Delhi High Court

Jagjit Singh & Ors. vs Uoi &Ors.; on 27 May, 2014

Author: Badar Durrez Ahmed

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Judgment delivered on: 27.05.2014


W.P.(C) Nos.2806/2004 & 2807-2934/2004

JAGJIT SINGH & ORS.                                 ..... Petitioners
                  versus
UOI &ORS.                                           ..... Respondents

                               AND

W.P.(C) 2937/2004, 2938-3000/2004, 3002-3137/2004

SUDHAR SAMITI RAJIV NAGAR EXT.                      ..... Petitioner

                      versus

UOI &ORS.                                           ..... Respondents

                               AND
W.P.(C) 7077/2004

SURENDER PAL GUPTA                                  ..... Petitioner

                      versus

UOI & ORS.                                          ..... Respondents

                                AND

W.P.(C) 7333/2004, 7334-7337/2004

RAMESH KUMAR YADAV & ORS.                           ..... Petitioners

                      versus

UOI & ORS.                                          ..... Respondents



WP(C) 830/2013                                                  Page 1 of 11
                                AND

W.P.(C) 8030/2004, 8031-8047/2004

SWAMI SHIRADHANAND RES.WEL.ASS       ..... Petitioner

                      versus

UOI & ORS.                           ..... Respondents

                               AND

W.P.(C) 8048/2004

OM PRAKASH GOYAL & ANR.              ..... Petitioners

                      versus

UOI & ORS.                           ..... Respondents

                               AND
W.P.(C) 9270/2004

KAILASH YADAV                        ..... Petitioner

                      versus

UOI & ORS.                           ..... Respondent

                               AND

W.P.(C) 2398/2006, 2399-2404/2006

S.K.JAIN & ORS.                      ..... Petitioners

                      versus

UOI & ORS.                           ..... Respondents


WP(C) 830/2013                                   Page 2 of 11
                                          AND

W.P.(C) 1892/2014

RAMESH AGGARWAL                                                   ..... Petitioner

                             versus

UNION OF INDIA & ORS                                              ..... Respondents
Advocates who appeared in this case:
For the Petitioner  : Mr Ravinder Sethi, Sr. Advocate with Mr Rajiv Kumar Ghawana,
                      Advocate in W.P.(C) Nos.2806/2004, 2937/2004,
                      7333/2004 & 9270/2004.
                      Mr Sundeep Srivastava, Advocate in W.P.(C) Nos.7077/2004,
                      8030/2004, 8048/2004, 2398/2006.
                      Ms Ritu Yadav, Advocate in W.P.(C) No.1892/2009.

For the Respondents   : Mr Yeeshu Jain, Advocate for L&B in W.P.(C) No 1892/2014.
                        Mr Parvinder Singh Chauhan, Advocate for DUSIB in W.P.(C)
                        No.8048/2004.
                        Mr Sanjay Kumar Pathak, Advocate with Mr Sunil Kumar Jha,
                        Advocate for LAC.
                        Mr Neeraj Chaudhari, CGSC for UOI in W.P.(C) Nos.2806/2004
                        and 2937/2004.
                        Ms Barkha Babbar, Advocate for UOI in W.P.(C) No.8030/2004.

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. These writ petitions raise a common issue and, therefore, the same are

being disposed of by a common judgment. The point urged on behalf of the

petitioners in this batch of writ petitions is that the acquisition of their lands

lapsed on account of applicability of section 24(2) of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (hereinafter referred to as „the new Act‟).

2. It is the case of the petitioners that the three conditions for attracting

the deeming provisions of section 24(2) of the new Act have been satisfied

and, therefore, all proceedings towards acquisition of land under the Land

Acquisition Act, 1894 (hereinafter referred to as „the old Act‟) ought to be

deemed to have lapsed. Section 24 of the new Act reads as under:-

"24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 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 (1 of 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."

3. It is evident upon a plain reading of the above provisions that by virtue

of sub-section (1) thereof, that, where no award under section 11 of the old

Act has been made, the land acquisition proceedings initiated under the old

Act would be governed by the provisions of the new Act relating to the

determination of compensation. However, where an award has been made

under section 11 of the old Act, then such proceedings would continue under

the provisions of the old Act as if the old Act had not been repealed. This is,

however, subject to the non-obstante provisions contained in sub-section (2)

of section 24 of the new Act which clearly stipulates that where an award

under section 11 of the old Act has been made five years or more prior to the

commencement of the new 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. It is also stipulated that the appropriate

Government, if it so chooses, can initiate the proceedings of land acquisition

afresh in accordance with the provisions of the new Act.

4. In the present writ petitions, it is an admitted position in view of the

affidavit dated 27.05.2014, which has been handed over across the Bar and is

taken on record, that possession has not been taken and compensation has

also not been paid. Furthermore, the award in each of these cases has been

made more than 5 years prior to the commencement of the new Act (i.e.,

01.01.2014). Therefore, it is contended by the learned counsel for the

petitioner that all the conditions stipulated in section 24 (2) of the new Act

have been satisfied and, as such, they are entitled to a declaration that the

acquisition proceedings have lapsed.

5. The learned counsel for the petitioners placed reliance on three

decisions of the Supreme Court in Pune Municipal Corporation and Anr. v.

Harakchand Mistrimal Solanki & Ors.: (2014) 3 SCC 183; Bharat Kumar

v. State of Haryana & Anr.: 2014 (3) SCALE 393 and Union of India v.

Shiv Raj & Ors.: (Civil Appeal Nos.5478-5483/2014 decided on

07.05.2014).

6. Mr Sethi, the learned senior counsel appearing on behalf of the

petitioners also referred to the decision of the Supreme Court in the case of

State of Bombay v. Pandurang Vinayak Chaphalkar and Ors.: AIR 1953

SC 244 for the proposition that a deeming provision creates a legal fiction

and ought to be read as it is without worrying about the inevitable

corollaries.

7. The learned counsel appearing on behalf of the respondents submit

that although it is an admitted position that the award in each of these

petitions has been made more than five years prior to the commencement of

the new Act and that compensation has not been paid and also that the

possession has not been taken, the petitioners are yet not entitled to the

benefit of the deeming provisions under section 24 (2) of the new Act since

possession in these cases could not be taken due to interim orders passed by

this Court and because of the fact that possession could not be taken,

compensation has also not been paid.

8. The learned counsel for the respondents also submitted that no party

can be put to a disadvantage because of an act of the Court. Since this Court

had passed interim orders, it cannot work to the disadvantage of the

respondents.

9. We have already set out section 24 of the new Act in its entirety. It is

evident that section 24(2) of the new Act is a non-obstante provision. The

conditions which are required to be satisfied before the deeming provision is

triggered are:-

(i) The award should have been made under section 11 of the old Act, more than five years prior to the commencement of the new act; and

(ii) Physical possession of the land in question should not have been taken; or

(iii) The compensation should not have been paid.

These conditions are unqualified. It does not matter as to what was

the reason behind the non-payment of compensation or for not taking

possession. If the legislature wanted to qualify the above conditions by

excluding the period during which the proceedings of acquisition of land

were held up on account of stay or injunction by way of an order of a Court,

it could have been expressly spelt out. In fact, whenever the legislature

thought that it was necessary to spell out such an intention, it did. An

example of this is to be found in the first proviso to section 19 (7) of the new

Act which is as under:-

"19(7)........Provided that in computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded."

10. Furthermore, it would be instructive to refer to the decision of the

Supreme Court in the case of Pandurang Vinayak (supra) which has been

relied upon by Mr Sethi, the learned senior counsel appearing on behalf of

the petitioners. In that decision the purpose and meaning of a statutory

fiction was being considered. While doing so, the Supreme Court referred to

an English decision in the case of East End Dwelling Co. Ltd. v. Finsbury

Borough Council: (1952) A.C. 109 and in particular to an observation of

Lord Asquith which was to the following effect:-

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. ....The statue says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

11. Following the above observation, it is obvious that the deeming

provision of section 24(2) is a legal fiction which is a created and an

imagined situation. We ought not to be concerned with the inevitable

corollaries that may flow out of it unless there is a clear prohibition in the

statute itself. Once the state of affairs is imagined as real, the consequences

and instances would also have to be imagined as real. Therefore, the fact that

the possession could not have been taken by the respondents because of

interim orders of the Court, would not in any way prevent this Court from

imagining the state of affairs stipulated in Section 24(2) of the new Act. The

only conditions that are required for the deeming provisions to be triggered

are that the award must have been made five years or more prior to the

commencement of the new Act and that either physical possession of the

land has not been taken or that the compensation has not been paid. In fact

in these writ petitions all the conditions stands satisfied. Therefore, the

contention of the learned counsel for the respondent cannot be accepted.

12. In Pune Municipal Corporation (supra), the court dealing with the

provisions of section 24(2) of the new Act held as under:-

"21. .........Under Section 24(2) land acquisition proceedings initiated under the 1894 Act, by legal fiction, are deemed to have lapsed where award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid. The legal fiction under Section 24(2) comes into operation as soon as conditions stated therein are satisfied....."

13. We may point out that in Pune Municipal Corporation (supra) the

Court took the above view even in cases before it where interim orders had

earlier been passed by the Court preventing dispossession of the petitioner

therein from the land sought to be acquired.

14. In Bharat Kumar (supra) also the Supreme court observed that

Section 24(2) of the new Act was a non-obstante clause and that it was a

beneficial provision.

15. The view taken in Pune Municipal Corporation (supra) has been

followed in another three judge Bench decision of the Supreme Court in

Shivraj & Ors. (supra).

16. It is, therefore, clear that the petitioners are entitled to succeed in view

of the deeming provisions of Section 24(2) of the new Act. The acquisition