Delhi High Court

Vijender Kishan Gupta vs Lt. Governor, Nct Of Delhi & Ors on 21 May, 2015

         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 21.05.2015

+       W.P.(C) 8596/2014

TARUN PAL SINGH & ANR                                ...         Petitioners

                        versus

LT. GOVERNOR, GOVT. OF NCT OF DELHI & ORS... Respondent

                                 AND

+       W.P.(C) 2888/2014 & CM 14992/2014, 14994/2014 & 16227/2014
        & CM 9997/2015

RAJENDER KISHAN GUPTA & ORS.                         ...         Petitioners
                        versus


UNION OF INDIA                                       ...         Respondent

+       W.P.(C) 4839/2014 & CM 9662/2014 & CM 9998/2015

SUDHIR KISHAN GUPTA                                   ...        Petitioner
                        versus

LT. GOVERNOR, GOVT. OF NCT OF DELHI,
NEW DELHI AND ORS                                    ...       Respondents


+       W.P.(C) 4462/2014 & CM 8898/2014 & CM 9999/2015



SANJAY GUPTA                                               ...     Petitioner




WP(C) 8596/2014 & ORS                                      Page 1 of 14
                                          versus

LT. GOVERNOR, GOVT. OF NCT OF DELHI & ORS... Respondent

+       W.P.(C) 5559/2014 & CM 13785-13786/2014

VIRENDER KISHAN GUPTA                                              ...       Petitioner

                              versus

LT. GOVERNOR, GOVT. OF NCT OF DELHI & ORS... Respondent

+       W.P.(C) 6017/2014 & CM 17661/2014& CM 10000/2015


SAROJ KUMARI GUPTA & ORS                                           ...       Petitioners
                              versus
LAND ACQUISITION COLLECTOR & ORS                                   ...       Respondents

+       W.P.(C) 6290/2014 & CM 15190/2014 & CM 9992/2015


VIJENDER KISHAN GUPTA                                              ...       Petitioners
                              versus
LT. GOVERNOR, NCT OF DELHI & ORS                                   ...       Respondent
Advocates who appeared in this case:-
For the Petitioner                    : Mr Manish Kaushik in WPC 2888/2014,
                                        4839/2014,4462/2014, 5559/2014 & 6290/2014.
For the Petitioner                    : Mr Samrat Nigam in WPC 6017/2014 & 6017/2014
For the Respondent L&B/LAC            : Mr Yeeshu Jain with Ms Jyoti Tyagi in WPC 2888/14,
                                   4839/2014, 6290/2014 & 8596/2014.
For the Respondent L&B/LAC            : Mr Siddharth Panda in WPC 5559/2014 & 6017/2014.
For the Respondent L&B/LAC            : Mr B. Mahapatra in WPC 4462/2014.
For the Respondent DMRC               : Mr Virender Sood with Mr Anshuman Sood.

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


WP(C) 8596/2014 & ORS                                                   Page 2 of 14
                                JUDGMENT

BADAR DURREZ AHMED, J (Oral)

1. These writ petitions raise common issues and are, therefore, taken up

together. In some of these writ petitions the counter affidavits filed on

behalf of the respondents have been filed after some delay. The applications

for delay are allowed and the delay is condoned. The counter affidavits

would be taken on record. In some other writ petitions, the counter affidavits

filed on behalf of the Land Acquisition Collector were returned with

objections on the ground that the costs which had been imposed had not been

deposited. But applications for waiver of those costs have been moved on

behalf of the Land Acquisition Collector which we are allowing.

Consequently, those counter affidavits shall be taken on record. The

pleadings are complete in W.P.(C) 8596/1994 and since identical issues arise

in all these writ petitions we shall take that as the lead case.

2. The petitioners seek the benefit of the first proviso after 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') as amended by the Right to Fair Compensation and Transparency

in Land Acquisition, Rehabilitation and Resettlement (Amendment)

Ordinance, 2015 (hereinafter referred to as the '2015 Ordinance'). The facts

are that a section 4 notification was issued on 04.06.2009. Powers under

section 17(1) and (4) of the Land Acquisition Act, 1894 (hereinafter referred

to as the '1894 Act') were also invoked. On 11.09.2009, the declaration

under section 6 of the 1894 Act was made. Possession of the lands

pertaining to the present writ petitioners and under the said notification was

taken by the land acquiring agency on 09.10.2009. However, the petitioners

contend that there was non-compliance of the requirements of section 17 and

specifically Section 17(3A) of the 1894 Act which, according to the

petitioners, were conditions precedent for the acquisition. We need not,

however, examine the matter from this perspective as the case ultimately

argued before us was one based on the interpretation of Section 24 of the

2013 Act. On 14.09.2011 Award No. 5/2011-12 was made relating to the

subject lands and other lands which were notified under section 4 on

04.06.2009. As stated above, it is an admitted position that the possession

was taken over by the land acquiring agency and the same had been handed

over to the Delhi Metro Rail Corporation (DMRC). Subsequent to the taking

over of possession, the DMRC has already constructed the Chhatarpur Metro

Station which also includes the electric relay station. In other words, the

land has been fully utilized by the DMRC.

3. It is also admitted that under the said Award, the total compensation

was computed at Rs. 64,09,60,887.57. According to the petitioners, the

compensation so awarded had not been deposited in respect of the majority

of land holdings in the account of the beneficiaries. As such, all the

beneficiaries including the petitioners specified in the notification under

section 4 of the 1894 Act became entitled to compensation in accordance

with the 2013 Act. In the counter affidavits filed on behalf of the Land

Acquisition Collector it has been stated that an amount of

Rs. 13,57,82,562.39 was disbursed as compensation under the said

acquisition. It is, further, stated that a sum of Rs. 1,95,35,917 was also

deposited with the Reference Court under section 30 of the 1894 Act.

Further, a sum of Rs. 5,48,83,355 was also stated to have been sent to the

Reference Court under sections 30-31of the 1894 Act. The learned counsel

for the petitioners point out that even as per the said counter affidavits it is

evident that a total sum of approximately Rs. 21 crores only is said to have

been paid towards compensation. Without going into the issue as to whether

the amount was deposited in the account of the beneficiaries or not, the

learned counsel for the petitioners submit that it is evident that the sum of

Rs. 21 crores does not represent the compensation in respect of majority of

land holdings where the total compensation was approximately Rs. 64

crores.

4. The case of the petitioners is that the said first proviso would fully

apply and therefore they are entitled to compensation under the 2013 Act.

The learned counsel for the respondents submitted that the said first proviso

would not be applicable inasmuch as the case of the petitioners does not fall

under section 24(2) of the 2013 Act. Because, according to them, the Award

was made less than five years prior to the commencement of the 2013 Act.

Therefore, the petitioners would be governed by the provisions of section

24(1)(b) of the 2013 Act and as such the acquisition proceedings would

continue under the provisions of the 1894 Act as if the same had not been

repealed.

5. Before we proceed to analyse the rival arguments, it would be relevant

to set out section 24 of the 2013 Act as amended by the 2015 Ordinance.

The same reads as under:-

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases -

(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),--

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.

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."

6. It is evident that under section 24(1), two situations are set out. One

where no award has been made under section 11 of the 1894 Act and the

other where an award has been made under section 11 of the said Act.

Insofar as the latter case is concerned, section 24(2) provides an exception

and it begins with a non-obstante clause. In other words, in cases where

Awards have been made under section 11 of the 1894 Act, another sub-

category of Awards has been carved out by virtue of section 24(2) and those

relate to Awards which had been made more than five years prior to the

commencement of the 2013 Act, that is, more than five years prior to

01.01.2014. In such cases, that is, where the Awards have been made more

than five years prior to the commencement of 2013 Act, if physical

possession of the land in question has not been taken or compensation has

not been paid, the acquisition proceedings are deemed to have lapsed. [see:

(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].

7. It is, therefore, clear that in those cases where the Awards have been

made more than five years prior to the commencement of the Act, section

24(2) would have applicability, subject to the other conditions being

fulfilled. But, in cases where the Awards have been made within five years

of the commencement of the 2013 Act, section 24(2) would not apply. It is

also clear that once the conditions of section 24(2) are met, the acquisition

itself lapses and therefore no occasion would arise for invoking the first

proviso which is set out after section 24(2). This is so because the first

proviso entails a situation where the acquisition is saved but the

compensation is awarded under the 2013 Act. The proviso cannot blow life

into the acquisition which has lapsed under the main provision of sub-section

(2) of Section 24 of the 2013 Act. It is for this reason that we think that the

first proviso which has been placed after section 24(2) is not really a proviso

to section 24(2) but, a proviso to Section 24(1)(b). The said first proviso and

Section 24(1)(b) can easily be read together. Section 24(1)(b) in effect

relates to all cases where awards have been under the 1894 Act except those

which are covered under Section 24(2). Clearly, awards made less than five

years prior to the commencement of the 2013 Act would fall under Section

24(1)(b). As such, the general rule in such cases is that the provisions of the

1894 Act would continue to be applicable, as if the 1894 Act had not been

repealed. However, the said first proviso carved out an exception to this

general rule by providing that in cases where compensation in respect of a

majority of land holdings has not been deposited in the account of the

beneficiaries, then, all beneficiaries specified in the notification for

acquisition under Section 4 of the 1894 Act shall be entitled to compensation

in accordance with the provisions of the 2013 Act. This is a provision for

the benefit of landowners inasmuch as even in cases of completed

acquisitions, if the conditions stipulated under the said first proviso stand

satisfied, the compensation would have to be provided under the more

beneficial provisions of the 2013 Act.

8. Thus, while the said first proviso can harmoniously exist when read as

a proviso to Section 24(1)(b), it cannot so exist when sought to be read as a

proviso to Section 24(2) of the 2013 Act.

9. In Sree Balaji Nagar (supra) while dealing with the said first proviso

after Section 24(2) of the 2013 Act, the Supreme Court observed as under:-

"11. .... There is nothing in the language of the proviso to restrict the meaning of the words used in Section 24(2) mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years' old but the physical possession of the land has not been taken over or the compensation has not been paid. The law is trite that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms, as held by Privy Council in the case of Madras and Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality AIR 1944 PC 71 and by this Court in the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR 1959 SC 713."

10. In Surender Singh (supra) this Court also had occasion to deal with

submissions with regard to the said first proviso. This Court observed as

under:-

"7. ....Furthermore, the proviso after Section 24(2) of the 2013 Act does not, in any manner, restrict the meanings of the words used in Section 24(2) which clearly mandate that the proceedings shall be deemed to have lapsed if the award has been made five years or more prior to the commencement of the 2013 Act but the physical possession of the land has not been taken over or the compensation has not been paid. The Supreme Court in Sree Balaji Nagar (supra) specifically dealt with the proviso and came to the above conclusion and in doing so also noted that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms.

8. Mr Sanjay Poddar, senior advocate, appearing for the Land Acquisition Collector, sought to distinguish the Supreme Court decision in Pune Municipal Corporation (supra) by

contending that the question before the Supreme Court in that case was limited to the expression 'compensation has not been paid' as appearing in section 24(2) of the 2013 Act. We are afraid we cannot read any such limitation into the clear and unequivocal observations of the Supreme Court which have been set out above. Moreover, the same have been reiterated and reinforced by the Supreme Court in its subsequent decisions in Shiv Raj (supra) and Sree Balaji Nagar (supra).

9. Mr Poddar also sought to contend that the proviso after section 24(2) of the 2013 Act ought to be construed as a saving clause. If so construed, the proviso saves the position existing on the commencement of the 2013 Act, implying thereby that if the majority of the landholders have received the compensation then the 1894 Act would apply. If not, then all would be entitled to compensation under the 2013 Act. Such an argument has to be stated to be rejected as it runs contrary to the clear provisions of deemed lapsing contained in section 24(2) of the 2013 Act. As held in Sree Balaji Nagar (supra) "there is nothing in the language of the proviso to restrict the meaning of the words used in section 24(2) mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years' old but the physical possession of the land has not been taken over or the compensation has not been paid."

10. Mr Rakesh Khanna, senior advocate, appearing on behalf of the DDA sought to argue that the proviso would have to be considered even in cases which clearly fall within Section 24(2) of the 2013 Act because there is a colon which separates the main part of Section 24(2) and the proviso. It was contended that the proviso, therefore, has to be read as part of Section 24(2) and not as a proviso. We are afraid that this argument is also not available to the respondents in view of the clear conclusion of law set out by the Supreme Court in the case of Sree Balaji Nagar (supra). Even otherwise, the argument is merely to be stated to be rejected."

11. Coming back to the facts in the present petitions, we find that the

Awards were made within the period of five years prior to the

commencement of the 2013 Act. Clearly, section 24(2) does not apply. On

the other hand, section 24(1)(b) would apply. But, the exception carved out

by the first proviso which has been placed after section 24(2) would also

apply. This is so because compensation in respect of the majority of land

holdings has not been deposited in the account of the beneficiaries. This is

an admitted fact. The consequence of this would be that all the beneficiaries

which include the petitioners herein who have been specified in the

notification under section 4 of the 1894 Act would be entitled to

compensation in accordance to the provisions of the 2013 Act. It is held

accordingly.