Ashok Thapar vs Union Of India & Ors.
2015 Latest Caselaw 2910 Del

$~55
        THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Judgment delivered on: 13.04.2015

+       W.P.(C) 255/2015 & CM 393/2015

ASHOK THAPAR                                                     ... Petitioner

                                         versus

UNION OF INDIA & ORS.                                            ... Respondents

Advocates who appeared in this case:-
For the Petitioner         : Mr Robin David with Mr Mohd Iqbal Bhat and
                              Mr Chitranshul Sinha
For the Respondent No.1/UoI : Mr Abhay Prakash Sahay
For the Respondent 2/DDA : Ms Mrinalini S. Gupta with Ms Mrinmoi Chatterjee
For the Respondent Nos.4&5 : Mr Yeeshu Jain with Ms Jyoti Tyagi.

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

                             JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. Mr Yeeshu Jain has handed over the counter-affidavit on behalf of

respondent Nos. 4 & 5. The same is taken on record. The learned counsel for

the petitioner 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 petitioner seeks 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 petitioner,

consequently, seeks 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. 15/1987-88 dated 05.06.1987 was made, inter

alia, in respect of the petitioner's land, comprised in Khasra Nos. 741/2,

741/3/1, 742/1 and 745 measuring 8 bighas and 15 biswas in all, in Village

Chattarpur, 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 petitioner 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 account

maintained for such purposes 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 petitioner 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 would be prospective in operation. A similar provision

introduced under the Ordinance of 2014 was also held to be prospective by

virtue of the Supreme Court decisions in M/s Radiance Fincap (P) & Ors. v.

Union of India & Ors. decided on 12.01.2015 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 petitioner 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.

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 dutt