Phool Kumar & Ors vs Union Of India & Ors
2015 Latest Caselaw 2907 Del

$~34

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 13.04.2015

+       W.P.(C) 8381/2014


PHOOL KUMAR & ORS.                                              ... Petitioners

                                        versus

UNION OF INDIA & ORS.                                           ... Respondents

Advocates who appeared in this case:
For the Petitioners                    : Mr Anand Yadav
For the Respondent DDA                 : Mr Sanjeev Sabharwal
For the Respondent LAC/L&B             : Mr Siddharth Panda




CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                             JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The learned counsel for the respondent has handed over the counter

affidavit on behalf of respondent nos.2 & 3. The same is taken on record.

The learned counsel for the petitioners does not wish to file any rejoinder

affidavit inasmuch as the averments contained in the writ petition would

be relied upon.

2. By way of this writ petition the petitioners seek the benefit 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 "2013 Act") which came into effect on 01.01.2014. The

petitioners, consequently, seek a declaration that the acquisition

proceeding initiated under the Land Acquisition Act, 1894 (hereinafter

referred to as the "1894 Act") and in respect of which Award No.

33/1986-87 dated 19.09.1986 was made, inter alia, in respect of the

petitioners' land, comprised in Khasra Nos. 944/2 (2-01) and 959/2 (2-17)

measuring 4 bighas and 18 biswas in all, in Village Mahipalpur, New

Delhi, shall be deemed to have lapsed.

3. In this case, it has been admitted by the concerned Land

Acquisition Collector that physical possession of the subject land has not

been taken. This is evident from the counter-affidavit filed on behalf of

the concerned Land Acquisition Collector. It is, however, contended by

the learned counsel for the respondents that the amount of compensation

in respect of the same was deposited in the treasury, though the same has

not been paid to the land owner nor was it offered to the land owner.

4. The learned counsel for the respondents placed reliance on the

second proviso to Section 24(2) of the 2013 Act, which has been

introduced by virtue of the Right to Fair Compensation and Transparency

in Land Acquisition, Rehabilitation and Resettlement (Amendment)

Ordinance, 2015 (hereinafter referred to as the "said Ordinance"). The

newly added proviso reads as under:-

"Provided further that in computing the period referred to in this sub-section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a Tribunal for taking possession or such period where possession has been taken but the compensation lying deposited in a court or in any designated account maintained for this purpose shall be excluded."

(underlining added)

5. On a plain reading of the proviso, it is evident that its purpose is to

compute the period of five years referred to in Section24(2) of the 2013

Act. Certain periods are to be excluded in computing the said period

referred to in Section 24(2) of the 2013 Act. The periods to be excluded

are:

(1) the period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court; or (2) the period specified in the Award of a Tribunal for taking possession; or (3) such period where possession has been taken but the compensation is lying deposited in a court or in any designated account maintained for this purpose.

6. The learned counsel for the respondents are relying on the third

alternative inasmuch as it has been contended that the amount for

compensation has been placed in the government treasury. According to

the learned counsel for the respondents, this amounts to deposit "in any

designated account maintained for this purpose". Consequently, it is

urged that the entire period during which this amount was lying in the

treasury ought to be excluded.

7. The learned counsel for the petitioners contends that the newly

added proviso does not have any application to the facts prevailing in the

present case. The question of compensation lying deposited in a court or

in any designated account maintained for such purpose would only arise

in a case where possession has been taken. In the present case,

admittedly, the possession has not been taken. This being the situation,

the newly inserted proviso has no application. We agree with the

submission made by the learned counsel for the petitioners that unless

and until possession is taken, the third alternative mentioned in the

second proviso does not get triggered even though compensation may be

lying deposited in a court or in any designated account maintained for

such purposes.

8. In any event, the second proviso to Section 24(2) introduced by

virtue of the said Ordinance of 2014 has been held to be only prospective

in operation by virtue of the Supreme Court decisions in M/s Radiance

Fincap (P) & Ors. v. Union of India & Ors. decided on 12.1.2015 in

Civil Appeal No.4283/2011 and Karnail Kaur & Ors. Vs. State Of

Punjab & Ors. decided on 22.1.2015 in Civil Appeal no.7424 of 2013.

The rights vested in the petitioners as on 01.01.2014 by virtue of the 2013

Act have not been taken away by virtue of the introduction of the second

proviso to Section 24(2) of the said Ordinance. The same would apply to

the said Ordinance of 2015 also.

9. That being the position, the question of payment of compensation

will have to be construed in the light of the various decisions rendered by

the Supreme Court and this Court in:-

(i) Pune Municipal Corporation and Anr v. Harakchand Misirimal Solanki and Ors: (2014) 3 SCC 183;

(ii) Union of India and Ors v. Shiv Raj and Ors: (2014) 6 SCC 564;

(iii) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and Ors: Civil Appeal No. 8700/2013 decided on 10.09.2014; and

(iv) Surender Singh v. Union of India and Ors.: W.P.(C) 2294/2014 decided 12.09.2014 by this Court.

In Pune Municipal Corporation (supra) it has been held that unless and

until the compensation was tendered to the persons interested, mere

deposit of the compensation amount in a court would not amount to

payment of compensation. This aspect has also been considered in

Gyanender Singh & Others v. Union Of India & Others: WP (C)

1393/2014 decided by a Division Bench of this Court on 23.09.2014. The

same would be the position in respect of a deposit in "any designated

account maintained for this purpose". Consequently, the mere deposit in

the treasury, without being offered or tendered to the persons entitled

would not ipso facto amount to payment of compensation.

10. As such, in the present case, neither physical possession of the

subject land has been taken nor has any compensation been paid to the

petitioner. The Award was made more than five years prior to the coming

into force of the 2013 Act. No period is liable to be excluded inasmuch as

the second proviso, which has been newly inserted by virtue of the said

Ordinance, is not applicable, as indicated above.

11. As a result, the petitioner is entitled to a declaration that the said

acquisition proceedings initiated under the 1894 Act in respect of the

subject lands are deemed to have lapsed. It is so declared.

12. The writ petition is allowed to the aforesaid extent. There shall be

no order as to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J

APRIL 13, 2015 kb