Acquisitions Made Under UP Avas Adhiniyam Not Finalized Until January 1, 2014 Would Be Governed By Land Acquisition Act 2013: Allahabad HC

The Allahabad High Court observed that the acquisitions made under U.P. Avas Evam Vikash Parish Adhiniyam, 1965 being not finalized until January 1, 2014 would be governed by the Land Acquisition, Rehabilitation and Resettlement Act, 2013.

The Court observed thus in a writ petition seeking quashing of the award passed by the Additional District Magistrate (Land Acquisition).

A Division Bench of Justice Manoj Kumar Gupta and Justice Kshitij Shailendra remarked, “In the impugned award, reliance has been placed on Division Bench decision of this Court in Atul Sharma (supra), which in view of the judgment of Supreme Court in Chandra Shekhar (supra) stands impliedly overruled in so far as it holds that compensation for acquired land under the Adhiniyam would be payable under the Land Acquisition Act, 1894 even in respect of acquisition which could not be finalized until the enforcement of the said Act, i.e. 01.01.2014. The judgment in Jainul Islam (supra), in our opinion, has wrongly been interpreted in the impugned award and the said judgment, when read with the recent pronouncement made in Chandra Shekhar (supra), clarifies the legal position that the acquisitions made under the Adhiniyam which could not be finalized until coming into force of New Act, 2013, would be governed by the New Act in respect of determination of compensation.”

Advocate Shiv Kant Mishra represented the petitioner while Additional Chief Standing Counsel Rajiv Gupta represented the respondents.

Facts of the Case -

The petitioner was bhumidhar with transferable rights of the plots and a notification under Section 28 of Adhiniyam 1965 was issued in 1979. The same was followed by the notification under Section 32 of the Adhiniyam 1965 in 1982. The petitioner filed a writ petition for putting a restraint on the respondents from enforcing Grihstha Yojana No.1 Scheme in pursuance of the said notifications and to declare Sections 55(1) and 32(2) of the Adhiniyam as ultra vires of the Constitution. However, the same was dismissed and thereafter, the restoration application was also dismissed. The possession of the land was taken by the Parishad in 2002 but the award of the subject land was not made until February 27, 2024.

In the impugned award, the reference date for calculating compensation for the acquired land was taken to be the date of notification under Section 28, treating it to be at par with notification under Section 4 of Land Acquisition Act, 1894. Accordingly, the exemplar sale deeds of the period three months prior to notification under Section 28 alone were considered in determining compensation for the subject land and the market value of the acquired land was determined by applying the principle of betting system. The sole contention of the petitioner’s counsel was that after coming into force of New Act 2013, the compensation was to be determined with reference to the date of enforcement of the said Act, i.e., January 1, 2014.

The High Court in view of the facts and circumstances of the case said, “In the instant case, admittedly, the notification under Section 32 of the Adhiniyam, which is at par with Section 6 notification under LA Act, was made on 07.07.1982. However, award was not made for almost 42 years. This became possible because the timelines under the Amending Act are held to be inapplicable. Now, should the Parishad continue to delay the awards taking benefit of the non-applicability of the timelines and at the same time, also not pay compensation according to the New Act?”

The Court added that such controversy has now been settled by the Supreme Court in the case of U.P. Avas Evam Vikas Parishad v. Chandra Shekhar and Others (Civil Appeal No.3855 of 2024), which also arose out of the acquisition made under the Adhiniyam.

“It specifically considered the impact of Section 55 of Adhiniyam and held that the New Act shall be deemed to be read in place of Old Act, 1894 on the ground that the acquisition had not attained finality before 01.01.2014. … The Supreme Court, at the same time, did not make applicable the procedure relating to carrying out of Social Impact Assessment Study under the New Act and only determination of compensation was directed to be made as per the New Act”, it noted.

Furthermore, the Court noted that in this case, the acquisition proceedings were not finalized before January 1, 2014 as no award was declared by the Parishad by that time, rather in February 2024 and therefore, the Competent Authority should have determined compensation as per the provisions of the New Act, 2013 by treating the reference date as January 1, 2014 i.e., the date of enforcement of the New Act.

“As the Act, 1894, as amended from time to time, stands replaced by the New Act, 2013, we are of the considered opinion that the affected persons would be entitled to compensation as per the New Act, 2013, again to save Section 55 of the Adhiniyam from being rendered unconstitutional on the touchstone of Article 14 of the Constitution”, it enunciated.

Accordingly, the High Court allowed the writ petition, quashed the impugned award, and remitted the matter to Magistrate for determining the compensation afresh.

Cause Title- Hem Chandra v. State of U.P. and 3 Others (Neutral Citation: 2024:AHC:90522-DB)

Appearance:

Petitioner: Advocates Shiv Kant Mishra and Sanjay Kumar Mishra.

Respondents: ACSC Rajiv Gupta and Advocate Nipun Singh.

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