Articles

Article Title: APPLICABILITY OF S. 24 (2) OF THE RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REH
Date of Article: January 1, 1970

APPLICABILITY OF S. 24 (2) OF THE RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION  AND RESETTLEMENT ACT 2013 TO LAND ACQUISITION VIA THE MRTP ACT[1]—NEED FOR RECONSIDERATION OF GIRNAR (3)[2]

Dr Arun Kumar Barthakur[3]

         Does the beneficial provision of section 24(2) of The Right To Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 (for short the 2013 Act) apply to acquisition of land via section 126(2) of the MRTP Act, as amended by Maharashtra Regional and Town Planning (Amendment) Act, 2015? Section 24(2) of the 2013 Act provides that notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 Act (for short 1894 Act), where an award under 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. Relying on Girnar (3) a Full Bench of three learned Judges of the Bombay High Court in Mehtab Laiq Ahmed Shaikh v. State of Maharashtra[4] ruled that section 24(2) of the 2013 Act is not applicable to acquisition proceedings initiated in terms of sections 125 to 127 of the MRTP Act.

         In Girnar (3), a five-Judge Constitution Bench of the Apex Court was called upon to answer the question referred to it whether the provisions of Section 11-A of the 1894 Act providing for lapsing of acquisition applies to the MRTP Act. Swatanter Kumar, J., speaking for the Court, held that the MRTP Act is a complete code in itself and the provisions of the 1894 Act were incorporated therein and therefore section 11-A of the 1894 Act does not apply to acquisition under the MRTP Act. The Court further held that unlike in Section 16 of the 1894 Act vesting happens even at the initial stage under Section 126(1)(c) of the MRTP Act before making of an award and taking possession of the land.

        This article explores whether Girnar (3) was rightly decided, and also whether in Mehtab Laiq Ahmed Shaikh[5], the  Bombay High Court was right in holding that section 24(2) of the 2013 Act is not applicable to acquisition of land via section 126 (1)(c) of the MRTP Act.  Let us now discuss the relevant provisions of MRTP Act.

Land acquisition under MRTP Act

        Chapter VII of the MRTP Act deals with land acquisition, and starts with section 125 which reads thus:

“125. Compulsory acquisition of land needed for purposes of Regional Plan, Development Plan or Town Planning, etc.

Any land required, reserved or designated in a Regional Plan, Development Plan or town planning scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose [within the meaning of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][6]:

    [Provided that the procedure specified in sections 4 to 15 (both inclusive) of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 shall not be applicable in respect of such lands.][7]

          It would be noticed from section 125 that the Maharashtra Legislature has expressly made the provisions of 2013 Act applicable to acquisition of land by a simple reference, excluding only the sections 4 to 15 thereof, and as such, without more, the legislature cannot be taken to have intended to exclude any of the rest of the provisions of the said Act for acquisition of land under Chapter VII. This is made clearer by section 126 which reads thus:—

 126. Acquisition of land required for public purposes specified in plans

 (1) When after publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any appropriate authority may, except as otherwise provided in section 113A acquire the land,—

(a)   By agreement by paying an amount agreed to, or

(b)  in lieu of any such amount, by granting the landowner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned [on the basis of the principles laid down in the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][8], Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index  or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or

(c) by making an application to the State Government for acquiring such land [under the provisions of The Right To Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][9],

and the land together with the amenity, if any, so developed or constructed, so acquired by agreement or by grant of Floor Space Index or Transferable Development Rights under this section [or under the provisions of The Right To Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][10], as the case may be, shall vest absolutely free from all encumbrances in the planning authority, Development Authority, or as the case may be, any Appropriate Authority.(emphasis supplied)

(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government, except in cases falling under section 49 and except as provided in section 113A, itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, [in the manner provided in section 19 of the Right To Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][11] in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section: (emphasis supplied)

Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.

[(3) On publication of a declaration under the said [section19][12], the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be,—

(i) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;

(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and

(iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area, or areas for comprehensive development, whichever is earlier, or as the case may be, the date or publication of the draft town planning scheme;

Provided that,  nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972:

Provided further that, for the purpose of clause (ii) of this sub-section, the market value in respect of land included in any undeveloped area notified under sub-section (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972, shall be the market value prevailing on the date of such commencement.][13]

[14][(4)[15][Notwithstanding anything contained in the proviso to sub-section (2) and sub-section (3), if a declaration] is not made within the period referred to in sub-section (2)(or having been made, the aforesaid period expired on the commencement of Maharashtra Regional and Town Planning [(Amendment) Act, 1993][16], the State Government may make a fresh declaration for acquiring the land [under the provisions of Right To Fair Compensation & Transparency in Land Acquisition, Rehabilitation And Resettlement Act 2013][17], in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh.]

            It would be noticed from section 126 that the appropriate authority[18] is authorized to acquire the land which is reserved for any public purpose in any plan referred to therein by agreement under clause (a) of section 126(1) subject to payment of an amount of compensation as may be agreed to, or in lieu of such amount under clause (b) of section 126(1) by grant of FSI (Floor Space Index) or Transferable Development Right (TDR) to the person interested, subject to the latter depositing with the planning authority, for payment to the lessor, if any, an amount equivalent to the lessor’s interest in the land as determined by the acquiring authority on the basis of the principles laid down in the 2013 Act (earlier the1894 Act). Therefore, insofar as clauses (a) and (b) of section 126(1) are concerned, the appropriate authority is the purchaser and the landowner is the seller, and title would naturally vest in the appropriate authority upon payment of the compensation mentioned therein and on taking possession of the land by it. However, if it be not possible to acquire the land under the said provisions, the appropriate authority is authorized under clause (c) of section 126(1) to apply to the State Government for compulsory acquisition of such land under the Central Act, and in due course, if the State Government initiates acquisition proceedings under the Central Act the State Government will be the acquiring authority. It is true that the acquisition is for an appropriate authority and may be at its instance, but nevertheless the acquisition is initiated by the Government under the Central Act.[19] The draftsman has apparently made an error in section 126(1) insofar as it provides that the land when acquired by the State Government pursuant to an application under section 126(1)(c) vests absolutely in the appropriate authority. It is submitted, with respect, that the Apex Court in Girnar (3) did not discern this crucial implication of law under the Central Act, and consequently, with respect, could not point out this defect in the said provision. It follows, therefore, that, in due course,  if the land is “so acquired” under the Central Act it shall ultimately vest in the State Government under section 38 of the 2013 Act (previously under section 16 of the 1894 Act ) and not  in the appropriate authority. Thereafter, the State Government has to transfer or deliver the land to the appropriate authority by making a panchanama which is the normal mode for delivery of possession of acquired land to the appropriate authority under the repealed 1894 Act.

         Moreover, just because the State Government has received an application made by the planning authority under section 126(1)(c), ipso facto, it does not make it obligatory on the State Government to straightaway initiate acquisition of the land because sub-section (2) of section 126 stipulates that “if the State Government is satisfied that the land specified in the application is needed for the public purpose”, “it may make a declaration to that effect in the Official Gazette, in the manner provided under section 19” of the 2013 Act[20]. We will discuss this aspect in detail presently.

Procedure for preparation of plans under the MRTP Act

          It would now pay to briefly refer to the relevant provisions of the MRTP Act applicable to preparation of various plans because under section 126(1)(c) an appropriate authority is authorized to apply for acquisition of any land which is specified even  in a draft Regional Plan, or a draft Development Plan. A draft Regional Plan is prepared under section 13 providing for all or any of the matters outlined in section 14, after which it is to be submitted to the State Government under section 15 for approval. Section 16 requires the Regional Board to publish a notice thereof in the Official Gazette and in such other manner as may be prescribed, inviting objections and suggestions from any person. Section 16 then requires the Regional Planning Committee to give an opportunity of being heard to all persons affected by the Regional Plan and thereafter sub-section (4) requires the Regional Planning Committee to prepare the Regional Plan containing such modifications, if any, as it considers necessary, and submit it to the State Government for approval. The State Government then sanctions the Regional Plan under Section 17 and publishes it in such manner as would bring it to the notice of all persons concerned.  

            Similarly, section 26 requires a planning authority, other than a Regional Planning Board, to prepare a draft development plan and publish it in the Official Gazette and in such other manner as may be prescribed inviting objections and suggestions especially in respect of the land use map contained therein. Sub-section (3) of section 28 requires the planning authority or the Town Planning Officer to give a reasonable opportunity of being heard to any person including the representatives of government departments in such manner as it thinks fit. Sub-section (4) then requires the planning authority or its Town Planning Officer or the Town Planning Committee, as the case may be, to consider the objections and suggestions within two months after the receipt thereof and make a list of such modifications or changes and carry out the same in the draft development plan as it or he may consider proper. Thereafter, the planning authority is required to publish the modifications in the draft development plan in not less than two local newspapers for information of the public. Section 30 then requires the planning authority to submit the draft development plan to the State Government which may sanction it with or without modifications in terms provided under section 31. Section 32 provides similar procedure for preparation of an interim development plan.

          In would be appreciated that the notifications published in Official Gazette under section 16 for preparation of a draft Regional Plan and under section 26 for a draft Development Plan inviting objections from the affected persons could be analogically compared to a notification published under section 4(1) of the 1894 Act (now under section 11 of the 2013 Act), and the provisions therein contained requiring giving an opportunity being heard to the affected persons to  section 5-A of the 1894 Act (now under section 15 of the 2013 Act). Nevertheless clause (i) of sub-section (3) of section 126 provides that if the land is acquired for the purposes of a new town, the market value shall be determined as prevailing on the date of publication of the notification under section 113(2) constituting or declaring the development authority;  clause (ii) then provides that, if the land is acquired for the purposes of Special Planning Authority, which is established under section 40, the market value shall be determined as prevailing on the date of publication of the notification under section 40(1) designating  an area as an undeveloped area; and clause (iii) provides that in any other case, the market value shall be as on the date of publication of the interim development plan, the draft development plan, or the plan for the area or areas for comprehensive development, whichever is earlier.

          However, the State Legislature also took cognizance of the fact that, although under sub-section (2) of section 126, no declaration can be made after the expiry of one year from the date of publication of the draft regional plan, development plan, or any other plan or scheme as the case may be, in reality very often the said period expired before publication of the declaration.  To address such contingency, sub-section (4) was enacted providing that if a declaration is not made within the period, referred to in the proviso of sub-section (2), the State Government may make a fresh declaration for acquiring the land in the manner provided by sub-sections (2) and (3) of section 126, subject to the modification that the market value of the land shall be the market value as on the date of declaration published in the Official Gazette for acquiring the land afresh.  Notably, MRTP Act has not imposed any timeline for making the award from the date of publication of the declaration. 

         It would thus be noticed that the provisions of sections 16, 17, 23, 26, 28, 29, 31, 32, 33, and Chapter V, dealing with Town Planning Schemes of the MRTP Act, prescribe an exhaustive procedure for reservation or designation of lands for public purposes in a regional plan, development plan, interim development plan or town planning scheme. MRTP Act could therefore be rightly construed to be an exhaustive code for the purposes of town planning, but it cannot be construed to be an exhaustive or complete code for implementation of plans for development of amenities, new towns and underdeveloped areas which perforce require compulsory acquisition of lands by Government exercising its power of eminent domain. It is for this reason that section 125 refers to the 2013 Act for acquisition of land reserved and designated in a plan for public purpose under the 2013 Act, clearly indicating that the MRTP Act is not a complete code in itself which ousts the application of other Acts. Moreover, wherever a departure from the general law has to be made the MRTP Act specifically provides for the same, as would be evident from section 125 excluding sections 4 to 15, and sub-sections (3) and (4) of section 126 fixing different dates for determining the market values of land as per the relevant plans. Therefore, MRTP Act cannot be exalted as a complete code in itself, as it envisages a joint reading with the 2013 Act (earlier the 1894 Act) for compulsory acquisition of land.[21]          The provisions of section 125 and 126 therefore indicate in unmistakable terms that the 2013 Act (earlier the 1894 Act) are both complementary and supplemental to the MRTP Act.

Meaning of the words “if the State Government is satisfied”

          Section 126(2) enjoins the State Government that it will have to be satisfied that the land specified in the application made by the appropriate authority under section 126(1)(c) is required for the public purpose specified therein. The Government cannot apply its mind in a vacuum to form its satisfaction: it is not an empty formality. It has to satisfy itself that the concerned planning authority has fully complied with the formalities provided under the MRTP Act; and especially that the concerned persons have been given an adequate opportunity of being heard by it on the suggestions, objections and representations received by it before designating and reserving the land in any plan under section 16 or section 28, as the case may be. Such an enquiry would be all the more crucial in case the land is specified in a draft development plan and the State Government is yet to consider it for giving approval its under section 31. The State Government has to apply its mind to the report under section 28 of the Town Planning Officer or the Town Planning Committee, as the case may be, to form a rational opinion that the land sought to be acquired has been duly specified in the plan for the public purpose. This requirement therefore visualizes a contingency that the State Government may not be satisfied that the land specified in the application under section 126 (1)(c) is needed for the public purpose for reasons of noncompliance with any of the mandatory provisions of the Act, or that the mind of the  authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider[22], or for any other materially relevant matters which may have in the interregnum come to its notice even after the plan was earlier sanctioned by it, any one of which may dissuade it from acquiring the land by making a declaration of public purpose. Therefore, if the Government is “not satisfied” it may not decide to acquire the land, and consequently the proposal forwarded to it by the planning authority under section 126(1)(c) shall stand rejected.

           Moreover, section 126(2) also provides that instead of acquiring the land for the public purpose specified in the application made by the appropriate authority under section 126(1)(c), if the State Government itself is of opinion that any land included in any such plan is needed for any other public purpose, it may make a declaration to that effect under section 19 of the 2013 Act in the Official Gazette—except for land under section 49, which casts an obligation on it to acquire the land for the particular public purpose as specified in the plan for the appropriate authority on refusal of permission by the planning authority to develop the land by the owner; and under section 113A, which requires the State Government to acquire land for a Corporation or a Company declared to be New Town Development Authority.

           In this backdrop, it passes comprehension as to how just upon an application made by an appropriate authority under section 126(1)(c) the land shall instantaneously stand “so acquired” under the 2013 Act (previously under the 1894 Act) and title vested in the Government. It is submitted that such a construction would be possible only by doing violence to the provisions of sub-sections (2) and (3) of section 126, and rendering the gamut of mandatory procedure of acquiring the land under the 2013 Act otiose and redundant. Moreover, section 126(1)(c) nowhere indicates, expressly or impliedly,  any such thing. Consequently, such an interpretation can be attributed to what Lord Atkin had discussed in Liversidge v. Anderson[23]. This view is also supported by the decision of the Apex Court in Shri Mandir Sita Ramji v. Lt. Governor of Delhi[24], wherein Mathew J. said:

“When the procedure is prescribed by the Legislature, it is not for the Court to substitute a different one according to its own notion of justice. When the Legislature has spoken, the judges cannot afford to be wiser.” (emphasis supplied)

        Similarly, in M/s Aphali Pharmaceuticals Limited v. Maharashtra[25], the Apex Court ruled that the best mode of interpretation of a provision of a statute is to interpret it “in such a way as to harmonize laws with laws…Every word of a statute is to be given a meaning. A construction which would leave without effect any part of the language of a statute will normally be rejected. Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole statute.” (emphasis supplied)

         It would thus be plain from the foregoing that unless the State Government proceeds to make a declaration under section 19 of the 2013 Act[26]  and, thereafter, as provided under sub-section (3) of section 126, the Collector proceeds to take order for acquisition of the land under the said Act and completes the gamut of mandatory proceedings under sections 20, 21, and 22, and makes an award under section 23 read with 25 of the 2013 Act (earlier under the provisions of the 1894 Act), culminating in taking possession of the land under section 38 after ensuring that full payment of compensation, as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons there is no question of the title of the land vesting in the Government. To hold otherwise would tantamount to putting the cart before the horse.

         In Baba Barkya Thakur v. State of Bombay[27], a five-Judge Constitution Bench of the Apex Court ruled thus:

“It is only under section 6 that a firm declaration has to be made by Government that land with proper description and area so as to be identifiable is needed for a public purpose or for a company. What was a mere proposal under section 4 becomes the subject matter of a definite proceeding for acquisition under the Act…”  (emphasis supplied)

        Applying the same principle, it is submitted that the application contemplated under clause (c) of section 126(1) could be conceivably construed to be only a mere proposal forwarded to the Government with a request to initiate acquisition proceedings for the land expressly under the 2013 Act (earlier under the 1894 Act), which, as noticed above, could be rejected by the Government if it is not satisfied that the land is required for the public purpose.  Therefore, only when the State Government makes a declaration under section 19 of the 2013 Act (earlier under section 6 of the 1894 Act) what was a mere proposal under clause (c) of section 126(1) would become crystallized as the subject matter of a definite proceeding for acquisition under the Central Act.

           Consequently, the following observation of Swantanter Kumar J. in Girnar (3), with respect, is non-sequitur:

“125. …Section 126(2) refers to Section 6 of the Land Acquisition Act only for the purpose of format in which the declaration has to be made...”

         If section 126(2) refers to section 6 of the 1894 Act (now section 19 of the 2013 Act) merely for the purpose of a format why is it that the declaration to be published under section 6(1) of the 1894 Act (now section 19 of the 2013 Act) is made contingent upon the State Government being satisfied that the land is required for the public purpose specified in the application made by the appropriate authority under section 126(1)(c)? Why is it that sub-section (2) of section 126 is subjected to the proviso that no declaration shall be made after expiry of one year from the date of publication of the draft Regional Plan, Development Plan, or any other plan or Scheme, as the case may be? Why does sub-section (3) provide that on publication of a declaration under section 6(1) of the 1894 Act (now section 19 of the 2013 Act) the Collector shall take order for the acquisition of the land under the Central Act whereupon the provisions of the Act shall apply to the acquisition of the said land?    

         That the aforesaid observation in Girnar(3), with respect, is entirely misconceived, and title of the land does not vest in the Government simply upon making an application under section 126(1)(c) by the appropriate authority, is clearly indicated by the Legislature in section 129 (1) which reads thus:

  “129. Possession of land in case of urgency

(1)      At any time after the publication of a notification under sub-section (2) of section 126, where the State Government, on an application of the Planning Authority or Appropriate Authority, is satisfied that the possession of any land which is reserved or designated for a public purpose either under a Regional Plan or Development Plan (sic, is) urgently required for defence of India or national security or for natural calamities or for any other emergency, by that authority with the approval of the State Government, the State Government may by an order in writing authorize the Collector, to enter on and take possession of the land under acquisition after giving a notice of fifteen days, and thereupon the right or interest in that land shall be extinguished from the date specified in the order and on the date on which possession is taken, the land shall vest without any further assurance and free from encumbrances in the State Government:” (emphasis supplied)

It would be plain from Section 129(1) that the State Legislature has never intended that before publication of the declaration under section 6(1) of the 1894 Act (now section 19 of the 2013 Act), as contemplated under sub-section (2) of section 126 of the MRTP Act, the title of the land shall vest absolutely in the Government without completion of the mandatory further proceedings as indicated in sub-section (3) of section 126. Section 129(1), however, makes it clear that only after publication of a declaration under section 126(2), in case of an urgency as defined therein, the appropriate authority, may make an application to the State Government that the land is urgently required by it; and thereupon the State Government may by an order in writing authorize the Collector, to enter on and take possession of the land after giving a notice of fifteen days.; and only pursuant thereto, when the Collector takes possession of the land the right or interest in that land shall be extinguished from the date specified in the order; and on the date on which possession is taken, the land shall vest in the State Government. This power under section 129(1) is, however, made subject to compliance of the preconditions mentioned in the proviso to sub-sections (1) and (3) of section 129.[28]

Now, if as per Girnar (3), the title of the land has already vested in the Government at the stage of section 126(1)(c) itself, why should section 129(1) require the appropriate authority to make an application to Government, that too, only after the declaration has been made under section 126(2), to issue an order to the Collector to take possession of the land? Why should the State Government then issue an order in writing to the Collector authorizing him “to enter on and take possession of the land after giving a notice of fifteen days”?  And why should only then “the right or interest in that land shall be extinguished from the date specified in the order and on the date on which possession is taken?” and why should only then the land shall vest without any further assurance and free from encumbrances in “the State Government”?  This also indubitably settles that the acquired land shall vest only in the State Government and not in the “planning authority” or “the appropriate authority” as the case may be, as the draftsman has wrongly written in section 126(1)(c).

             Swatanter Kumar J, with respect, also erred in ignoring that even under the urgency provisions of section 17 of the repealed 1894 Act though vesting takes place before making of the award, sub-section (3) required the Collector, at the time of taking possession, to offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession; and, secondly,  sub-section (3-A) required the Collector, without prejudice to the provisions of sub-section (3),—(a) to tender payment of  eighty per centum of the compensation for such land as estimated by him; and (b) pay it to the persons interested, unless he was prevented from doing so by someone or more of the contingencies mentioned in section 31(2) in which event the provisions of section 31(2), except the second proviso thereto, would apply to payment of the compensation under that section. Almost similar provisions have also been engrafted in sub-section (3) of section 40 of the 2013 Act.

         As regards reference to section 83 of the MRTP Act made in Girnar (3), it is submitted that section 83(1) provides that the State Government, “if satisfied that it is urgently necessary in public interest to empower the planning authority to enter on such land for the purpose of executing any of such works,” as indicated in Section 59(1)(b), may direct the arbitrator, appointed by it under section 72, by notification in the Official Gazette to take possession of the land. However, the proviso to section 83(2) mandates giving an adequate opportunity of being heard to the affected persons. Section 85(2) then provides that the planning authority may, at the request of the persons interested, pay after consultation with the arbitrator an advance as provided under sub-section (3) of section 129.[29]

A simple reference

          The legislature has spoken very clearly that on publication of the declaration under section 126(2), the collector shall proceed to take order under sub-section (3) for acquisition of the land under the 1894 Act (now under the 2013 Act). It is, therefore, crystal clear that in the MRTP Act the legislature has made a simple reference to the 1894 Act (now the 2013 Act).  The Legislature has neither bodily incorporated any of the provisions of the Central Act nor appended any of them in a schedule thereto with modifications, which is normally the mode of adoption by incorporation.[30]  The state legislature has also not incorporated in the MRTP Act any modified provisions of the 2013 Act from the stage of publication of the declaration under section 19 of the 2013 Act (or for that matter incorporated any of the provisions of the 1894 Act prior to amendment of the MRTP Act by Act 42 of 2015).  On the contrary, the legislature, for reasons adduced above, has in its collective wisdom unequivocally declared under the proviso to section 125 that for acquisition of the land only the procedure specified in sections 4 to 15 (both inclusive) of the 2013 Act shall not be applicable, which is a clear or implied intendment that the rest of the provisions which are not excluded shall proprio vigore apply to acquisition of the lands under the MRTP Act. 

Employment of well-known formulae

for incorporation

            In Collector of Customs, Madras v. Nathella Sampathu Chetty[31], Ayyangar, J., speaking for a five-Judge Constitution Bench of the Apex Court, observed that in case of incorporation of the provisions of the earlier Act in a latter Act, the draftsman normally employs some of the well-known formulae leaving no doubt whatsoever. 

(a)   where the latter Act provides that the provisions of the earlier Act “shall for that purpose, be deemed to form part of this Act in the same manner as if they were enacted in the body thereof”.

(b)   where the latter Act provides that the provisions of the earlier Act “shall apply as if they were herein re-enacted”.

(c)   where the latter Act provides that the provisions of the earlier Act “shall except so far as repealed by this Act, be incorporated with this part of this Act, subject to the amendments specified in the second column….”

(d)   where the latter Act provides that the provisions of the earlier Act “so far as they are applicable for the purposes of this Act and are not inconsistent with the provisions thereof, are hereby incorporated with this Act”.[32]

Employment of well-known formulae

for simple reference:

(i)    If an earlier law governs a particular subject generally and is referred to in the latter law, it is an instance of simple reference without any intention to “bodily transpose such law therein.”[33]

(ii)   If the latter law having special provisions refer to general law without expressly excluding future amendments in the latter.[34]

         Moreover, the Supreme Court in State of M.P. v. M.V.Narasimhan[35] has cited the following exceptions to the doctrine of legislation by incorporation:

“(a) Where the subsequent Act and the previous Act are supplemental to each other;

(b) Where the two Acts are in pari materia;

(c) Where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) Where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.”

      Another exception that has come to be added to the exceptions adumbrated in Narasimhan case[36] is where the benefits given to the affected person by the earlier Act are denied to the affected persons under the subsequent Act constituting a hostile discrimination against the latter incurring the wrath of Article 14 of the Constitution[37].

    Chapter VII of the MRTP Act entitled “Land Acquisition” contains only five provisions of which we have already noticed Ss. 125, 126 and 129.  Section 127 pertains to lapsing of reservation; it declares that if any land which is reserved, allotted or designated for any purpose specified in any plan is not acquired by agreement, or if a declaration under sub-section (2) or (4) of section 126 is not published in the Official Gazette, within ten years from the date on which the final Regional Plan, or final Development Plan comes into force, the owner or any person interested in the land may serve notice on the Appropriate Authority[38]; and thereafter if within (twenty four months)[39] the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation of the land shall lapse and deemed to be released from such reservation, allotment or designation. Thereupon, the land shall be available to the owner for purpose of development permissible in the case of adjacent land. However, section 127 provides that lapsing of reservation would not take place if  a declaration is made under section 126(2) read with section 6(1) of the 1894 Act (now under section 19 of the 2013 Act), whether or not further proceedings have been completed.  As such, section 127 does not provide any safeguard to the landowner, as under section 11-A of the 1894 Act (now under section 25 of the 2013 Act).

            Against this legal position in the MRTP Act, in Girnar (3), Swatantar Kumar J. has observed (SCC, p. 78, para 169) that “even where the reservation lapses as a result of default specified in the provisions of Section 49, 126 and 127 of the State Act, the acquisition of the vested land would not, per se, lapse”. It is submitted that this observation of His Lordship, with respect, is entirely misconceived because under Sections 49 of the MRTP Act reservation lapses when the purchase notice given by the landowner to the State Government is not confirmed by it; or if within one year from the date of confirmation of the purchase notice the appropriate authority fails to make an application to the State Government under sub-section (7) of Section 49 to acquire the land under Section 126. There is no question, however, of lapsing of reservation under section 126, which is an enabling provision to acquire any land reserved or designated for a public purpose in any plan. The legal position under the MRTP Act is that, if acquisition is started under section 126 within the limitations prescribed under Ss. 49 and 127, as the case may be, there is no question of reservation lapsing but once reservation lapses thereafter there is no question of acquisition of such land. Swatanter Kumar J., with respect, erred because his Lordship was labouring under a wrong premise that title of the land vests in the Government  just upon the appropriate authority making an application under section 126(1)(c) of the MRTP Act. We have already pointed out above the inherent fallacy in such a premise.

     Section 128 (1) provides for acquisition of the land  by  the State Government under the provisions of the 1894 Act (now 2013 Act) for a public purpose other than the purpose for which it is reserved or designated in any plan. As such, in such acquisition the land goes out of the purview of the MRTP Act, for paucity of space it is not elaborated here.

      It would thus be noticed that except for the five provisions mentioned above, the MRTP Act does not have any of the provisions required for taking the gamut of proceedings essential for acquisition of land, e.g., for holding an inquiry for determining the area and the value of the land, apportionment of the compensation among the interested persons, the guidelines to be followed by the Collector for determining the market value, payment of compensation, interest on the market value and solatium, lapsing of reservation for delay in making award, reference from the award made by Collector and for a dispute redressal machinery like the reference Court, as in the case of Secretary of State for India in Council[40].  As such, once a declaration is made by the State Government under Section 6 of the 1894 Act (now under section 19 of the 2013 Act) read with Section 126 (2) of the MRTP Act, and as expressly mentioned in sub-section (3) thereof, the provisions of the 1894 Act (now 2013 Act), except for the modifications contained in clauses (i) to (iii) of section 126(3) as to the date of determining the value of the land, shall apply to such acquisition.  In conspectus, therefore, the 1894 Act (now 2013 Act) is supplemental to the MRTP Act because unless the 1894 Act (now 2013 Act) supplements the MRTP Act, the latter would be rendered absolutely unworkable insofar as acquisition of land is concerned.  It would thus be clear that the MRTP Act cannot be construed to be a complete code for acquisition of land. There is therefore no justification for holding that the provisions of section 11-A of the 1894 Act (now section 25 of the 2013 Act) is not applicable for acquisition of land via the MRTP Act. This view is fortified by the decision in Mariyappa v. State of Karnataka[41] wherein the Apex Court, in similar situations, held that Section 11-A of the 1894 Act applies to acquisition of land under the Karnataka Acquisition of Land for Grant of House Sites Act, 1972. 

Let us now turn to the following observation in Girnar (3):

“130. While referring to Section 6 of the Land Acquisition Act, the State Legislature has not adopted, specifically or otherwise, the period in proviso to Section 6(1) of the Land Acquisition Act. On the contrary, different time frames have been postulated under different provisions of the MRTP Act. If those limitations are not adhered to by the concerned authorities, the consequences have also been provided therefor. From the stage of initiation of steps for preparation of draft plans to the finalization of the scheme, it takes considerable time. Furthermore, its implementation at the ground level, takes still much more time. If this entire planned development which is a massive project is permitted to lapse on the application of section 11-A of the Central Act, it will have the effect of rendering every project of planned development frustrated….” (emphasis supplied)

         Firstly, the observation that “the State Legislature has not adopted, specifically or otherwise, the period in proviso to Section 6(1) of the Land Acquisition Act” is  clearly wrong because the proviso to section 126(2) stipulates that subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other plan, or Scheme, as the case may be, which period is identical with the period stipulated in clause (ii) of the proviso to section 6(1). However, unlike the Central Act, in the MRTP Act no consequence is provided for delay in making the award by the Collector because it has no provision for compulsory acquisition of land as the land has to be acquired under the Central Act, subject to all its mandates and conditions. Moreover, acquisition of land specified in any plan is to be done by the State Government through the Collector under the Central Act, and as such preparation and implementation of the plans by the planning authority is entirely independent of acquisition being done by the Collector. Indeed, for implementing the schemes for the specified public purpose of acquiring the land, it is all the more imperative for the Collector to complete the proceedings and make the award strictly within the time frame provided under section 11-A which will serve the purposes of both the planning authority and the expropriated persons. It is also difficult to fathom how every project of planned development would be frustrated if the planning authority acquires the lands within a specified time frame.

          It has to be appreciated that an expropriated person is concerned with receiving a realistic market value of the land as quickly as possible as provided under the Central Act: he is not concerned whether the land is acquired under the MRTP Act for implementing the schemes of a planning authority or under the Central Act for building a medical college, a railroad or a dam for flood control. Moreover, under section 126(1) of the MRTP Act an appropriate authority can apply to the State Government for acquisition of land even before finalization and the approval of the draft plan by the State Government.

         Moreover, the observation that if the acquisition proceedings are allowed to lapse under section 11-A of the Central Act, it will have the effect of rendering every project of planned development frustrated, is not acceptable as an argument to urge that Section 11-A is not applicable; firstly, because that would amount to legislation as the State Legislature has not indicated anything of this kind in the MRTP Act; and secondly, because “to satisfy the test of bona fides of the acquisition it is elementary that there must exist a present need for acquisition for the execution of an existing public purpose. To put it in a term of art, both the public purpose and the need for execution must be in praesenti not in futuro”.[42]  Thirdly, and most importantly, if it is held that section 11-A is not applicable for acquisition of land under the MRTP Act, it would amount to making an invidious classification of persons similarly situated into two groups—one group whose lands are acquired via MRTP Act under which the acquisition proceedings, as per Girnar (3), could be purportedly allowed to hang indefinitely without a time frame for making an award leaving the landowner in the lurch, and another whose lands are acquired under the Central Act which would lapse on expiry of the limitation provided under section 11-A (now under section 25 of the 2013 Act). It is submitted that such a classification has no rational nexus with the object sought to be achieved which is acquisition of land for public purpose by the State. This view is fortified by the decision of the seven-Judge Constitution Bench of the Apex Court in Nagpur Improvement Trust v. Vithal Rao[43] where it was observed thus:

“30. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give to one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14.” (emphasis supplied)

The Court further observed:

“31. It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable things. If this argument were to be accepted it would be totally destructive of the protection given by Article 14. It would enable the State to have one law for acquiring lands for hospital, one law for acquiring lands for school, one law (sic, for) acquiring lands for clearing slums, another for acquiring lands for Government buildings; one for acquiring lands for Delhi, and another for acquiring lands for old Delhi… If the object is to clear slums it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owners are directly benefited by the scheme. If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired. The hospitals, schools, etc. must be built at the expense of the whole community.” (emphasis supplied)

Similarly, in The Deputy Commissioner & Collector, Kamrup v. Durganath Sarma[44], a five-Judge Constitution Bench of the Apex Court observed thus:

“18.…It is not possible to hold that the differential treatment of the lands acquired under the Land Acquisition Act 1894 and those acquired under the Assam Act No. 6 of 1955 has any reasonable relation to the object of acquisition by the State…”(emphasis supplied)

The Court then ruled thus:

“In our opinion the classification of land required for works and other measures in connection with flood control and prevention of erosion and land required for public purposes has no reasonable relation to the object sought to be achieved, viz., acquisition of the land by the State.  In either case, the owner loses his land and in his place the State becomes the owner. There is unjust discrimination between owners of land similarly situated by the mere accident of some land being required for purposes mentioned in Assam Act No. 6 of 1955 and some land being required for other purposes. We hold that Assam Act No. 6 of 1955 is violative of Article 14.” (emphasis supplied)

          On the backdrop of this legal position, in Girnar (3), the       Constitution Bench answered the reference thus: (SCC, para 191)

“...For the reasons stated in this judgment, we hold that the MRTP Act is a self-contained code. Further we hold that the provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of Chapter VII of the MRTP Act but with a specific exception that the provisions of the Land Acquisition Act in so far as they provide different time frames and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the MRTP Act. Section 11-A of the Land Acquisition Act being one such provisions cannot be applied to the acquisition under Chapter VII of the MRTP Act.” (emphasis supplied)

         It is submitted that Swatanter Kumar J., with respect, appears to have made an unguarded and sweeping observation “that the provisions of the Land Acquisition Act in so far as they provide different time frames and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the MRTP Act” without even specifically referring to them in the judgment. As we have noticed above, clause (ii) of the proviso to section 6(1) states that no declaration in respect of any particular land covered by a notification under section 4(1) shall be made after the expiry of one year from the date of the notification, and similarly in the MRTP Act also an identical time line has been provided in the proviso to section 126(2) that subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other plan, or Scheme, as the case may be. Then section 11-A provides that if the award is not made within a period of two years from publication of the declaration under section 6(1), the entire proceedings for acquisition of the land shall lapse. Now if section 11-A (now section 25 of the 2013 Act) is not applicable does it imply that the Collector shall be entitled to keep the proceedings initiated via MRTP Act hanging for an indefinite period? Section 13-A (now section 33 of the 2013 Act) then provides that the Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before making such reference, by order, correct any clerical or arithmetical mistake in the award or errors arising therein on his own motion or on the application of any person interested or a local authority. Does it also mean that if the land is acquired for a planning authority the collector would be entitled to correct such mistake at any time at his pleasure? Similarly, section 18 (now section 64 of the 2013 Act) requires an application to be made to the Collector to make a reference to the Court within six weeks from the date of the Collector’s award if the person was present before the Collector at the time of making the award or within six weeks from the date of receipt of the notice under section 12(2) from the Collector, as the case may be.  Will this time frame also not apply to acquisition of land under the MRTP Act and the Collector would be entitled to make reference at any time at his sweet will? Will the time frame of three months from the date of the award of the Court provided under section 28-A (now section 73 of the 2013 Act) for making an application to Collector also not apply if the land is acquired under the MRTP Act? It is submitted that if this rule in Girnar (3), were to be accepted it would inevitably render the exercise of power under the MRTP Act into an incomprehensible imbroglio which was never intended by the Legislature, and, indubitably amount to legislation making invidious classification of people based on the Central Act and the MRTP Act, which is ultra vires Article 14 of the Constitution; and, therefore, Girnar (3) was not correctly decided.

           The State Legislature was aware of Girnar (3), but even so by Mah. 42 of 2015, by inserting the proviso to section 125 it has deliberately excluded only the sections 1 to 15 of the 2013 Act for acquisition of land under the MRTP Act, leaving Section 25 untouched. This clinches the point that the State Legislature had never intended to exclude the time frame provided for making the award under the 2013 Act for acquisition of land via the MRTP Act. Section 25 mandates that the Collector shall make an award within a period of twelve months from the date of publication of the declaration under section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse with the proviso that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same. Indeed, the concern expressed by the Constitution Bench in Girnar (3) that if the time frame provided in section 11-A of the 1894 Act is applied to the MRTP Act “it will have the effect of rendering every project of planned development frustrated” is firstly contrary to the seven-Judge Constitution Bench decision in Nagpur Improvement Trust[45], and thus rightly has not been shared by the State Legislature in enacting Mah.42 of 2015 whereby it has left untouched section 25 of the 2013 Act.

          In Girnar (3), Swatanter Kumar  J.,  observed (SCC, p 70, para 140) that “reading of Section11-A of the Land Acquisition Act into Chapter VII of the MRTP Act will render the substantive provisions of the State Act ineffective, unworkable and may frustrate the object of the Act materially”, without, however, pointing out where the Legislature had at all intended this, and how the substantive provisions of the MRTP Act would be “frustrated”. Be that as it may, the question is what is the nature of S. 11-A? Is it a procedural or a substantive provision? The object of this provision was spelt out in the Statement of Objects attached to the Bill introducing the Land Acquisition (Amendment) Act, 1894, which in material part reads thus:

“…The pendency of acquisition proceedings for long periods often causes hardship for long periods to the affected parties and renders unrealistic the scale of compensation offered to them…It is proposed to provide for a period of two years from the date of publication of the declaration under S.6 of the Act within which the Collector should make his award under the Act. If no award is made within the period, the entire proceedings for the acquisition of the land would lapse.”

          The provision of section 11-A mandates that if no award is made within the two year period of limitation, the entire acquisition proceedings under the 1894 Act shall lapse and the owner of the land or person interested in the land is made free to deal with the land as an unencumbered land.[46] It is therefore clear that the object of stipulating the time frame of one year for making the declaration under section 6 (1) after the date of publication of the notification under section 4(1) combined with stipulating a time frame of two years under section 11-A  for making the award from the date of publication of the declaration is to ensure that the price of the land paid to the expropriated person is realistic as on the date of making the award, and not illusory for being pegged on to a date prevailing at the unconscionably long distant past as on the date of publication of the section 4(1) notification, which was the rule prior to the commencement of the Land Acquisition (Amendment) Act, 1894.[47]

         Salmond on Jurisprudence[48] states, “To define procedure as concerned not with rights, but with remedies, is to confound the remedy with the process by which it is made available.” It further states that a right to recover certain property is a question of substantive law for the determination and the protection of such rights are among the ends of the administration of justice. Again, what facts constitute a wrong is determined by substantive law; it defines the remedy and the right, while normally the law of procedure defines the modes and the conditions of the application of the one to the other.  Let us now ask: what was the end, which Parliament sought to achieve by enacting section 11-A? Was it to confer a right on the landowner? Or, was it intended merely to lay down a procedure for the Collector to follow without creating any right for the landowner? Answers to these questions are not difficult to find. Before the commencement of the Land Acquisition (Amendment) Act, 1894 there was no statutory compulsion on the part of the Collector to make the award within a time frame. But by Act 68 of 1984 Parliament inserted section 11-A making it mandatory to make the award within the maximum period of two years from the date of making the declaration under section 6(1). Therefore, in accordance with the principles stated in Salmond on Jurisprudence, section 11-A has to be interpreted as a substantive provision, and cannot be discarded as procedural and consequently, Girnar (3) in this regard, with respect, was wrongly decided.

Applicability of S. 24(2) to MRTP Act

    In Mehtab Laiq Ahmed Shaikh[49], a three-Judge Full Bench of the Hon'ble Bombay High Court has, with respect, followed Girnar (3), and held that  “as long as the MRTP Act continues to be a code in itself, an outside provision introducing different time frames, and consequences of default resulting in lapsing of acquisition, cannot be made applicable to the MRTP Act”, notwithstanding the mandate of the proviso to section 125 of the MRTP Act that while acquiring the land under the 2013 Act the procedure under sections 4 to 15  shall be excluded, which, without anything more, by necessary intendment, implies that “what is not excluded is included”. The High Court failed to appreciate that while amending the MRTP Act by Mah. 42 of 2015, the State Legislature has consciously left section 25 of the 2013 Act untouched. Section 25 of the 2013 Act is therefore fundamental to the Collector’s power to make the award under section 23: he can make the award only within the time frame of twelve months provided therein, and if he fails to do so the entire acquisition shall lapse. The High Court erred in not appreciating that the State Legislature has spoken very clearly in the proviso to section 125 rejecting the rule in Girnar (3) that the time frames under the Central Act are not applicable to the MRTP Act. Moreover, the High Court, with respect, also erred in observing that “an outside provision introducing different time frames, and consequences of default resulting in lapsing of acquisition of the 2013 Act, cannot be made applicable to the MRTP Act” because, for reasons adduced above, MRTP Act cannot be exalted as a complete code in itself, as for acquisition of land, it envisages a joint reading with the 2013 Act.

         As regards the applicability of section 24(2) of the 2013 Act to the MRTP Act the High Court sought to make a subtle distinction as between lands acquired pursuant to an application made under section 126(1)(c) of MRTP Act and lands directly acquired under the 1894 Act. The Court referred to the words “initiated under the Land Acquisition Act”, occurring in section 24(2), and then referring to the dictionary, observed that “Initiation is not mere presentation but consciously putting the process in motion. The dictionary meaning of the word ‘initiation’ is ‘originating’, ‘to start’.” The Court therefore held that section 24(2) applies only to land whose acquisition was initiated under the 1894 Act and not to land whose acquisition was initiated under the MRTP Act.

          It is respectfully submitted that “A statute cannot always be construed with the dictionary in hand and the statute in the other. Regard must be had to the scheme, context and to the legislative history.[50] It is also necessary to heed the caution given by Justice Learned Hand who said: “But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that the statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”[51]  It is evident that the word “initiated” has been used in the context by the legislature only as a verb in section 24(2) in order to distinguish the land acquisition proceedings undertaken under the 1894 Act from the proceedings under the 2013 Act so as to confer a special benefit on the expropriated persons under the 1894 Act in certain cases. It was obviously not the intention of the legislature to exclude the acquisition proceedings which were initiated by the Government on a request made by a planning authority under the MRTP Act, or by any of its departments under any other Act.

          Moreover, even otherwise, the above conclusion, with respect, is wrong for the following reasons. Firstly, the acquiring authority for lands reserved and designated in any plan under the MRTP Act is the Government, and not the planning or appropriate authority. As such, acquisition can be initiated only by the State Government under the 1894 Act (now under the 2013 Act) when in exercise of the power of eminent domain it takes the first step by making a declaration in the Official Gazette under section 6 . There is therefore no question of a planning authority initiating acquisition proceedings merely by sending a proposal under section 126 (1)(c) to the Government to acquire the land under the 1894 Act.[52] In practice all acquisition proceedings under the 1894 Act (now under the 2013 Act) are initiated by the concerned departments, e.g., if the Irrigation Department wants to construct a dam, it has to apply to the appropriate Government to initiate acquisition proceedings under the 2013 Act, and if the appropriate Government ultimately starts the acquisition  proceedings the irrigation department cannot be  taken to have initiated the acquisition under the Irrigation Act; secondly, because an application under section 126(1)(c) is not a notification initiating  acquisition of  land under the law; and thirdly, as noticed above, merely because an application has been received from the planning authority it is not obligatory on the Government to straightaway acquire the land because section 126(2) enjoins the Government to make a declaration only after it is satisfied that the lands specified in the application is required for a public purpose. As such, if the Government is not so satisfied the acquisition proceedings would not get initiated, and the proposal to acquire the land sent to it by the planning authority under section 126(1)(c) would stand rejected. In view of this clear legal position, section 24(2)—also considering its sympathetic legislative object, conferring a substantive right on the expropriated persons to get a fair market value of the land—must proprio vigore apply to acquisition of land reserved for public purpose under the MRTP Act. The High Court, with respect, has failed to undertake a “sympathetic and imaginative discovery” of the inherent object of legislation of section 24(2).  Fourthly, as discussed above, this interpretation of section 24(2) indubitably makes an artificial and invidious classification of persons similarly situated into two groups making it liable to be struck down being violative of Article 14 of the Constitution, as held in similar circumstances by the seven-Judge Constitution Bench of the Apex Court in Nagpur Improvement Trust[53], the Five-Judge Constitution Bench in P. Vajravelu Mudaliar[54], the Five-Judge Constitution Bench in The Deputy Commissioner & Collector, Kamrup[55], as also the three-Judge Bench in Om Prakash[56]; and, therefore, being inconsistent with the binding authorities Mehtab Laiq Ahmed Shaikh[57], was wrongly decided. It is submitted that, to avoid this result, following the principle, laid down by the Five-Judge Constitution Bench in Kedar Nath Singh v. State of Bihar[58], the High Court should have so construed section 24(2) as would have made it consistent with the Constitution, and avoided the interpretation which has rendered it unconstitutional.

          The Court then referred to rule 19(3) of the Maharashtra Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation and Resettlement Rules, 2014 made by the Government of Maharashtra in exercise of the power under section 109 of the 2013 Act. Rule 19 reads thus:

“19. Land Acquisition Proceedings Initiated Under Land Acquisition Act, 1894—

(1)******

(2)*******

“(3) Where the land is reserved for public purposes according to the Maharashtra Regional Town Planning Act, 1966 (Mah. XXXVII of 1966), and a declaration under sub-section (1) of Section 6 of the Land Acquisition Act, 1984 (I of 1894) has been made before the 31^st December 2013 and an award under Section 11 of the Land Acquisition Act, 1894 (I of 1984) has not been declared before the 31^st December 2013, then the proceeding shall be continued as per the formula provided in Sections 26 to 30 of the Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013)”.  (emphasis supplied)

            It would be noticed that Rule 19(3), ex facie, addresses the situation where acquisition proceedings for land reserved for a public purpose under the MRTP Act are “initiated under the Land Acquisition Act, 1894” by making a declaration under sub-section (1) of Section 6, but the award has not been made prior to commencement of the 2013 Act, as provided under section 24(1)(a). The State Government has virtually performed a cut and paste operation and bodily lifted the words, “the land acquisition proceedings initiated under the Land Acquisition Act, 1894” either from section 24(1) or section 24(2) and pasted them in Rule 19. The State Government has therefore acknowledged in rule 19 that acquisition proceedings for land reserved for public purpose under the MRTP Act are initiated under the 1894 Act by making a declaration under sub-section (1) of Section 6, and not under the MRTP Act as the High Court has wrongly held; and therefore it follows that the beneficial provision of section 24(2) proprio vigore applies to acquisition of lands reserved under the MRTP Act. The High Court has, however, unhesitatingly approved rule 19(3), and commended the State Government that it has taken due steps to give higher compensation benefits to the landowner.  It is submitted that as against this, its interpretation that section 24(2), because it speaks of “Land Acquisition Proceedings Initiated Under Land Acquisition Act, 1894” does not apply to acquisition of land reserved for any public purpose under the MRTP Act, with respect, is hoist with its own petard.

SUMMING-UP:

(a)   It is not obligatory on the Government to straightaway initiate acquisition of the land just on an application received from the appropriate authority under section 126(1)(c) of the MRTP Act  because if the Government is “not satisfied” as mandated under section 126(2) it may not acquire the land, and consequently the proposal forwarded to it by the planning authority under section 126(1)(c) would stand rejected.

(b)   That vesting does not take place at the stage of section 126(1)(c) is made crystal clear by the urgency provisions of section 129 of the MRTP Act, which provides that only after a declaration is made under section 19 of the 2013 Act, the planning authority can request the State Government to issue order to the Collector to take possession of the land, and only when possession is taken by the Collector the title shall vest in the Government.

(c)   Being the acquiring authority the title of the land shall vest only in the State Government either under section 38 of the 2013 Act, or under section 129(1) of the MRTP Act, as the case may be, and not in the planning authority as the draftsman has wrongly mentioned in section 126(1) of the MRTP Act.

(d)   MRTP Act is a comprehensive code only with respect to town planning matters, but it cannot be exalted as a complete code in itself, as it envisages a joint reading with the 2013 Act (earlier the 1894 Act) for acquisition of land. Indeed, MRTP Act makes a simple reference to the 2013 Act and has neither incorporated nor bodily lifted any of the provisions of the 1894 Act or the 2013 Act. Consequently, the provisions of the 1894 Act, including section 11-A, and now the 2013 Act, excluding sections 1 to 15, but including section 25, with the time frames provided therein, shall apply to the MRTP Act.

(e)   Sections 11-A in the 1894 Act and 24(2) in the 2013 Act are substantive provisions conferring a right on the expropriated persons essentially to ensure that they receive a fair and realistic compensation for their lands. If in order to deny the benefits under the said provisions an artificial and invidious distinction is sought to be made between persons similarly situated on the basis of whether their lands are acquired under the Land Acquisition Act or the MRTP Act, the said provisions would be liable to be struck down for being violative of article 14 of the Constitution.

(f)    However, in exercise of the power of eminent domain acquisition of land can be initiated only by the Government under the 1894 Act (now under the 2013 Act) when it takes the first step under section 126(2) by making a declaration in the Official Gazette under section 6 (now under section 19 of the 2013 Act). Hence, there is no question of a planning authority initiating acquisition proceedings under the MRTP Act. Apart from this, in Mehtab Laiq Ahmed Shaikh[59] the High Court, with respect, has failed to undertake a “sympathetic and imaginative discovery” of the inherent object behind section 24(2), conferring a substantive right on the expropriated persons to get a fair market value of the land. As such, section 24(2) must proprio vigore apply to acquisition of land reserved for public purpose under the MRTP Act.

(g)   Girnar (3), holding that the time frames under the 1894 Act do not apply to the MRTP Act, and the Bombay High Court decision in Mehtab Laiq Ahmed Shaikh[60] holding that section 24(2) does not apply to acquisition of land under the MRTP Act are contrary to law, and the binding precedents of the seven-Judge Constitution Bench in Nagpur Improvement Trust[61], the Five-Judge Constitution Benches in P. Vajravelu Mudaliar[62] and in The Deputy Commissioner and Collector, Kamrup[63], and hence, with respect, were not correctly decided; and

are therefore required to be reconsidered by the Supreme Court to straighten the law to render substantial justice to a large number of expropriated landowners in conformity with section 24(2) of the 2013 Act.  

                                        E….N….D