Alok Shrewala & Anr. vs Union Of India And Ors
2015 Latest Caselaw 470 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                               Judgment delivered on: 19.01.2015

+       W.P.(C) 4115/2003 and CM No.18141/2014


ALOK SHREWALA & ANR.                                   .... Petitioners
                                       versus


UNION OF INDIA AND ORS                                 ..... Respondents

Advocates who appeared in this case:
For the Petitioner  : Mr Ravi Gupta, Senior Advocate with Mr Ajay Gulati, Advocate
For the Respondents : Mr Sanjay Kumar Pathak, Advocate

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

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. In CM No. 18141/2014, we had issued notice. The notice had been

accepted by the learned counsel for respondent No.2 to 4 as also by the learned

counsel for respondent No.5. They had been directed to produce the file

pertaining to the subject land for the purposes of ascertaining whether physical

possession was ever taken and also as to whether compensation had been paid

or not.

2. It transpires now that the physical possession of the subject land could not

be taken because of the operation of the stay order dated 18.06.2003 passed in

this very writ petition. Similarly, the compensation could also not be paid

because of the stay. However, the learned counsel for the petitioner submits

that despite the fact that there was a stay, 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 cannot be denied to the petitioner.

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

as „the 1894 Act‟) was made vide Award No.33/03-04 dated 31.03.2004 and it

was in respect of, inter alia, the petitioners‟ land comprised in Khasra Nos. 32/9

(4-13), 32/10 (4-16), 33/6 (4-16), 33/7 (4-16), measuring 19 bighas 1 biswas

in all in village Holambi Kalan.

4. 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 the stay order passed in this very petition. It is an

admitted position that the stay order continued to operate till 01.01.2014 when

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."

5. The learned counsel for the respondent, however, places reliance on the

Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement (Amendment) Ordinance, 2014, which came

into effect on 31.12.2014 whereby the second Proviso has been added to sub-

section 2 to Section 24 of the 2013 Act. The said plea, however, is no longer

available to the respondents in view of the decision of the Supreme Court in the

case of M/s Radiance Fincap (P) & Ors. v. Union of India & Ors. decided on

12.01.2015 in Civil Appeal No.4283/2011 wherein the Supreme Court has held

as under:

"The right conferred to the land holders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same."

6. It is evident from the above that the Ordinance is prospective and rights

created in favour of the petitioners as on 01.01.2014 are undisturbed by the

virtue of the said Ordinance.

7. 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.

8. 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.

9. The said CM No.18141/2014 and the writ petition are allowed to the

aforesaid extent. There shall be no order as to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J

JANUARY 19, 2015 sv