Deputy Collector (Land Acquisition) No. 4 Mumbai Suburban v. Ibrahim Musa Athoniya & Ors.

9.1. He would persuade me to juxtapose the provisions of Section 30 of the old LA Act, 1894, read the same and contend that Section 30 merely refers to dispute as to apportionment and it states that when the amount of compensation has been settled under Section 11, if any dispute arises as to apportionment of the same or any part thereof, or to the persons as to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. He would submit that the effect and language of the Section 64 of the new LA Act and Section 30 of the old LA Act are materially different. What he would contend is that language of Section 64 is not pari materia with the language and provisions of Section 30 of the old LA Act. He would vehemently argue that it is an undisputed position that when the present Reference was referred to this Court in the year 2015, the appropriate Authority established under Section 51 of the new LA Act was not even constituted. He would submit that the Notification for constitution of the appropriate Authority for the first time was notified in the year 2016.

9.2. Finally, he would submit that there is no provision whatsoever in the new LA Act which provides for transfer of the 7 of 30 apportionment reference to the appropriate Authority once it is already made to this Court under Section 30 of the old LA Act. He would next submit that the new LA Act does not provide for transfer of the application for Reference regarding apportionment which has been filed and registered in this Court under the provisions of section 30 of the old LA Act to the appropriate Authority under the new LA Act. He would submit that such position exists irrespective of the fact that in the present case, the Award has been declared pursuant to the date of coming into force of the new LA Act on 01.01.2014.

10. In support of his above submissions, he has heavily relied upon the following two decisions:-

(i) Pune Municipal Corporation Vs. Rajeev L. Sanghtani and Ors.1; and

(ii) Reliance Natural Resources Ltd., Mumbai and Anr. Vs.

11. In the aforesaid decision of Reliance Natural Resources Ltd., Mumbai (2nd supra), he has drawn my attention to paragraph Nos.11, 16, and 25 and would contend that under Section 24(1)(a) of the new LA Act, it is stated that when no Award under Section 11 of the old LA Act has been made, then all provisions of the new LA Act relating to determination of compensation shall apply. He would submit that the Division Bench of this Court has interpreted the words “…all

2 2019 (6) Mh.L.J. 244 8 of 30 provisions of this Act relating to determination of compensation…” in the aforesaid two decisions. He would submit that the provisions of Section 24(1)(a) clearly mean that the applicability of the provisions of the new LA Act is evidently qualified with regard to determination of compensation only and it does not mean that all provisions of the new LA Act would apply. He would submit that if it was the intention of the Legislature to require application of all provisions of the new LA Act, then the qualifying words namely, “...relating to determination of compensation...” would not have been used. He would submit that determination of compensation under Section 11 of the old LA Act is the only reference made in Section 24(1)(a) of the new LA Act. Hence, he would submit that in so far as determination of apportionment is concerned, provisions of Section 24(1)(a) of the new LA Act will not apply and determination of apportionment will have to be done by this Court in the Reference which has been made to this Court by the Deputy land Acquisition Officer under Section 30 of the old LA Act.

11.1. He would also derive assistance from the decision in the case of Pune Municipal Corporation Vs. Rajeev L. Sanghtani (1st supra) which is a Full Bench decision of this Court and would contend that the Full Bench of this Court in paragraph Nos.105 to 109 has adopted the decision of the Division Bench with respect to interpretation of 9 of 30 Section 24(1)(a) of the new LA Act.

11.2. He would contend that in that view of the matter, the objection raised by the Special Land Acquisition Officer with respect to jurisdiction of this Court to hear the present apportionment reference in the present LAR proceedings be rejected and the apportionment proceedings be determined by this Court under Section 30 of the old LA Act.

11.3. He would submit that the element of determination of compensation as contemplated under section 24(1)(a) of the new LA Act does not arise in the present case at all. He would submit that the present case concerns with apportionment of compensation which is already determined under the Award passed by the Land Acquisition Officer. He would submit that apportionment of such compensation amongst the claimants under Section 30 of the old LA Act cannot be equated with determination of compensation. Hence, he would submit that provisions of Section 24(1)(a) of the new LA Act would not apply to the present apportionment LARs.

12. PER CONTRA, Ms. Chavan, Learned Additional Government Pleader, Ms. Palsuledesai, Mr. Takke and Mr. Upadhyay, learned AGPs appearing in the LARs before me have all addressed the Court. At the outset, they would draw my attention to the provisions of Section 64 of the new LA Act and would submit that Reference to the 10 of 30 Competent Authority can be made by the Collector on receiving the written application from any person who has not accepted the Award or the Applicant may even apply to the Authority directly, if the Collector fails to make such Reference for apportionment of compensation amongst the persons interested. In this context, they would submit that provisions of Section 64 refer to “Reference” which has to be construed as all References including an apportionment Reference.

12.1. They would submit that in the present group of LARs, admittedly the statutory Award has been declared after the coming into effect of the new LA Act and therefore all these cases are covered by the provisions of Section 24(1)(a). They would submit that the words “…all provisions of this Act relating to determination of compensation…” in Section 24(1)(a) would invariably include in its ambit, an apportionment Reference wherein compensation is determined amongst the claimants, just as compensation is determined in favour of the claimants under the Award. They would submit that in view of the clear position enumerated in Section 24(1)(a) of the new LA Act, all provisions of the new LA Act relating to determination of compensation will have to be applied to these cases and as such it cannot be argued by Claimants that there is distinction between determination of compensation and apportionment. 11 of 30

12.2. They would vehemently submit that apportionment of compensation amongst various claimants / persons interested / owners is nothing but determination of title, inter se, between them and as such involves determination of the compensation payable to them. They would therefore submit that the present bunch of LARs be transferred to the Competent Authority at Aurangabad established under Section 51 of the new LA Act which is functional as on date and which is the statutory Authority determined under the new LA Act.

12.3. They have also referred to and relied upon various decisions of this Court and the Supreme Court, which for the sake of brevity, I will advert to later, since the learned Amici Curiae appointed by this Court have also referred to the same decisions extensively in their submissions.

13. Mr. Drupad Patil, learned Amicus Curiae has at the outset drawn my attention to page No.42 of the LAR and would contend that the present Award has been made by following the provisions of the new LA Act and in that view of the matter, if there is a dispute as to apportionment then provisions of Section 76 of the new LA Act would come into play. He would next submit that provisions of Section 64 conjointly readwith Section 76 of the new LA Act would clearly reflect the correct legal position relating to References which are required to be made to the Competent Authority. 12 of 30

13.1. He would submit that the provisos to Section 64 of the new LA Act are clearly missing in the provision contained in Section 30 of the old LA Act. Next he would submit that the words "...all provisions of this Act relating to the determination of compensation..." appearing in Section 24(1)(a) of new LA Act, would include provisions relating to payment, enhancement and apportionment of compensation. He would submit that in all acquisition proceedings, where Awards were not passed before enforcement of the new LA Act, the Awards can be passed only under the new LA Act. He would submit that in the light of Section 114 readwith Section 24(1)(a), of the new LA Act, acts done prior to enforcement of the new LA Act are only saved. Meaning thereby, the Notification issued under Section 4 and Declaration under Section 6 of the old LA Act are saved and therefore all the remaining steps shall be as per the provisions of the new LA Act. He would submit that the benefits under the new LA Act would be available in all the cases of land acquisition under the old LA Act, where Award has not been made, or where case is covered by proviso to Section 24 of new LA Act.

13.2. He would submit that the Full Bench of this Court in Rajeev

Act relating to the determination of compensation" appearing in Section 24(1)(a) of the new LA Act, 2013. He would submit that after 13 of 30 taking into consideration the provisions of the old LA Act and the new LA Act, the Hon'ble Court has made following observations:-

(i) The words "all provisions" would not only include

(ii) The litigant has vested right of action but has no vested right to insist for particular forum. If reenacted legislation provides new forum, then the right of action accrued under the old LA Act, can only be prosecuted before the new forum.

(iii) Right to make reference is implicit in the right to receive compensation. The right to make Reference survives the Award and draws sustainance from right to receive compensation. Passing of award merely provides cause of action for making Reference. However, the source of right to make a reference is the very right to receive compensation for compulsory acquisition.

(iv) Change in forum brought about by Section 64 of the new LA Act does not take away substantive or vested right. If subsequent legislation provides a new forum, before which the right of action can be pursued, the litigant has to enforce the remedy before the new forum created under the reenacted legislation and such intendment of the new LA Act to change the forum is explicitly clear from the provisions of Chapter VIII of the new LA Act.

(v) Forum constituted under Section 51 of the new LA Act has all the trappings of a judicial forum. A person who is or has been a District Judge or legal practitioner qualified to become a District Judge, can only be appointed as the presiding officer of the Competent Authority.

(vi) Section 60 (1) of the new LA Act confers upon the

Authority the requisite powers, vested in a Civil Court under the Code of Civil Procedure, 1908, in the matter of adjudication of the Reference. However, the said Authority is not bound by the provisions of the Code but shall be guided by the principles of natural justice. 14 of 30 The fact that the Authority is not bound to follow the procedure laid down in the Code, does not necessarily imply that its adjudication lacks the elements of judicial determination.

(vii) In a case of land acquisition initiated under the provisions of the old LA Act, where an Award is to be made after the enforcement of the new LA Act such an award shall be made under the provisions of the new LA Act and any claim, objecting to the Award, shall be referred for determination to the Authority constituted under the new LA Act and not to the Court under the old LA Act. The correctness of the view recorded in the case of Jairam Gangaram Burke (supra) is affirmed. (viii)In a case of land acquisition proceedings initiated under the provisions of the old LA Act, where an Award has been rendered under Section 11 of the old LA Act, after the enforcement of the new LA Act i.e. on 01.01.2014, any claim/application, objecting to the award shall be referred for determination to the Authority constituted under Section 51 of the new LA Act and not to the Court under the provisions of Sections 18 / 30 of the old LA Act.

(ix) In a case of land acquisition proceedings initiated under the provisions of the old LA Act, where no Award has been made before the enforcement of the new LA Act, the Award shall be made under the provisions of the new LA Act.

13.3. Next, he would submit that the Division Bench of this Court in the case of Jairam Gangaram Burke and Ors. (supra) has held as under:- "Reading Section 24 (1)(a) and (b) of Act of 2013, it is abundantly clear that it is only in those cases where Award under Section 11 of the Land Acquisition Act, 1894 is passed then the proceedings would continue under the Act of 1894 as if the said Act has not been repealed. It thereby suggests that in case the Award has not been passed under Section 11 of the Act of 1894, then all provisions of the Act of 2013 relating to determination of compensation and passing of Award shall apply. The applicability of provisions of the Act of 1894 would continue to apply only if the Award under Section 11 of the Act of 1894 is passed and not otherwise. If prior to the repeal of Act 15 of 30 of 1894, the Award is not passed, then the proceedings completed till the stage of repeal of the Act of 1894 are saved. However, further proceeding i.e., determination of compensation and passing of Award will have to be under the Act of 2013. The said interpretation would be in consonance and in tune with reading Sections 24 and 114 of the Act of 2013 harmoniously. The legislative intent under Clauses (a) and (b) of sub- section (1) of Section 24 of the Act of 2013 is abundantly clear. Any other interpretation would be doing violence to the provisions as engrafted under Sections 24 and 114 of the Act of 2013."

13.4. He would submit that the Apex Court in the case of Aligarh Development Authority Vs. Megh Singh and Ors.[3] has observed that if an Award has not been passed under old LA Act, the land acquisition proceedings would continue but with a rider that the Award will have to be determined under the provisions of the Act of 2013 (i.e. the new LA Act).

13.5. He would submit that in one of the recent judgment in the case of Executive Engineer, Gosikhurd Project Ambadi, Bhandara, Maharashtra Vidarbha Irrigation Development Corporation Vs. Mahesh and Ors.4, the Division Bench while examining the purport of the words "...all provisions of this Act relating to the determination of compensation..." has interpreted the expression "relating to". He has drawn my attention to the relevant paragraphs of said judgment which read as under and the same are reproduced verbatim:- “(10)Section 24(1) deals with two specific situations where the land acquisition proceedings were initiated before the repeal of the 1894 Act, namely; (i) where an award has been made, and (ii)

16 of 30 where an award has not been made. As per clause (b) to Section 24 (1) where an award under Section 11 of the 1894 Act has been made, the proceedings would continue under the repealed 1894 Act, notwithstanding its repeal. In such cases, the 2013 Act will not apply. Clause (b) to Section 24 (1) is not applicable in the case at hand as it is admitted that no award was made on or before 31.12.2013. (11) In the present case, clause (a) to Section 24 (1) of the 2013 Act would apply as the land acquisition proceedings initiated under the 1894 Act had not culminated into an award till the repeal of the 1894 Act. Section 24 (1)(a) partly nullifies the legal effect of savings under Section 6 of the General Clauses Act as it hybridizes application of the 1894 Act and the 2013 Act. While preserving validity of the acquisition proceedings by issuing declarations under the 1894 Act, it states that all provisions for determination of compensation under the 2013 Act shall apply. The section consciously saves the legal effect of the notifications issued under Section 4 and/or Section 6 of the 1894 Act and obviates the necessity to issue a fresh notification under the 2013 Act. This "perseveration of the determination date" for computation of compensation for the awards made under Section 24 (1)(a) of the 2013 Act is a thought through legislative invocation that curtails time delays and cost escalation of infrastructure projects, as well as checks the post acquisition notification malpractices, and at the same time ensures that the landowners are entitled to the benefit of the enhanced compensation as per the 2013 Act.

13.6. The said expression[sic]when used in legislation has to be construed to give effect to the legislative intent when required and necessary by giving an expansive and wider meaning. Given this trend in interpretation, the words "all provisions of this Act relating to the determination of compensation"must not be imputed a restricted understanding of the word 'relating' only to the substantial provisions on calculation of compensation, that is, Sections 26 to 30 of the 2013 Act. Rather the expression should be given an expansive meaning so as to include the provision of limitation period for calculation of compensation, that is, Section 25 of the 2013 Act.

13.7. He would submit that the new LA Act is enacted with an 17 of 30 object of providing a beneficial legislation. Clause No.18 of the statement of object and reasons of the new LA Act reads as under:-

13.8. He would submit that the Apex Court in the case of Indore Development Authority (supra) has taken into consideration the said Clause No. 18. After referring to the said clause, the Apex Court has held that, "The option of taking possession (of acquired land) upon making of an award, the new law would be available in the cases of land acquisition under the Act of 1894 where award has not been made, or possession of land has not been taken." He would submit that in paragraph No.23 of the said decision, the Apex Court has recorded submissions of the learned Solicitor General that "Where Section 24(1)(a) saves acquisition proceedings, where awards were not made before advent of Act of 2013, by declaring that the award would be made under that Act and compensation would be paid in accordance with its provisions." He would submit that the words 'that' and 'its' are referable to the said new Act of 2013.

13.9. Next he would draw my attention to the decision in the case of G. H. Grant Vs. State of Bihar[5] and would submit that in the said decision the Supreme Court has highlighted distinction between

18 of 30 References provided under Section 18(1) and Section 30 of the old LA Act which is relevant to understand the issue in the present case:-

(i) Section 18 Application must be made within a prescribed period whereas there is no such period prescribed time period under Section 30. Powers exercisable by the Collector under Section 18 (1) and Section 30 are distinct and are invoked in contingencies which do not overlap each other.

(ii) A person, shown in the part of the Award which relates to apportionment of compensation and who was present or on whom a notice under Section 12 (2) is served, must, if he does not accept the Award, apply to the Collector seeking reference under Section 18 (1). Such Application must be filed within the time prescribed under Section 18 (2). But a person who has not appeared in acquisition proceedings or not served with the notice for raising a dispute regarding apportionment, can apply to the Collector for reference under Section 30 for determination of his right to compensation, which may have existed before the award or which may have devolved upon him after the award. 19 of 30

(iii) Under Section 18, Collector is bound to make a

Reference on a Petition by a person interested, whereas the Collector is not under any obligation to make a Reference under Section 30. He may relegate the person to agitate the dispute in a suit and pay the compensation in the manner declared in his award.

13.10. To conclude his submissions, he would submit that in cases where Land Acquisition proceedings are initiated under the Old Act, award is passed till enforcement of proceedings are under the new Act, then the award is to be passed under the new Act and necessary proceedings under the new Act would therefore necessarily follow.

14. Mr. Dormaan J. Dalal, learned Amicus Curiae, has supported the submissions made by Mr. Patil and addressed the Court independently on certain issues. He would submit that the only point of contention advanced by Claimants is on the basis of the decision of the Division Bench of this Court in the case of Reliance Natural Resources Ltd., Mumbai (2nd supra). He would submit that the decision of the Full Bench in the case of Rajeev L. Sanghtani (1st supra) has been considered and distinguished in later decisions which he would like to place before the Court. He would submit that the Award in the present Reference appended at Exhibit “B” page Nos.16 to 49 of the Reference states that it is passed under Section 11 of the 20 of 30 old LA Act and Sections 24 to 30 of the new LA Act. This Award is passed pursuant to coming into force of the new LA Act on 01.01.2014, even though the statutory Notifications were issued prior thereto. He would submit that the new LA Act received assent of the President of India on 26.09.2013 and it was brought into force on 01.01.2014 vide SO 3729 dated 19.12.2013. He would submit that the Award under Section 11 in the present Reference was passed on 07.06.2014, statutory Notice under Section 12(2) was issued on 07.06.2014 and possession of the acquired lands was taken on 21.06.2014. Thereafter between 21.06.2014 and 01.09.2014, persons interested raised dispute regarding apportionment of compensation awarded on various grounds.

14.1. He would submit that in order to address the controversy with respect to interpretation of the provisions of Section 24(1)(a) of the new LA Act in the present case, the decision of the Full Bench of this Court in the case of Rajiv L. Sanghtani (1st supra) directly answers the question in that regard. He would submit that the genesis of the reference of the Full Bench decision can be traced to a cleavage of judicial opinions by two co-ordinate benches (Division Benches) of this Court in the case of Jairam Gangaram Burke and Ors. Vs. State of Maharashtra[6] and Ashok Narayan Lande Vs State of Maharashtra through SLAO[7]. He would submit that in the case of Jairam Gangaram 6 2017 (5) Mh.L.J. 354

21 of 30 Burke (3rd supra), the Division Bench of this Court held that prior to the repeal of the old LA Act, the Award is not passed, then the proceedings completed till the stage of repeal of the old LA Act are saved and the Award will have to be passed under the new LA Act. Whereas, in the case of Ashok Narayan Lande (4th supra), the Division Bench of this Court while dealing with a challenge to the Award passed on 24.09.2015 under the old LA Act saw that compensation was calculated under Section 24(1)(a) of the new LA Act. The Division Bench of this Court rejected the argument of the Petitioners that the Award had to be passed under the new LA Act and upheld the position that the Award could still be passed under the old LA Act even after the new LA Act has come into force, but compensation payable will be calculated under the new LA Act. It is seen that when the decision in the case of Ashok Narayan Lande (4th supra) was passed, the decision in the case of Jairam Gangaram Burke (3rd supra) was not brought to the notice of the Court and it was this diversion of opinion on whether in pending acquisition proceeding initiated under the old LA Act prior to 01.01.2014, the Award had to be passed under the old LA Act or the new LA Act led to the constitution of the Full Bench. He would submit that the Full Bench reformulated the points for consideration as follows:- “(I) In any case of land acquisition initiated under the old Act, whether reference in respect of an award, passed after the commencement of the Act, shall be made to the Court under 22 of 30 section 18 of the old Act or the Authority under Section 64 of the Act, 2013?

(II) Whether, in any case of land acquisition proceedings initiated under the old Act, award has to be made under section 11 of the old Act or under the provisions of the Act,2013?”

14.2. The reasoning and finding given by the Full Bench on the aforementioned point No.1 for consideration is contained in paragraph Nos.52, 53 and 71 to 73 and 87 of the decision of the Full Bench. He would submit that on a conjoint reading of the decision of the Full Bench, it is amply clear that Section 64 of the new LA Act specifically empowers the Competent Authority to decide apportionment of compensation amongst interested persons. Hence, he would submit that this Court would no longer have the jurisdiction or authority to decide the apportionment claim Reference.

14.3. On the aspect of whether the opinion of the Full Bench on the aforesaid points of determination is still a good law, the learned Amicus Curiae has referred to and relied upon the decision of the Constitution Bench of the Supreme Court in case of Indore Development Authority Vs. Manoharlal and Ors.[8] and would submit that on reading the decision of the Supreme Court, namely paragraph Nos. 86, 96, 123, 175, 187, 190, 191, and 366.1, it is clear that the opinion of the Full Bench is not diluted and as such it is good law.

14.4. He would submit that in another decision of the Supreme

23 of 30 Court in the case of Executive Engineer Vs. Mahesh and Ors.9, the Supreme Court has while examining the phrase contained in Section 24(1)(a) of the new LA Act relating to “...all the provisions relating to determination of compensation…” has held that Section 24 is followed by Section 25, which is a rule of procedure and a part of fasciculus of all the provisions from Sections 25 to 30 “relating to determination of compensation” and thus will encompass all those provisions.

14.5. He has next drawn my attention to the decision in the case of Haryana State Industrial and Infrastructure Development Corporation Vs. Deepak Aggarwal and Ors.10 and more specifically to paragraph Nos.42 and 43 of the said decision wherein the Supreme Court has interpreted Section 24(1)(a) and opined as under:-

17. It is true that a claimant cannot have a vested right to insist on the apportionment references to be decided by this Court, when the intention of the Legislature is clear. Right to make a Reference is 27 of 30 implicit in the Right to receive compensation. The Competent Authority is established under the provisions of Section 51 of the new LA Act and the decision of the Competent Authority is appealable in Appeal before this Court under Section 74 of the new LA Act. In that view of the matter, I am inclined to accept the submissions made by both the learned Amici Curiae appointed by this Court on the basis of the decisions referred to and relied upon by them which are enumerated hereinabove. This Court cannot ascribe a restricted meaning to the words “...all the provisions relating to the determination of compensation...” as appearing in Section 24(1)(a) of the new LA Act as argued by the Claimants.

18. In view of the above, it is directed that all present LARs alongwith the Interim Applications which have been filed therein shall stand transferred to the record and file of the Competent Authority established under Section 51 of the new LA Act for adjudication of the apportionment references. Considering the delay and timeline involved in the present cases and the fact that these references were all filed between 2015 and 2018, the Competent Authority is requested by this Court to adjudicate and determine all References as expeditiously as possible and in any event within a period of one year from today by following the due process of law and strictly in accordance with law after hearing all parties concerned. 28 of 30

19. At the request of the learned Government Pleader, it is directed that the amount of compensation deposited by the Applicant - Deputy Land Acquisition Officer in each of the present References (seven in number) for apportionment be transferred to the concerned Competent Authority alongwith all accrued interest thereon alongwith a copy of this judgment.

20. For the purpose of giving effect to this judgment and order, if any fixed deposits are required to be broken, the learned Prothonotary and Senior Master of this Court is permitted to break the same so as to ensure that the amounts deposited in this Court are transferred in the respective References to the Competent Authority within a period of 4 weeks from today.

21. With the above directions, all seven above LARs stand disposed from the record and file of this Court and shall stand transferred to the record and file of the Competent Authority established under Section 51 of the new LA Act. This Court genuinely appreciates the assistance rendered by the learned amici curie Mr. Patil ably assisted by Mr. Namit Pansare and Mr. Dormaan Dalal, learned Advocates of this Court.

22. All concerned parties are directed to act on an authenticated copy of this judgment and order to avoid any further delay. 29 of 30

23. In view of the above directions, all the captioned LARs are disposed. All pending Chamber Summons and Interim Applications are disposed. Ajay [ MILIND N. JADHAV, J. ]