1. In this petition filed under Article 226 of the Constitution of India, the petitioners, villagers of Village Badora, Tehsil Karera, District Shivpuri have called in question the legality, validity and propriety of the notification dated 23.8.2013 issued under Section 4 of the Land Acquisition Act, 1984 (Act). The petitioners have also prayed that the respondents be restrained from encroaching the land over which they intend to construct a water pond.
2. Shri Arvind Dudawat, learned counsel for the petitioner submits that petitioners are owners of agricultural land bearing Survey No. 683, 696, 694 and 700 of Village Badora, Tehsil Karera, District Shivpuri. Their only source of livelihood is agriculture. It is contended that earlier for the benefit of resident of village Teela, a decision was taken to construct Teela tank on the land of said village which was duly identified. An order dated 17.1.2012 was passed for the purpose of construction of Teela tank. Thereafter, the State Government by order dated 12.3.2013 issued administrative sanction for disbursement of funds.
3. It is contended that because of pressure mounted by villagers of Gram Teela, the decision was changed and the impugned notification was issued in order to acquire the land in village Badora. He submits that the total agriculture land as per Government record in village Bodora is 243.90 hectares, out of which by impugned notification under Section 4, the respondents intend to acquire a land to the tune of 194.300 hectares. It is submitted that the petitioners are rustic villagers and are residing in remote area. There is no circulation of daily news papers in the said area. They never came to know about any Gazette notification published Section 4. However, by way of objection in 'Jan Sunwai' (Annexure P-4) dated 18.6.2013, they raised objection about proposed construction of tank at the land of their village. The petitioners actually came to know about such construction when the officers of the State Government equipped with JCB machine came to dig their valuable land. At this stage, on the basis of documents available with them, they filed this petition.
4. It is submitted that pursuant to interim order passed by this Court, the respondents could not proceed beyond the notice issued under Section 9 of the Act. It is also canvassed that the Gram Panchayat and Gram Sabha, Badora have also passed resolution against acquisition of the land in their village.
5. Shri Dudawat, learned counsel for the petitioner submits that The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the new Act, 2013) came into being w.ef. 1.1.2014. After commencement of the new Act, the earlier notification issued under Section 4 and Section 6 became a nullity. He relied on Section 114 of the new Act to submit that the entire Act of 1894 is repealed. The saving clause is to the extent of general application of Section 6 of the General Clauses Act, 1897. By taking this Court to Section 6 of the General Clauses Act, it is contended that Section 6 (a), (b), and (d) have no application in the facts and circumstances of the case. So far Clause (c) and (e) of Section 6 are concerned, it is urged that a conjoint and microscopic reading of these clauses will make it clear that only such proceedings under 1894 Act can be treated as saved in which any right has already been acquired or accrued. The said clause (c) and (e) are not applicable when mere proceedings were initiated in order to acquire the right but no right is actually accrued and acquired. Reliance is placed on AIR 1980 SC 72 (M.S.Shivananda Vs. The Karnataka State Road Transport Corpn. and Ors.), AIR 1989 SC 1614 (Bansidhar and Ors. Vs. State of Rajasthan and Ors.), AIR 1991 SC 2156 (Vinon Gurudas Raikar Vs. National Insurance Co. Ltd. and Ors.) and AIR 1993 SC 1188 (M/s. P.V. Mohammad Barmay Sons Vs. Director of Enforcement). To elaborate, Shri Dudawat, learned counsel for the petitioner submits that in view of these judgments, it is clear like noon day that merely because Section 4 notification was issued, no right on the petitioners' land is accrued in favour of the State Government. In absence thereof, the notification under Section 4 is not saved and, therefore, it should be treated as null and void. Shri Dudawat has taken pains to submit that as per the scheme and object of the new Act, it is clear that it is a very scientific and progressive Act. Sufficient care is taken by the Parliament to ensure that the land is not acquired in arbitrary manner which may result into deficiency of agricultural land. The new Act intends to ensure food security and availability of multiple crop irrigated land and prescribes a transparent procedure for acquiring the land. Shri Dudawat further submits that as per Section 24 (2) of the new Act, the respondents cannot be permitted to proceed with Section 4 notification. He submits that sub-section 2 of section 24 has an overriding effect on sub- section 1 and as per this provision, since admittedly neither compensation has been paid to the petitioners, nor their land has been actually acquired, the earlier notification has lost its complete shine and force. Reliance is also placed on (2014) 3 SCC 183 (Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Ors.).
6. In addition, Shri Dudawat submits that section 4 notification does not provide adequate particulars of the land sought to be acquired by the respondents. By taking this Court to Annxure R-1 (section 4 notification), it is contended that it shows that out of huge chunk of land, a limited area is sought to be acquired. However, it is not clear as to which portion of the entire survey number is sought to be acquired by the respondents. To clarify this, he drew the attention of this Court on Annexure P-5. Annexure P-5 is divided into various columns. Column 5 deals with the total area in hectares, whereas column 6 deals with the area sought to be acquired. For example, he submits that in item 1 (khasra No. 409), the total areas is 1.580 hectare, out of which only 0.420 hectare is sought to be acquired. The rustic villagers, by no stretch of imagination, can gather as to which piece of the land, out of entire Khasra would be acquired. Reliance is placed on the judgment of Supreme Court in Radhy Shyam ( Dead) through LRs and others Vs. State of U.P. and Ors) reported in (2011) 5 SCC 553 and judgment of this Court in (Raju Sharma Vs. State of M.P.) reported in 2013 (1) M.P.L.J. 652. It is submitted that the impugned notification under Section 4 is liable to be set aside on this score alone.
7. Shri Praveen Newaskar, learned Dy.G.A., on the other hand, opposed the relief. He submits that it is factually incorrect that news papers do not have any circulation in the villages where petitioners reside. He submits that the notification was published in the Gazette as well as in two prominent news papers, viz., Swadesh and Madhyaraj. He further submits that certain other villagers came forward and submitted their objections. The award has been passed under new Act in other cases and it could not be passed in the present case only because of the ad-interim order.
8. By taking this Court to Section 24(1) of the new Act, it is submitted that as per this provision, the reliance on Section 114 (1) of the new Act and Section 6 (c) (d) (e) of the general provisions Act is mis conceived. He submits that the respondents have not committed any error in issuing the notification under Section 4 of the Act. He submits that adequate information about the location of the land is available in S.4 notification against which petitioners could have submitted their objection.
9. No other point is pressed by the learned counsel for the parties.
10. I have bestowed my anxious consideration on the rival contentions and perused the record.
11. Argument of Shri Arvind Dudawat is of two fold. Firstly, he submits that on commencement of new Act, the earlier proceedings initiated pursuant to 1894 Act are not saved and are lapsed. In other words, he submits that Section 4 notification was issued prior to commence of new Act. As per Section 114 of the new Act and as per Section (6) of General Clauses Act, Section 4 notification and subsequent proceedings under the repealed Act do not survive. He contended that new Act prescribes a different methodology for acquisition. The respondents are now required to initiate the action since inception as per the new Act.
12. His second limb of argument is that Section 4 notification is also bad in law and is not inconformity with requirement and mandate of Section 4 of repealed Act. Before dealing with the contentions, I deem it proper to reproduce Section 24 and Section 114 of the New Act. The same reads 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 proceedings initiated under the Land Acquisition Act, 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 the 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 sub- section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 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.
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. (Emphasis supplied)
13. The argument of Shri Dudawat is based on certain Supreme Court judgments cited by him. Most of the judgments are based on interpretation of Section 6(c)(d)(e) of the General Clauses Act. In (Deep Chand Vs. The State of U.P. and Ors) reported in (AIR 1959 SC 648) the question was whether a scheme framed before repeal is saved under Section 6 of the General Clauses Act. The Apex Court opined that one has to look to the plain words of Section 6 and ascertain whether those words are comprehensive enough to take in a scheme already framed. It was held that the scheme framed is a thing done under the repealed Act. In (M.S. Shivnanda Vs. The Karnataka State Road Transport Corpn. and Ors) reported in (AIR 1980 SC 77) the Apex Court again opined that it depends on the construction of the statute whether a proceeding or a right is saved or not.
14. In Bansidhar (Supra) the Apex Court considered various judgments on the point and in the factual matrix of the said case opined that there is a distinction between what is and what is not a right preserved by Section 6 of the General Clauses Act. However, in the said case the Apex Court was dealing with the question whether a right accrued within the meaning of Section 6(c) of Rajasthan General Clauses Act, 1955 in relation to liability of the landowner to surrender the excess land as on 01.04.1966. In the present case, question is whether the notification under Section 4 of the repealed Act is saved or not on commencement of the new Act. Section 6(b) of General Clauses Act makes it clear that it is wide enough to save any previous operation of any enactment so repealed or anything duly done or suffered thereunder. The words used in clause (b) -"affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder" are very wide. The Supreme Court in AIR 1964 SC 1284 (State of Orissa and another Vs. M/s. M.A. Tulloch and Co. and Anr.) ( five Judges Bench) held as under:-
"Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in S.6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the notices of the demand had accrued prior to June 1, 1958 it would follow that these notices were valid and amounts due thereunder could be recovered notwithstanding the disappearance of the Orissa Act by Virtue of the superior legislation by the Union Parliament."
In (1972) 4 SCC 174 ( Jayantilal Amrathlal Vs. The union of India) the Apex Court opined as under:-
"8. The above contention is untenable. There are no provision in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(I)(10) of the "Rules". That being so, action under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold ( Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control ) Ordinance, the "Rules" were deemed as an act of Parliament. Hence on the repeal of the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed Law have been put an end to by the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question (See: State of Punjab Vs. Mohar Singh reported in Air 1955 SC 84;
(T.S. Baliah Vs. Income Tax Officer Central Circle VI, Madras ) reported in AIR 1969 SC 701) (Emphasis supplied)
15. In para 9 of the judgment of Jayantilal (Supra) the Apex Court agreed with the finding of the High Court that the proceedings commenced under the repealed Act must be deemed to be continued.
16. A five judges Bench of the Apex court in (2000) 2 SCC 536 (Kolhapur Canesugar Works Ltd. and another Vs. Union of India and Ors.) considered the scope of Section 6 of General Clauses Act. In para 34, the Apex Court opined as under :-
"34..... It is out considered view that in such a case the Court is to look to the provision in the rule which has been introduced after omission of the previous rule to determine whether pending proceedings will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such proceedings will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the rule has been framed, in that case also the pending proceedings will not be affected by omission of the rule. In the absence of any such provision in the statute or in the rule the pending proceedings would lapse on the rule under which the notice was issued or proceedings were initiated being deleted / omitted...." (Emphasis supplied)
As per this judgment, it is to be seen whether as per the repealing Act pending proceeding under the repealed Act would continue or would be treated as deleted or omitted. In other words, when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will be looked into to determine whether and how far the new act evinces a contrary intention affecting the operation of Section 6 of General Clauses Act (See: AIR 1955 SC 84 (State of Punjab Vs. Mohar Singh Pratap Singh), 1989(2) SCC 557 (Bansidhar and Ors. Vs. State of Rajasthan and Ors), ( 2000) 3 SCC 548 ( D. Srinivasan Vs. Commissioner and Ors.).
Section 114(2) of new act makes it clear that repeal of 1894 Act under sub-section (1) shall not prejudice or affect the general application of Section 6 of General Clauses Act. Thus, the effect of Section (6) of said Act is specifically saved by inserting sub-section (2) of Section 114 in the statute book.
17. Section (6)(b) of General Clauses Act, in my view, is wide enough to save the earlier notification issued under Section 4 notification under 1894 Act. In 2006 (3) SCC 354 (Gammon India Ltd. Vs. Special Chief Secretary and Ors.) the Apex Court considered the effect of Section 8 of A.P. General Clauses Act, 1891. The Apex Court opined that it is analogous to Section 6 of General Clauses Act. The Apex Court considered the earlier judgment reported in 1997 (1) SCC 650 (Gajraj Singh Vs. STAT) wherein question was whether renewal of the permit of the appellant granted under the repealed Act is a permit under the Act and its operation was saved or not. The Apex Court in Gajraj Singh (Supra) held that the proceedings under the repealed Act would be continued and concluded under the Act.
18. Justice G.P.Singh in Principles of Statutory Interpretation ( 12th Edition, 2010) at page 704 referred the judgment of Heston and Isleworth Urban District Council vs. Grout, (1897) 2 Ch 306. It reads as under :-
"Provisions contained in a Public Health Act, which entitled a local authority to give notice to the frontagers in a street to execute certain works within a certain period and empowered the local authority, in the event of default of the frontagers, to execute the work themselves and to recover the expenses from the frontagers, were construed as conferring a right on the local authority on default of the frontagers after notice, which would be preserved even in the enactment was repealed after default of the frontagers and before any work was done by the local authority" (Emphasis supplied)
19. In AIR 1992 SC 180 ( Gurcharan Singh Baldev Singh Vs. Yeshwant Singh) the Apex court opined that in a case where an application for renewal was pending under Section 58 of 1939 Act when it was repealed by the 1988 act, it would be treated to be application for enforcement of accrued right for preferential consideration for renewal and will be considered according to the provisions of the repealed Act. In AIR 1960 SC 794 (Brihan Maharashtra Syndicate Vs. Janardan) it was held that the Companies Act, 1956, which repealed the earlier Act of 1913, did not evince an intention to destroy the rights created under section 153C of the repealed Act and a proceeding pending at the time of repeal in respect thereof could be continued as if the new Act had not been passed.
20. In the light of aforesaid judgments and language employed in Section 114 of the new Act, in my view, the pending proceedings of 1894 Act are saved and therefore, it cannot be held that on commencement of new act, Section 4 notification is lapsed. Thus, argument of Shri Dudawat to this extent is rejected.
21. Section 24(2) of new Act of 2013, on which heavy reliance is placed by Shri Dudawat, has no application in the present case. A plain reading of the said provision makes it clear that it will be applicable only when an award is passed and pursuant to the award, either compensation is not paid or land is not acquired. Thus, passing of award is sine qua non for applicability of Section 24(2). In the opinion of this Court, in the present case, Section 24(1)(a) will be applicable. A bare reading of this provision will make it clear that when no award under Section 11 of 1894 Act has been made, then all provisions of this Act ( new Act) relating to determination of compensation would apply. Admittedly, in the cases of the petitioners, no award has been made. Thus, by application of Section 24(1)(a), the provisions of new Act relating to determination of compensation shall apply. As per Section 24 of the new Act, the earlier proceedings would be lapsed only when the conditions mentioned in sub-section (2) are satisfied. In the present case, in absence of passing of award, conditions for applicability of sub-section (2) are not satisfied. As analyzed above, the notification issued under Section 4 of the repealed Act cannot be treated as lapsed. The compensation for the petitioners will be determined as per the provision of new Act. The judgment of Pune Municipal Corpn. (Supra) shows that in the said case award was passed and therefore, Apex Court applied Section 24(2) of New Act. Since Award is not made in present case, said judgment is not applicable.
22. Now coming to the second contention of Shri Dudawat, wherein he stated that Section (4) notification is not in consonance with the requirement of the Act, in my opinion, the contention is not correct. As per Section 4, the respondents were required to publish the notice in the Gazette and simultaneously publish the same in two newspapers of local language. They have complied with the said provision.
23. Apart from this, the principles laid down in Radhy Shyam ( Dead) through LRs and others Vs. State of U.P. and Ors) reported in (2011) 5 SCC 553 and (Raju Sharma Vs. State of M.P.) reported in 2013 (1) M.P.L.J. 652 cannot be doubted. However, the principle flowing from the said judgments cannot be made applicable mechanically. In Raju Sharma (Supra) the minimum description of land was not there which deprived the petitioners therein to submit effective objection. In section 4 notification of the said case, it was mentioned that the list of proposed land sought to be acquired is described and enclosed. No such description was given in the notification nor the notification was pregnant with any such list. In these circumstances, this Court opined that Section 4 notification does not fulfill the minimum requirement of law and is not in consonance with the requirement of Section 4 of the Act. In Section 4 notification of present case, the Khasra number of the land is mentioned which makes it clear that the land of a particular Khasra number is sought to be acquired. All villagers preferred a representation dated 18.06.2013 raising their objection about construction of tank in their village. Thus, representation Annexure P/4 makes it clear that even before issuance of Section 4 notification, the petitioners were aware that Government intends to construct a tank in their village . Same is followed by their objection in "Jansunwai". Thereafter they preferred representation through counsel. Interestingly, Gram Panchayat and Gram Sabha passed resolutions on 17.06.2013 against proposed acquisition of land. This shows that petitioners were well aware about the action of respondents. In this background I am unable to hold that they had no knowledge about Section 4 notification and its publication in the said newspapers. In other words, by no stretch of imagination it can be said that petitioners were not aware about the proposed acquisition.
24. In (M.P. Housing Board Vs. Mohd. Safi and Ors) reported in [(1992) 2 SCC 168] also the necessary description of the land was absent. This deprived the interested person to know as to which land is being acquired and for what purpose. The Khasra number of the land and locality of the land was not mentioned in the said case, whereas, in the present case the Khasra number is mentioned. Petitioners / villagers were well aware about the intention of the Government to acquire their land. Their protests on various occasions mentioned above show that they were keeping eye on the entire action. In the aforesaid factual backdrop, I am unable to hold that petitioners were not aware about the notification of Section 4 published in the Gazette and in the local newspapers. No prejudice could be established by the petitioners in this regard. Other judgments cited by Shri Dudawat have no application in the facts and circumstances of the present case.
25. In view of aforesaid analysis, it is clear that Section 4 notification is in accordance with law. The respondents have admittedly not passed any award. Thus, as per Section 24(1)(a) of the new Act, the provisions relating to determination of compensation of new Act will apply. To this extent, petitioners are entitled to succeed. No fault could be found in the earlier notification dated 23.08.2013 and 13.12.2013.
26. Petition is disposed of in terms of aforesaid findings. No costs