
Special Land Acquisition Officer by drawing a panchnama
dated 22.08.2016. The possession of the petitioners continued
by virtue of the interim order of this Court, if any, would be
that of an unauthorized occupant.
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43. For any submissions made by the learned Counsel for
the petitioners about the standing crop over the land in
question, the possession of which is found to be in an
unauthorized occupation of the petitioners, it would be open
for the petitioners to approach the competent authority for
permitting them to reap the crop if already ready. However,
this indulgence granted by this Court will not be treated as
any interim protection having been granted to the petitioners
and, in case, there is a requirement of cutting of the standing
crops for eviction of the petitioners from the land in question
in compliance of this order, the petitioners may only claim
compensation for the standing crops which shall be computed
by the office of the Collector, strictly in accordance with law.
In any case, the petitioners cannot be allowed to retain
possession of the land in question, on the premise of damage
to the crop sown by him, if any, once the land in question is
found to be in their unauthorized occupation. Consequently,
the connected Civil Applications stand disposed of.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BINA SHAH
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