Ashok Bhushan, C.J.
1. This writ appeal has been filed by the writ petitioner against the judgment dated 05.10.2015 in W.P.(C) No.4024 of 2014 by which judgment directions have been issued to the 1st respondent to prepare a fresh award in relation to the property acquired from the petitioner, by applying the principles relating to determination of compensation as provided under the 2013 Act.
2. Brief facts of the case as emerge from the pleadings are:
The proceedings under the Land Acquisition Act, 1894 (for short '1894 Act') were initiated proposing to acquire land for the construction of a parallel road, by notification under Section 4(1) dated 25.06.2013 which was also published in the daily newspapers dated 12.07.2013. Notice dated 22.07.2013 was issued under the Kerala Land Acquisition Rules inviting objections from the interested persons. Declaration under Section 6 of the Act was also issued on 16.2.2014. The land of the petitioner was acquired by the above notifications.
3. The petitioner filed the writ petition praying for the following reliefs:
a) To issue a writ of certiorari or any other appropriate writ or order to quash Ext.P3 notification issued under Section 4 (1) of the Land Acquisition act and Ext.P4 Government Order dated 19.04.2013 as amended by order dated 07.10.2013.
b) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents not to take any action in furtherance of Ext.P3 notification to acquire any land from the possession of the petitioner;
c) Award to the petitioner the costs of these proceedings;
d) Grant such other or further relief as this Hon'ble Court deems fit to grant in the particular facts and circumstances of the case.
4. The award under Section 11 however could not be declared before 01.01.2014 on which date the new Act namely The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as '2013 Act') was enforced. The writ petition was filed by the petitioner on 22nd September, 2015. Counter affidavit was also filed by the State defending the Land Acquisition proceedings.
5. The learned Single Judge heard the learned counsel for the parties and took a view that since no award under Section 11 of the 1894 Act has been passed, as per Section 24(1)(a) of 2013 Act, all provisions of 2013 Act relating to determination of compensation shall apply to the pending proceedings, hence the writ petition was disposed of by the following directions:
3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that in terms of Section 24(1) (a) of the 2013 Act, where no award under Section 11 of the Land Acquisition Act, 1894 has been made after the coming into force of the 2013 Act, all provisions of the 2013 Act relating to the determination of compensation shall apply to pending proceedings. In the light of the specific provisions, therefore, it is clear that any award passed by the respondents, in respect of Land Acquisition proceedings initiated under the 1894 Act, but not concluded with the passing of an award therein till the coming into force of the 2013 Act, must determine the compensation amount payable in accordance with the principles for determination of compensation as stipulated in the 2013 Act. Inasmuch as the said exercise has not been done while passing Exts.P9 and P10 awards, the same cannot be construed to be awards within the meaning of the term under the 2013 Act. I therefore dispose the writ petition with a direction to the 1st respondent to pass fresh awards in relation to the property acquired from the petitioner, by applying the principles relating to determination of compensation as provided under the 2013 Act. The 1st respondent shall pass fresh awards, as directed, within a period of three months from the date of receipt of a copy of this judgment. I make it clear that, proceedings for taking possession of the property pursuant to Ext.P11 notice shall stand deferred till such time as awards are passed as directed and communicated to the petitioner.
The petitioner aggrieved by the said judgment has come up in this appeal.
6. Sri.N.N. Sugunapalan, learned Senior Counsel appearing for the appellant/writ petitioner has pressed only one submission to challenge the entire Land Acquisition proceedings. He submits that as per Section 25 of the 2013 Act the award has to be declared within 12 months from the date of publication of declaration and award having not been declared within one year, the entire land acquisition proceedings have lapsed and the learned Single Judge ought to have declared the entire Land Acquisition proceedings as lapsed. It is submitted that by virtue of Section 24(1)(a) where no award under Section 11 has been passed, the provisions of the new Act has been made applicable which also includes the applicability of Section 25 of 2013 Act.
7. Learned Government Pleader appearing for the State refuting the submission of learned counsel for the appellant contends that the Land Acquisition proceedings in the facts of the present case has not lapsed. It is submitted that in view of Section 24(1)(a) since the award under Section 11 of 1894 Act has not been passed, the award has to be delivered in accordance with the provisions of 2013 Act relating to the determination of compensation. It is submitted that the provisions of the new act in preparing the award shall be applicable only to the extent of determination of compensation and Section 25 of the 2013 Act is not applicable. He also relies on Section 6 of the General Clauses Act, 1897 and submits that the proceedings which were initiated under the Land Acquisition Act, 1894 has to be completed as per the earlier Act except for determination of compensation and the judgment of learned Single Judge does not suffer from any error of law.
8. We have considered the submissions of learned counsel for the parties and have perused the record.
9. The only issue to be considered in this Writ Appeal is as to whether for preparing an award in pursuance of Land Acquisition proceedings initiated under the 1894 Act, the period of limitation as provided by Section 25 i.e. one year from the date of publication of the declaration, shall be applicable and the award having not been declared within one year from Section 6 declaration, the entire land acquisition proceedings have to be treated as lapsed.
10. From the facts as noted above, it is clear that Notification under Section 4 of 1894 Act was published in the Gazette dated 25.06.2013 and in the daily news paper dated 12.07.2013 and notification under Section 6 dated 17.02.2014 was published in the daily newspaper on 28.03.2014/29.03.2014. The declaration under Section 6 was published on 17.02.2014 in the Gazette after the enforcement of 2013 Act. The question is as to whether the award is required to be made within one year from the said declaration as per Section 25 or it is to be made within two years as was required by Section 11A of 1894 Act.
11. The relevant provisions of 2013 Act in the above context has now to be noted. Section 24 contains heading Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases . Section 24(1) and (2) read as under:
24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases.- (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceeding initiated under the Land Acquisition Act, 1894 (1 of 1894),-
(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in subsection (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
12. Section 25 deals with the period within which an award shall be made which reads as under:
25. Period within which an award shall be made.- The Collector shall make an award within a period of twelve months from the date of publication of the declaration under section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.
Provided that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same;
Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.
13. Section 26 to 30 of the Act contains various provisions regarding determination of the market value of the land and amount of compensation to be payable to the land owners. Section 19 of 2013 Act is a declaration akin to Section 6 of the old Act. Section 19(1) is quoted as below:
19. Publication of declaration and summary of Rehabilitation and Resettlement.- (1) When the appropriate Government is satisfied, after considering the report, if any, made under sub-section (2) of section 15, that any particular land is needed for a public purpose, a declaration shall be made to that effect, along with a declaration of an area identified as the resettlement area for the purposes of rehabilitation and resettlement of the affected families, under the hand and seal of a Secretary to such Government or of any other officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same preliminary notification irrespective of whether one report or different reports has or have been made (wherever required).
14. Another provision which is relevant is Section 114 which is a provision pertaining to repeal and saving. Section 114 is quoted as below :
114. Repeal and saving.- (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.
(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals.
15. Section 24 has two sub sections. The heading of the Section indicates that the provision has been made for Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases . Thus the heading contains an indication that Section contemplates for circumstances when Land Acquisition shall be deemed to have lapsed. However, Sub-section (1) indicates that the Land Acquisition proceedings initiated under Land Acquisition Act, 1894 does not lapse rather has to be completed in accordance with the provisions as indicated in sub-section (a) and (b), whereas sub-section (2) contains circumstances under which Land Acquisition proceedings have to be deemed to have lapsed. Thus Section 24(1) does not contain any circumstances under which it has to be deemed that acquisition has lapsed. Section 24(1) (a) and 24(1)(b) enumerates two different circumstances. Sub-clause (a) is applicable where no award under Section 11 of the Land Acquisition Act, 1894 has been made and sub-clause (b) contains a situation where an award under Section 11 has been made. The present case is covered by Section 24(1)(a), since the award under Section 11 has not been made. Section 24(1) contains a situation where proceedings under the Land Acquisition Act 1894 has been initiated. There is no dispute in the present case that proceedings had already been initiated since Section 4 notification has already been published before enforcement of 2013 Act. Proceedings initiated under the Land Acquisition Act, 1894 have to be completed as per Section 24(1). The words used in sub-clause (a) are relevant. While enacting Section 24(1) (a) the legislature deliberately used the words all provisions of this Act relating to the determination of compensation shall apply . The provision has been enacted in a qualifying manner confining the applicability of the new act only relating to the determination of compensation. Had they intended to apply all provisions of the new Act on the acquisition proceedings which have been initiated under 1894 Act, the legislature would have used different phraseology.
16. In a case where Section 4 notification has already been published prior to enforcement of new Act, if it is held that no declaration under Section 6 can be issued and only declaration under Section 19 has to be issued, the said requirement is difficult to comply since declaration under Section 19 which is akin to Section 6 requires publication of declaration and summary of rehabilitation and resettlement. The summary of rehabilitation cannot be included in a declaration with regard to acquisition proceedings which has been initiated under 1894 Act. When Section 19 cannot be held to be applicable for issuing a declaration with regard to a notification under Section 4 issued prior to the new Act, there is no occasion to insist that the period prescribed in Section 25 for an award is to be applied. Legislature consciously and deliberately qualified the applicability of the provisions of new Act with regard to the Land Acquisition proceedings initiated prior to enactment of 2013 Act and in a case where award has not been issued, only limited provisions pertaining to determination of compensation has been made applicable.
17. The limitation prescribed under Section 25 for declaring award cannot be held to be applicable due to following other reasons. (i) In a case a notification under Section 4 and declaration under Section 6 have been issued prior to the enactment, e.g.declaration under Section 6 has been issued 1 years before the new enactment, whether on enforcement of the new Act from 01.01.2014, the entire acquisition proceedings shall lapse since the award has not been issued within one year as contemplated under Section 25? Whereas under the old act the Collector had power to pass an award within two years and said two years period has not expired on the date when the new act was enacted. To accept that the entire acquisition proceedings shall lapse on account of Section 25 is to do violence with the language and the scheme as delineated by the new Act. The acquisition cannot be treated to have lapsed on fault of none. Thus even after enforcement of 2013 Act, the period for declaration of the award, i.e. two years, shall be still applicable when proceedings have been initiated under 1894 Act, since Section 24(1)(a) applies to the provisions of new act only in a qualified manner as indicated above.
(ii) Further, Section 25 provides for period of 12 months from the date of publication of declaration under Section 19. Present is not a case wherein the declaration under Section 19 was issued. Section 25 thus shall be applicable only when a declaration under Section 19 has been issued, since it specifically mentions Section 19 of the Act. Section 25 does not contemplate running of the limitation from the declaration issued under Section 6 of the old Act.
(iii) Further Section 24(1) begins with a non-obstante clause i.e. notwithstanding anything contained in this Act . Thus Section 24(1) has to be given effect to notwithstanding any other provisions of the Act. Thus the provisions of Section 25 in so far as question of limitation is concerned in reference to declaration under Section 6 shall not be applicable.
(iv) Lastly, Section 114(2) of the 2013 Act specifically provides for applicability of Section 6 of the General Clauses Act, 1897. Thus the principles under Section 6 of the General Clauses Act shall be applicable unless there is a contrary intention in any other provisions of law.
18. Section 6 of the General Clauses Act, 1897 is relevant which is quoted as below:
6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be institute, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
19. Section 6 of the General Clauses Act 1897 provides that where an Act is repealed, then, unless a different intention appears, the repeal shall not affect any right or liability acquired or incurred under the repeal enactment or any legal proceedings in respect of such right or liability and the legal proceedings may be continued as if the repealing Act has not been passed.
20. The Apex Court in State of Punjab v. Mohar Singh Pratap Singh [AIR 1955 SC 84] has held that Section 6 applies even where the repealing Act contains fresh legislation on the same subject but in such a case one would have to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. The Apex Court further held that the line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifest an intention to destroy them . Following observations have been made by the Apex Court in the above case:
(10) The Advocate-General of Punjab has drawn our attention to certain American authorities which hold that in case of simultaneous repeal and re-enactment, the reenactment is to be considered as reaffirmation of the old law and the provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly. It appears that judicial opinion in America on this point is not quite uniform and we do not consider it necessary to express any opinion upon it. The provisions of Section 6 of the General Clauses Act will, in our opinion, apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. The result is that the appeal is allowed and the judgment of the High Court set aside.
21. Another judgment of the Apex Court which is relevant for interpretation of Section 6 of the General Clauses Act is Bansidhar and others v. State of Rajasthan and others [(1989) 2 SCC 557]. In the aforesaid case in the State of Rajasthan, the Rajasthan Tenancy Act, 1955 was enacted which held the field. In the aforesaid Tenancy Act by Rajasthan Tenancy (Amendment) Act, 1960, Section 5 was amended by introducing Clause 6A which defines ceiling area. Subsequently, by Imposition of Ceiling on Agricultural Holdings Act, 1973, Chapter 3B and Section 5(6A) were repealed. The question was as to whether any proceedings under the old Act could have been initiated or continued after the enactment of 1973 Act. The issue was noted in paragraph 6 of the judgment which is to the following effect:
6. We have heard Sri. A.K. Sen, Sri.Tarunde and Sri.Shanti Bhusan, learned senior advocates for the appellants and Sri.Lodha, learned senior advocate for the State of Rajasthan and its authorities. The appellants' principal contention - which we perceive as one of the construction of statutes - is that the later law made manifest, expressly and by necessary implication, an intention inconsistent with the continuance of the rights and obligations under the repealed law and that, accordingly, after January 1, 1973, the date of coming into force of the '1973 Act', no proceedings under the old law could be initiated or continued.
The Apex Court after looking to the Scheme of 1955 and 1973 Act and Section 6 of the General Clauses Act laid down the following in paragraphs 21, 28, 37 and 39 :
21. When there is a repeal of a statute accompanied by reenactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for the purpose of ascertaining whether the consequences envisaged by S.6 of the General Clauses Act ensued or not - S.6 would indeed be attracted unless the new legislation manifests a contrary intention but only for the purpose of determining whether the provisions in the new statute indicate a different intention. Referring to the way in which such incompatibility with the preservation of old rights and liabilities is to be ascertained this Court in State of Punjab v. Mohar Singh, 1955 (1) SCR 893 : (AIR 1955 SC 84) said:
"............. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new Law and the mere absence of a saving clause is by itself not material. The provisions of S.6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in S.6 of, the Act will apply only when a statute or regulation having the force of a statute is actually repealed .........."
28. A saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or the rights that survive the repeal. It is observed by this Court in I. T. Commr. U.P. v. Shah Sadiq and sons, AIR 1987 SC 1217 at p. 1221:
".......... In other words whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind S.6(c), General Clauses Act, 1897 ............
"
We agree with the High Court that the scheme of the 1973 Act does not manifest an intention contrary to, and inconsistent with, the saving of the repealed provisions of S.5(6A) and Chapter 111-13 of '1955 Act' so far as pending cases are concerned and that the rights accrued and liabilities incurred under the old law are not effaced. Appellant's contention (a) is, in our opinion, insubstantial.
37. It is, therefore, seen that the right of the State to take over excess land vested in it as on the appointed day and only the quantification remained to be worked out. As observed by Lord Morris, in Director of Public Works v. Ho.Po Sang, 1961 (2) All ER 721.
"It may be therefore, that under some repealed enactment, a right has been given. but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should not be given. On a repeal the former is preserved by the Interpretation Act. The latter is not."
39. We agree with the High Court that the right of the State to the excess land was not merely an inchoate right under the Act, but a right "accrued" within the meaning of S.6(c) of the Rajasthan General Clauses Act, 1955, and the liability of the land owner to surrender the excess land as on 1-4-1966 was a liability "incurred" also within the meaning of the said provision. There is no substance in contention (b) either.
22. The declaration of the award under the old Act was also a proceeding which has to be continued even after the enactment of 2013 Act. There is no contrary intention in 2013 Act to indicate that when the award has not been declared prior to enforcement of 2013 Act, all proceedings pertaining to declaration of the award including the limitation shall be governed by the new Act.
23. As noted above, the provisions of new Act which are applicable in a case where the award has not been passed, have been consciously qualified under Section 24(1)(a) only to the extent it relates to the determination of compensation. Thus there being no other contrary intention in any of the provisions we are of the view that Section 6 of the General Clauses Act read with Section 114 of 2013 Act clearly saves the proceedings regarding preparation of the award in so far as limitation for declaring the award is concerned.
In view of the foregoing discussion, we are of the view that the submission made by learned Counsel for the appellant that, the entire land acquisition proceeding has lapsed, cannot be accepted. We find no error in the judgment of learned Single Judge. The Writ Appeal is dismissed.