Acquisition made under the UP Avas Vikas Act but not finalized on or before January 1, 2014 is governed by the Land Acquisition Act, 2013: Allahabad HC

The Allahabad High Court held that acquisitions made under the UP Avas Evam Vikash Parish Adhiniyam Act, 1965 before the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which were not finalized by January 1, 2014, will be regulated by the 2013 Act regarding the determination of compensation for landowners.

Section 55 of the UP Avas Evam Vikash Adhiniyam, 1965, empowers the Board under that provision to acquire any land for any purpose under the Adhiniyam in accordance with the provisions of the Land Acquisition Act, 1894.

Article 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 states that if no land acquisition decision is made under the existing Act, the provisions of the 2013 Act shall apply to determine the amount of compensation. .

A bench consisting of Justice Manoj Kumar Gupta AND Judge Kshitij Shailendra he referred to the judgment of the Supreme Court with ref. no UP Avas Ewam Vikas Parishad v. Jainul Islam and another to hold

“In the case of Jainul Islam (supra), a Large Bench of the Supreme Court held that the favorable provisions of the Amendment Act, 1984 for fixation of compensation would apply to acquisitions made under Adhiniyam to save them from arbitrariness and discrimination. As the 1894 Act, as amended from time to time, is replaced by the New Act 2013, we consider that affected persons will be entitled to compensation under the New Act 2013, again subject to s. 55 Adhiniyam before it was declared unconstitutional under Art. 14 of the Constitution.”

Factual background

The petitioner was a bhumidhar having alienable rights in the land in question. in 1979, a notification under Section 28 of the UP Avas Evam Vikash Parish Adhiniyam, 1965 and thereafter a notification under Section 32 of the Adhiniyam dated July 7, 1982 for acquisition of the land of the petitioner.

The Parishad took possession of the land in 2002, but the judgment was passed in February 2024, basing the compensation on the market value as at the date of the notification issued in 1979, treating it as being in accordance with the notification under Art. 4 of the Land Acquisition Act, 1894.

Counsel for the applicant submitted that since no judgment had been passed by the time the Land Acquisition Act 2013 came into force, the compensation should be determined by applying the provisions of the 2013 Act.

On the contrary, Parishad’s representative argued that under Art. 55 of the Adhiniyam Act, the provisions of the Land Acquisition Act, 1894 are applicable and the provisions of the 2013 Act have not been incorporated into the UP Avas Evam Vikash Adhiniyam, 1965.

Supreme Court judgment

The Court noted that in 1984 amendments were made to the Land Acquisition Act 1894, setting a time frame to address unusual delays in the acquisition process which led to landowners being offered unrealistic compensation. We noted that measures to compensate for excessive delays were also added.

The Tribunal commented UP Avas Ewam Vikas Parishad v. Jainul Islam and anotherwherein a three-judge bench of the Supreme Court held that for the purpose of determining compensation for acquisition under Adhiniyam, the amendment made in 1984 to the provisions of the Land Acquisition Act, 1894 would be applicable.

The Apex Court held that “on the proper construction of art. 55 Adhiniyam, it must be held that by incorporating the provisions of the LA Act into the Adhiniyam, it was the intention of the legislature that the amendments in the LA Act relating to the determination and payment of compensation should apply to the acquisition of land for the purposes of the Adhiniyam. This means that the changes made to the LA by the 1984 Act relating to the determination and payment of compensation, namely section 23(1) 1-A and section 23 para. 2 and art. 28 as amended by the 1984 Act would apply to acquisitions for Adhiniyam purposes under section 55 of the Adhiniyam“

Further on, in Union of India and others v Tarsem Singh and others, the Supreme Court found that purchases made under the National Roads Act and other acts, including the Land Acquisition Act, cannot be treated differently. It was held that land owners could not be differentiated if the state took over land under different laws.

The High Court examined Art. 114 of the Act of 2013, repealing the Act of 1894, and Art. 6 of the General Clauses Act 1897, which provides that the Act cannot be repealedaffect any rights, privileges, obligations or liabilities acquired, accrued or incurred under the instrument so repealed” The Tribunal stated that the common reading of Art. 114 and art. 6, as mentioned above, saves the acquisition as well as the right of the petitioner to receive compensation for the land acquired by the Parishad.

Noting that the rate of compensation set out in the 2013 Act is significantly higher compared to the 1894 Act, the Court found that the mandate under Art. 24 section 1 letter a) regarding the provision of compensation in accordance with the new Act in the event that the award has not been granted is intended to protect the interests of the persons concerned.

The Court relied on its earlier order from 2010 Pyare Lal and 24 others v. Union of India and 4 otherswherein it was held that the proper date for determining compensation for any acquisition made under the 1894 Act, where the award had not been made by the time the 2013 Act came into force, would be the 1st^street January 2014.

The Court noted that the judgment was delayed by the Parishad for almost 42 years. The question asked by the Court was: “Should the Parish continue to delay the awarding of prizes, taking advantage of the non-application of deadlines, and at the same time not pay compensation in accordance with the New Act?”

The Tribunal cited UP Avas Evam Vikas Parishad v. Chandra Shekhar and others wherein the Supreme Court held that since compensation had not been paid to the land owners, the acquisition made under the Adhiniyam was not completed before January 1, 2014. Therefore, the Apex Court directed the determination of compensation in accordance with the provisions of the 2013 Act by applying s. 24 section 1 of the Right to Fair Compensation and Transparency in Land Acquisition, Reclamation and Resettlement Act of 2013.

The court found that because compensation was awarded on February 27, 2024, compensation should be determined under the 2013 Act and not under the old 1894 Act.

Accordingly, the application for an injunction was granted and the case was remitted back to the Authority for reassessment of the amount of compensation.

Case title: Hem Chandra v. State of UP and 3 others (WRITING – C No. – 12796 of 2024)

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