Gujarat High CourtTarsangji Manglaji Thakor & 3 vs State Of Gujarat & 4 on 17 February, 2016Author:Akil KureshiBench:Akil Kureshi,Z.K.SaiyedC/SCA/18370/2015                                                         ORDER




                         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           SPECIAL CIVIL APPLICATION NO. 18370 of 2015

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                        TARSANGJI MANGLAJI THAKOR & 3....Petitioner(s)
                                             Versus
                            STATE OF GUJARAT & 4....Respondent(s)
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         Appearance:
         MR ABHIMANYU RATHOD, ADVOCATE for the Petitioner(s) No. 1 - 4
         MR MEHUL H RATHOD, ADVOCATE for the Petitioner(s) No. 1 - 4
         MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 5
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              CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
                     and
                     HONOURABLE MR.JUSTICE Z.K.SAIYED

                                               Date : 17/02/2016


                   ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)1.            Petitioners have prayed for a declaration that

         the     acquisition            of     their          agriculture             lands         bearing

         revenue survey No.85 of village Akhol Moti, Tal. Deesa,

         Dist. Banaskantha has lapsed by virtue of Sub-section (2)

         ofSection     24of    the     Right         to     Fair       Compensation                 and

         Transparency         in        Land     Acquisition,                Rehabilitation                   and

         Resettlement Act, 2013 ("the Act" for short).                                          They have

         also prayed for a consequential direction to the State

         authorities        to     release        such         land       from       acquisition               by

         setting aside communication dated 05.03.2015.2.            Brief facts are as under:-2.1           Petitioners are owners of the said land.                                               ThePage 1 of 8HC-NIC                                          Page 1 of 8         Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                                      ORDERGovernment        issued       notification underSection 4of the

         Land Acquisition Act, 1894 on 13.05.2000 for acquiring

         such land along with other neighbouring lands for setting

         up a check post for the Sales Tax Department of the State

         Government.            Notification underSection 6of the Land

         Acquisition Act, 1894 was issued on 18.08.2000.                                              Award

         was passed by the Land Acquisition Officer underSection

         11of        the     Act     on      19.02.2000.                    Compensation                 of

         Rs.1,41,162/- was awarded to the petitioner.                                           However,

         case of the petitioners is that such compensation was

         never       paid.              Petitioners             further             contend             that

         subsequently,           due     to    internal         reasons,           the       Sales          Tax

         Department took a decision not to set up check post at

         the     acquired        land     site,        but      shifted           it      to      another

         village-Gundari,               Tal.    Dantiwada,               which         would         be       a

         composite check post for the Sales Tax as well as RTO

         authorities.           This new proposed site is at a distance of

         about      41    km.    from     the     land       in      question.               The      Joint

         Commissioner           of     Commercial Tax under his letter dated

         05.03.2015 to the Deputy Collector has conveyed that such

         land cannot be restored to the original land owners as

         the same is required for the purpose of construction of

         residential facility for the officials /employees serving

         at the check post of the Sales Tax Department.                                           At that

         stage, the petitioners filed this petition and prayed for

         the reliefs noted above.Page 2 of 8HC-NIC                                         Page 2 of 8        Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                                      ORDER3.              Case of the petitioners is simple.                                  They point

         out   that       the       land      was     acquired           for       the     purpose           of

         construction          of       sales    tax     check          post.         However,           such

         proposal was abandoned.                    The check post has been shifted

         to a site which is 41 km away.                            The Department wishes to

         use    the       same      land        for     construction               of      residential

         quarters       for     the      employees            at   such      check        post,        which

         obviously        would         be    at a distance of 41 km. from the

         residential site.4.              In legal terms, contentions of the petitioners

         are that compensation for the land in question was never

         paid to the petitioners.                     The say of the Government that

         the same was deposited in the Government Treasury, would

         not    be     sufficient             compliance           of      legal        requirements.

         Petitioners further contend that even the possession of

         the land was never taken.                     Mere revenue entries would not

         indicate taking over possession through lawful means.5.              On the other hand, the Government opposes the

         petition contending that the land, once acquired, can be

         used for any other public purpose and at any rate, cannot

         be returned to the land owner.                             Regarding applicability

         of    Sub-section              (2)    ofSection         24of     the       Act,          the

         Government contends that the compensation was deposited

         in the Government Treasury.                      When the petitioners did notPage 3 of 8HC-NIC                                          Page 3 of 8        Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                                       ORDERcome     forward       to     claim        such         amount,          this        would          be

         sufficient compliance of the term "paid" used in the said

         Section.         Regarding          compensation,              the      respondents,                in

         addition to relying on the revenue entries, have produced

         the    possession        receipt          dated         28.03.2003          which        records

         handing over of the possession of the land by the Circle

         Officer,        Deesa        to     the        officer          of      the       Sales            Tax

         Department.6.            Having heard learned Counsel for the parties

         and having perused documents on record, we do not find

         any evidence showing actual physical possession of the

         lad     being     taken       over        by    the       Government             authorities

         pursuant to the acquisition proceedings.                                  Mere possession

         receipt issued by the Circle Officer in favour of the

         Sales     Tax     Department          would         not        establish             that          the

         possession of the land was actually taken over by the

         acquiring       authorities from the petitioners.                                     Had this

         been    the     sole    ground,        we      would        have        probe       the      issue

         further and try to ascertain whether there is any other

         material      found      with       the     Government             to     suggest          actual

         taking over of the possession of the land, particularly

         in view of the revenue entries posted way back in the

         year    2004,      under          which     the         name      of     the       Sales           Tax

         Department had been entered as the occupant.7.            However, issue of far greater significance isPage 4 of 8HC-NIC                                        Page 4 of 8         Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                                        ORDERthat   of      payment         of        possession           to      the       petitioners.

         Admitted facts are that after passing the award underSection      11by      the        Land          Acquisition           Officer,               the

         compensation          was          not       actually          paid         over         to         the

         petitioners.          Instead, claiming that the petitioners did

         not come forward to receive the same, the authorities

         have   deposited             the    compensation               with       the       Government

         Treasury.         The Supreme Court in case ofPune Municipal

         Corporation       &    Anr.        Vs.      Harakchand           Misirimal           Solanki         &

         Ors., reported in (2014) 3 SCC, page No.183 has held that

         expression "paid" inSection 24(2)would include actual

         payment     of     compensation               to       the    claimants           or      deposit

         thereof     in     Court.            It       is       clarified         that       a     literal

         construction of term "paid" would not be justified.                                                 In

         this   context,              the     Court             also    observed            that         mere

         depositing the compensation in Government Treasury upon

         the land owners not receiving the compensation would not

         be sufficient compliance.                      It was observed as under:-"17. While enactingSection 24(2), Parliament
                       definitely had in its viewSection 31of the
                       1894 Act. From that one thing is clear        that
                       it did not intend to equate the word "paid" to
                       "offered" or "tendered". But at the same time,
                       we do not think that by use of the            word
                       "paid",   Parliament    intended     receipt    of
                       compensation    by     the     landowners/persons
                       interested. In our view, it is not appropriate
                       to   give   a  literal    construction    to   the
                       expression "paid" used in this sub-section
                       (sub-section (2) ofSection 24). If a literal
                       construction were   to    be   given,    then   it
                       would amount to ignoring procedure, mode andPage 5 of 8HC-NIC                                            Page 5 of 8      Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                            ORDERmanner of deposit provided inSection 31(2)of
             the 1894 Act in the event of happening of
             any     of    the     contingencies contemplated
             therein which may prevent the     Collector from
             making actual payment of compensation. We are
             of    the    view,    therefore, that for     the
             purposes ofSection 24(2), the compensation
             shall be regarded as "paid" if the compensation
             has been offered    to   the   person  interested
             and such compensation has been deposited in the
             court where reference underSection 18can be
             made on happening of any of the contingencies
             contemplated    underSection 31(2)of the 1894
             Act. In other words, the compensation may
             be said to have been "paid" within the meaning
             ofSection 24(2)when the Collector (or for
             that matter Land Acquisition Officer) has
             discharged his obligation and deposited the
             amount of compensation in court and made that
             amount available to the interested person to be
             dealt with as provided inSections 32and33.18. 1894     Act    being   an    expropriatory
             legislation has to be strictly followed. The
             procedure, mode and manner for      payment of
             compensation are prescribed in Part V (Sections
             31-34) of the 1894 Act.    The Collector, with
             regard to the payment of compensation, can
             only act in the manner so provided. It is
             settled proposition of law (classic statement
             of Lord Roche in Nazir Ahmad[1]) that where a
             power is given to do a certain      thing in a
             certain way, the thing must be done in that way
             or not at all. Other methods of performance
             are necessarily forbidden.19. Now,    this   is   admitted   position   that
             award   was    made      on 31.01.2008.    Notices
             were issued to the landowners         to   receive
             the compensation and since they did not receive
             the compensation,     the   amount (Rs.27 crores)
             was deposited in the government treasury. Can
             it be    said that deposit of the amount of
             compensation in    the    government   treasury is
             equivalent to the amount of compensation paid
             to the landowners/persons interested? We do not
             think so. In a comparatively recent decision,
             this Court in Agnelo Santimano Fernandes[2],
             relying upon the earlier decision in Prem Nath
             Kapur[3], has held that the deposit       of   the
             amount of    the compensation in     the   state'sPage 6 of 8HC-NIC                      Page 6 of 8      Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                                       ORDERrevenue account is of no avail and the
                       liability of the state to pay interest subsists
                       till the amount has not been deposited in
                       court.20. From the above, it is clear that the
                       award    pertaining    to   the subject land has
                       been made by the      Special   Land    Acquisition
                       Officer    more than five years prior to the
                       commencement of the 2013 Act.         It is also
                       admitted position that compensation so awarded
                       has     neither     been     paid    to         the
                       landowners/persons interested nor deposited in
                       the   court.     The    deposit   of compensation
                       amount in the government treasury is of no
                       avail and cannot     be held to    be    equivalent
                       to compensation paid to the landowners/persons
                       interested.    We have, therefore, no hesitation
                       in holding that the subject land acquisition
                       proceedings shall be deemed to have          lapsed
                       underSection 24(2)of the 2013 Act."8.            This      view        has    been         followed        by      the      Supreme

         Court in several later decisions.                             This Court has also,

         following such judgments of the Supreme Court, declared

         lapsing of land acquisition when it is found that instead

         of either paying the compensation or depositing before

         the Court when the claimants did not receive it, the

         compensation          was       deposited               before          the        Government

         Treasury.9.            Under the circumstances, petition is allowed.

         It   is   declared           that    the      acquisition             proceedings              with

         respect to the land in question have lapsed by virtue ofSection 24(2)of the Act.(AKIL KURESHI, J.)Page 7 of 8HC-NIC                                         Page 7 of 8        Created On Fri Feb 19 03:06:04 IST 2016C/SCA/18370/2015                                            ORDER(Z.K.SAIYED, J.)
         SHITOLEPage 8 of 8HC-NIC                                Page 8 of 8      Created On Fri Feb 19 03:06:04 IST 2016