Land acquisition
Ravi Chand Garg
(Querist) 21 March 2014
This query is : Resolved
A very important clause in the Draft Rules dated 14.10.13 was clause 23 for clarifications on Retrospective operation of the Act, and is reproduced below:-
.
Land Acquisition Act 2013 has been Notified and is in force from 1.1.14
This act contains a Section 24 ( Reproduced below) on the retrospective application of the act. As per section 24 (2) highlighted in yellow
Retrospective Application of the Act
Section 24 (1) Not withstanding 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 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such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.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.
But a view has been expressed that Land Acquiring Authority may take the plea that since there was a stay on Dispossession ( which is the case in most cases under litigation) they could take possession and so could not pay compensation. This Point was also clarified in clause 24 (3) of The Draft Rules for Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act were put in public domain on 14.10.13 for comments and discussions which is reproduced below. According to this the period of litigation shall also be included in calculating the period of 5 years
23. Retrospective operation ( Draft Rules dated 14.10.13)
(1) The retrospective operation of the Act as prescribed in Section 24 of the Act will be deemed to have come into operation on and from the date on which the new law is Notified in the Official Gazette.
(2) Where acquisitions have been initiated under the Land Acquisition Act 1894 and the parties under acquisition have either not accepted compensation or have not released the physical possession of the land but do not qualify for the benefits of the Act as given in sub-section 2 of section 24 due to the fact that they have remained pending for a period of less than five years then the new law shall apply only if the situation of pendency continues unchanged for a period that equals to or exceeds five years;
(3) Where the possession has not been taken due to the fact that the acquisition process has been challenged in a court of law then the period spent under litigation shall also be counted for the purpose of determining whether the period of five years has been crossed or not;
The Govt published Gazette notification dated 31.12.13 of Draft Rules for Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act
This clause along with many other clauses has not been included in Gazette notification dated 31.12.13 of Draft Rules for Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act.
I contacted some officials in the Ministry of Rural Development, and I was informed that Draft Rules of 14.10. 2013 have been Dropped and will not be persued by the Govt.
Supreme Court has given two judgments upholding the operation of the retrospective clause. But in one case
Pune Municipal Corporation & Anr. … Appellants
Versus
Harakchand Misirimal Solanki & Ors. … Respondents
Judgment dated 24.1.14
Pune municipal council had taken possession but not paid compensation.
In the other case
Petitioner BHARAT KUMAR
Vs.
Respondent STATE OF HARYANA & ANR. Judgment dated 4.2.14
it is not clear from the Judgment Whether there was a stay of Dispossession
I have two cases pending in court where there is stay of dispassion and compensation has not been paid.
I want expert opinion whether in case where there is stay of dispossession and compensation has not been paid and more than 5 years have passed from date of Award, the acquisition is deemed to have lapsed.
Ravi Chand Gag
Saurendra Rautray
(Expert) 02 June 2015
Hi,
Kindly see if the award in your case has been awarded prior to 1.1.2009.
For better understanding i need to know the exact wordings of the court where there was a stay order. After that only i can give you opinion if 24 (2) of the new land act will apply or not.
Regards
Saurendra Rautray
Advocate
09437008255
Delhi : B3/18, Vasant Vihar, New Delhi - 110 057
T : +91 - 11 - 46113964 / 46552244
E : mail@rautray.com
Website- www.rautray.com
