Fortuna Agro Plantations Ltd. vs The State of Tripura and Others

Deepak Gupta, C.J.

By means of this writ petition, the petitioner has prayed that the land acquisition proceedings initiated under the Land Acquisition Act, 1894 (L.A. Act) have lapsed and, therefore, the land which was acquired be returned or fresh proceedings for land acquisition be initiated.

The undisputed facts are that the work of border fencing has been taken up in a big way in the State of Tripura to fence the Indo-Bangladesh border. The Border Security Force (BSF) is overall in-charge of this work and in the year 2005 it submitted a proposal for acquisition of 0.04 acres of land belonging to the petitioner-company for construction of Observation Post Tower (OP Tower) which is required at the border of the nation. It is apparent that the BSF authorities were writing to the civil authorities time and again and after about 2 years the SDM, Kailashahar sent a communication bearing No. 280 on 17.8.2007 enclosing land acquisition special form 10 and 11. This form also had the approval of National Building Construction Corporation (NBCC) which is the authority which carries out the work of erection of fence and towers. Notification under section 4 was issued on 07.11.2007 and declaration under section 6 was issued on 20.12.2007. During the course of hearing, the petitioner-company raised a very huge claim of Rs. 4,64,42,306/- being cost of the land, trees, bamboos etc. in respect of the notified land. According to the petitioner-company, a lot of its other trees etc. had been damaged.

According to the Land Acquisition Collector, North Tripura, Kailashahar, he sent the claim of the petitioner-company to the Project Manager, NBCC on 18.3.2008 to furnish his views but did not receive any reply. This communication was also sent to the SDM, Kailashahar who replied that the BSF authorities had cut about 34 No. of trees and some Mirtinga bamboos were existing on the spot. Finally, the Land Acquisition Collector stated that since the acquisition proceedings could not be completed within two years, they may be deemed to be lapsed. This communication is dated 25.01.2010.

We are not going into the other aspects of the matter as to what is the damage caused. The only issue before us is whether the proceedings could be said to have lapsed.

Mr. B. Majumder, learned Central Government Counsel, has argued before us that the proceedings could not lapse since the emergency provision of Section 17 had been made applicable. His submission is that when Section 17 is made applicable, the land is utilized immediately and thereafter, construction has been raised. Therefore, the question of notification lapsing does not arise. Here we would like to mention that in fact the claim of the petitioner-company is that even before the notification under Section 4 read with Section 17 had been issued, the BSF authorities had constructed the OP Tower. It is not disputed before us that when the notification under Section 4 was issued, the emergency provisions of Section 17 were also invoked. This notification was issued on 07.11.2007 and nobody has challenged the invocation of the emergency provisions. Construction of the OP Tower is also complete. Learned Central Government Counsel drew our attention to the following judgments of the Supreme Court:--

In Satendra Prasad Jain and others v. State of U.P. and others reported in , AIR 1993 SC 2517, a 3 Judge Bench of the Apex Court held that the provisions of Section 11A are intended to benefit the land owners to ensure that the award is made within a period of two years from the date of declaration under section 6 of the Act. In that case, the compensation as required under section 17 was not paid and it was urged before the Supreme Court that since compensation as per the emergency provisions had not been paid, the acquisition proceedings had lapsed. Dealing with this contention, the Apex Court held as follows:--

"14. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.

Further, Section 17(3-A) postulates that the owner will be offered an amount equivalent to 80 per cent of the estimated compensation for the land before the Government takes possession of it under Section 17(1). Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation.

In the instant case, even that 80 per cent of the estimated compensation was not paid to the appellants although Section 17(3-A) required that it should have been paid before possession of the said land was taken but that does not mean that the possession was taken illegally or that the said land did not thereupon vest in the Ist respondent. It is, at any rate, not open to the third respondent, who, as the letter of the Special Land Acquisition Officer dated 27th June, 1990 shows, failed to make the necessary monies available and who has been in occupation of the said land ever since its possession was taken, to urge that the possession was taken illegally and that, therefore, the said land has not vested in the first respondent and the first respondent is under no obligation to make an award.

There is no merit whatsoever in the submission that compensation can be awarded to the appellants under Section 5. Section 5 postulates payment of compensation for damage done to land during the course of surveying it and doing all other acts necessary to ascertain whether it is capable of being adapted for a public purpose. Section 5 has no application to the instance case."

The same view has been taken in Awadh Bihari Yadav and others v. State of Bihar and others, [, AIR 1996 SC 122] wherein the Apex Court following the judgment in Satendra Prasad Jain''s case held that since the possession of the land had been taken after invoking the emergency provision, the land acquisition proceedings did not lapse.

In Allahabad Development Authority v. Nasiruzzaman and others, [, (1996) 6 SCC 424] the Apex Court held as follows:--

"4. The question that arises for consideration is whether the High Court was right in passing the order dated 15-12-1993 and the order dated 29-01-1990 declaring that the acquisition proceedings by operation of Section 11-A, as amended by Act 68 of 1984, stood lapsed and direction given for delivery of possession to the respondents would be in accordance with law? The controversy is no longer res integra. In Lt. Governor of H.P v. Avinash Sharma [, (1970) 2 SCC 149] this Court had laid down that once the lands stood vested in the State free from all encumbrances there is no question of divesting the land and revesting the land in the erstwhile owners. The only right the erstwhile owner has is as to the determination of compensation in accordance with the provision of the Act. In view of the fact that there was inordinate delay in passing the award after the declaration under Section 6(1) was published, Parliament in the Amendment Act introduced Section 11-A and directed that the Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration. If no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. Under the proviso, it was said that where the declaration has been published before the commencement of the Amendment Act, the award shall be made within a period of two years from the commencement of the Amendment Act. In the impugned judgment, it would appear that the learned Judges asked the counsel to verify whether the award came to be made within two years as indicated. The counsel on verification had stated that the award was not made within two years from the commencement of the Amendment Act, namely, 24-09-1984. Consequently, the declaration was given that the notification under Section 4(1) and the declaration under Section 6 stood lapsed. This question was examined by this Court in Satendra Prasad Jain & Ors. v. State of U.P. & Ors. [, (1993) 4 SCC 369] and Awadh Bihari Yadav & Ors v. State of Bihar & Ors [, (1995) 6 SCC 31] and held that Section 11-A does not apply to cases of acquisitions under Section 17 where possession was already taken and the land stood vested in the State. The notification under Section 4(1) and declaration under section 6 do not lapse due to failure to make an award within two years from the date of the declaration. The view of the High Court is erroneous in law."

The same view has been reiterated in Banda Development Authority, Banda v. Moti Lal Agarwal and others, [, (2011) 5 SCC 394]. In this case, before the Supreme Court there was some dispute whether possession had actually been taken over or not. The Apex Court held that possession had been taken over and following the judgments referred in Satendra Prasad Jain and Awadh Bihari Yadav''s case, the Apex Court held that the proceedings could not have lapsed.

On the other hand, Sri G.S. Bhattacharjee, learned counsel for the petitioner-company relied upon the judgment of the Apex Court in Laxmi Devi v. State of Bihar & others, [, AIR 2015 SC 2710] wherein the Apex Court held as follows:--

"21. This is also in line with a plain reading of Section 17(1), which states that ''once possession of the land is taken by the Government under Section 17, the land vests absolutely in the Government, free from all encumbrances''. In Section 48(1) the taking over of the possession of the land is of seminal significance in that the provision succinctly states that ''the Government shall be at liberty to withdraw from the acquisition of any land the possession of which has not been taken''. The next sub-Section covers calculation of compensation for the aborted occupation. The same position came to be reiterated in Satendra Prasad Jain by a Three Judge Bench of this Court. The acquisition proceedings including the exclusion of Section 5A had obtained the imprimatur of the Allahabad High Court; the urgency and public purpose had received curial concurrence. Possession of the land was taken by the State from the landowners. Previously, the Special Leave Petition filed by the landowners had been dismissed by this Court. Ironically, the subsequent stance of the State was that the acquisition of land under the urgency provisions was required to be set aside for the reason that the State had failed to pass an Award under Section 11 within two years and had also failed to pay eighty per cent of the estimated compensation required under Section 17(3A). Whilst the State endeavoured to withdraw from the acquisition, the erstwhile landowners opposed it. This Court directed the State ''to make and publish an award in respect of the said land within twelve weeks from today''. The abovementioned discussion bears out that this Court was concerned only with the issue of the land being returned by the State to the erstwhile owner. It does not go so far as to limit or restrict the rights of landowners to fair compensation for their expropriated property, as that is a Constitutional right which cannot be nullified, neutralised or diluted. We think it justified to again refer to the opinion in Satendra Prasad Jain that - ''Section 11A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of eighty per cent of the estimated compensation.'' The second issue, one that we feel must be kept in mind in the interpretation in the law laid down by this Court, is the factual matrices involved in both Satendra Prasad Jain and Avinash Sharma. In both these precedents, as well as in innumerable others that have relied upon them, the Government''s attempt was to misuse its own omissions to achieve its own oblique purposes. It was in this context that this Court declined to accede to the pleas of the Government. This Court poignantly repelled the State''s attempt to nullify the acquisition on the predication of its non-compliance with Sections 16 and 17(3A). The judicial intent was not to cause any loss to landowners, but to protect them. The pernicious practice that was becoming rampant, that is to make partial compliance with the statute and to follow the acquisition procedure in a piecemeal manner, and then to argue that its own lapses rendered its acquisition illegal, was roundly repulsed. Although this strictly constitutes obiter, we think it appropriate to clarify that where the landowners do not assail the acquisition, it may be open to them to seek a mandamus for payment to them, after a reasonable period, of the remaining compensation, which will thereupon metamorphose from a mere estimation to the actual compensation for the expropriation.

xxx xxx xxx

We do, however, recognize that Satendra Prasad Jain has been interpreted more broadly in the past. In Allahabad Development Authority v. Naziruzzaman , (1996) 6 SCC 424, General Manager, Telecommunication v. Dr. Madan Mohan Pradhan, , 1995 Supp (4) SCC 268, and Banda Development Authority, Banda v. Mota Lal Agarwal , (2011) 5 SCC 394, this Court has dismissed the landowners'' challenges to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad Jain. It is pertinent to note that all three of these cases were brief in their explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine their rationes decidendi, their innate contradictions, their intentions or their consequences at any length. We thus feel it appropriate to rely on our own detailed exploration of these cases, as opposed to simply placing reliance on the largely contradictory case law that has developed over the years. It was for this reason that we had revisited the curial concept of ratio decidendi.

The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raison d''etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.

We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided it re-acquires the land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State."

The grievance of the petitioner-company is not so much against the acquisition of the land but its main grievance is that though only a small portion of the land has been acquired, a lot of damage has been caused.

We are also clearly of the view that the BSF, the NBCC and the Union of India should not suffer for any lapses on the part of the officials of the State of Tripura. The Land Acquisition Collector did not do his duty properly and did not pass the award. Assuming for the sake of argument that the BSF authorities and the NBCC had not answered the letters of the Land Acquisition Collector, nothing prevented the Land Acquisition Collector to pass an order in terms of Section 11 of the Act. We feel that the facts of this case are totally different from Laxmi Devi''s case decided by the Apex Court.

In the present case, the land of the petitioner-company was used for purpose of defence of the country. It is a small piece of land measuring 0.04 acres. An OP Tower has been constructed on the same. The petitioner is entitled to compensation for the land but it would not be in the facts of this case proper to hold that the proceedings have lapsed. Even in Laxmi Devi''s case, the Apex Court has felt it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile land owners. In this case, the BSF authorities and the Union of India are willing to pay the compensation and have never refused to pay the compensation.

At the instance of the petitioner, a number of senior officers were summoned and the main grievance of the petitioner was that the respondents had acquired a much larger area than had been acquired. We may refer to the order dated 21.6.2012, relevant portion of which reads as follows:--

"It is submitted, on behalf of the respondents, who have appeared, in person, that they would file their affidavits within four weeks from today and, in the meanwhile, they would survey the acquisitioned land so as to determine if the respondent Nos. 4 and 5 have occupied the land larger in area than what had been acquisitioned. The affidavit of the respondent Nos. 1, 2 and 3 shall, therefore, clearly and categorically state as to whether respondent Nos. 4 and 5 are presently in occupation of land measuring an area more than 0.04 acre and if so, what is the total measurement of the land, which the respondent Nos. 4 and 5, are presently in occupation of, so that further necessary order, as may be deemed fit and proper by the Court, can be passed."

Thereafter, affidavits have been filed and in all these affidavits it is stated that only 0.04 acres of land of the petitioner-company has been used for construction of the OP Tower. This averment is contested by the company but this disputed question cannot be decided by us in these proceedings.

We are clearly of the view that in this case we should not ask for a fresh notification because a new Act has come into force and fresh notification for this purpose may take years under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The amount of land acquired is very small and, therefore, we are of the view that as far as this case is concerned, the facts are distinguishable from the facts set out in Laxmi Devi''s case and, therefore, the proceedings cannot be said to have lapsed.

We, therefore dismiss the writ petition but direct the Land Acquisition Collector to complete the acquisition proceedings within 6(six) months from today. No costs.