Bakshi Ram & Sons (Huf) vs Union Of India & Ors.
2015 Latest Caselaw 6021 Del

$~31

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 18.08.2015

+       W.P.(C) 3160/2015 & CM No.5627/2015


BAKSHI RAM & SONS (HUF)                                         ... Petitioner

                                        versus

UNION OF INDIA & ORS.                                           ... Respondents
Advocates who appeared in this case:
For the Petitioners          : Ms Richa Oberoi, Advocate.
For the respondents          :Mr Jitendra Kumar Tripathi, Advocate for respondent
                              No.1.
                              Mr Sanjay Kumr Pathak with Mr Sunil Kumar Jha and
                             Mr Kaushal Raj Tater, Advocates for respondent No.2.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                             JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. 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.66/1986-87 dated 19.09.1986 was made, inter alia, in respect of the

petitioner's land, comprised in Khasra No. 2609/727-728 (5-01)

measuring 5 bighas and 1 biswa in all, in Village Tuglakabad, New Delhi,

shall be deemed to have lapsed.

2. It is the case of the petitioner that the physical possession is with

the petitioner (HUF). On the other hand, the learned counsel for the

respondents contend that physical possession of the same was taken over

by the land acquiring agency on 22.09.1986. However, the learned

counsel for the petitioner has drawn our attention to an order passed by a

Division Bench of this Court in WP(C) 1907/1986 which pertains to the

subject land. The order is dated 03.02.2010 and it has been clearly

indicated in the said order (a copy of which is at pages 40 to 46 of the

paper book) that it cannot be said that the physical possession stood taken

over by the respondents so as to deprive the petitioners therein of

consideration of their application under Section 48 of the 1894 Act on

merits. It is evident from the said order that physical possession is

retained by the petitioner because otherwise the question of any

consideration under Section 48 of the 1894 Act would not have arisen at

all. The learned counsel for the petitioner also informed us that the

parties had filed a special leave petition before the Supreme Court which

is still pending. In the said proceedings before the Supreme Court, the

petitioner had filed IA No.3 in SLP (C) (26831/2010) seeking the benefit

of the provisions of Section 24(2) of the 2013 Act. However, that

application was withdrawn with liberty to seek appropriate legal recourse

in accordance with law. The Supreme Court granted permission for

withdrawal of the said application. It is stated by the learned counsel for

the petitioner that consequent to the said liberty, the present petition has

been filed.

3. From the above narration of facts, it is clear that the physical

possession is with the petitioner. As regards compensation, it is the case

of the respondents that the same has been deposited in the treasury though

it has not been paid to the petitioner nor was it offered to the petitioner.

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 designated 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 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 same would apply to the said Ordinance of 2015. 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

AUGUST 18, 2015 st