Jai Bhagwan Yadav And Ors. vs Union Of India And Ors
2015 Latest Caselaw 9310 Del

$~97

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                Judgment delivered on: 15.12.2015

+       W.P.(C) 2801/2015 & CM No. 5003/2015


JAI BHAGWAN YADAV AND ORS.                                       .... Petitioners
                                       versus
UNION OF INDIA AND ORS                                          ..... Respondents

Advocates who appeared in this case:

For the Petitioner     : Mr Dinesh Kumar Garg, Mr Deepak Mishra, M Parv K. Garg and Mr
                         Dhananjay Garg, Advocates

For the Respondents : Mr Santosh Kohli, CG Sr. Counsel for R-1/UOI
                      Mr Yeeshu Jain and Ms Jyoti Tyagi, Advocates for L&B/LAC


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

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. The counter affidavit handed over by Mr Yeeshu Jain appearing on behalf

of the respondent no. 3 is taken on record. The learned counsel for the

petitioners does not wish to file any rejoinder affidavit as the necessary

averments are already contained in the writ petition.

2. 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. A declaration is sought to the effect that the

acquisition proceeding, which is the subject matter of the present writ petition,

ought to be deemed to have lapsed in view of Section 24(2) of the 2013 Act.

3. The Award under the Land Acquisition Act, 1894 (hereinafter referred to

as „the 1894 Act‟) was made vide Award No.13/2005-06 dated 12.07.2005 and

it was in respect of, inter alia, the petitioner‟s land comprised in Khasra Nos.

2/17 (4-16), 2/18 (4-16), 2/19 (4-16), 2/20 (4-16), 2/24 (4-16), 3/16 (4-09), 3/17

(1-09), 2/23/1 (2-02), 2/23/2 (2-14) measuring 34 bighas 13 biswas in all in

Begumpur, Delhi-110086.

4. At this juncture, we may point out that there is some discrepancy in

paragraph No. 1 and the prayer clause with regard to the extent of the land.

However, the learned counsel for the petitioner has stated that the description

given in the affidavit of the DDA is correct and that is what has been mentioned

above.

5. It is an admitted position that the physical possession of the subject land

has not been taken by the land acquiring agency. However, the learned counsel

for the respondents contend that the physical possession could not be taken

because of the operation of a stay order passed in W.P.(C) No.20016-35/2005.

The said order continued to operate till 09.07.2007 when the writ petition was

dismissed. Thereafter, SLP bearing No. 17274/2007 was filed before the

Supreme Court. A stay order had been granted by the Supreme Court in that

matter and ultimately the SLP was dismissed on 11.02.2015. We may point out

that, prior to that, on 01.01.2014, the 2013 Act came into effect. This aspect of

the matter concerning the submission that possession could not be taken because

of the operation of the stay order and that in such a situation the respondents

should not be prejudiced, was considered by this Court in the case of Jagjit

Singh & Ors. vs. UOI & Ors: W.P.(C) 2806/2004 and other connected matters

which were decided by this Court on 27.05.2014. In that decision, this Court

observed as under:-

"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."

6. As a consequence, it has to be held that the respondents did not take

physical possession of the subject land. With regard to the element of

compensation, it is an admitted position that compensation has not been paid in

respect of the said land. The Award was also made more than five years prior to

the commencement of the 2013 Act. Therefore, all the ingredients of Section

24(2) of the 2013 Act as interpreted by the Supreme Court and this Court in the

following decisions stand satisfied:-

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

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

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

(4) Surender Singh v. Union of India & Others: WP(C) 2294/2014 decided on 12.09.2014 by this Court; and

(5) Jagjit Singh & Ors. vs. UOI & Ors: W.P.(C) 2806/2004 decided on 27.05.2014.

7. As a result, the petitioners are entitled to a declaration that the said

acquisition proceedings initiated under the 1894 Act in respect of the subject

land are deemed to have lapsed. It is so declared.

8. The writ petition is allowed to the aforesaid extent. There shall be no

order as to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J

DECEMBER 15, 2015 rs