Khubi Ram Sharma And Ors. vs Lt. Governor And Ors.
2016 Latest Caselaw 1409 Del

$~23

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Judgment delivered on: 22.02.2016

W.P.(C) 3611/2015 & CM No.6438/2015

KHUBI RAM SHARMA AND ORS.                                          ..... Petitioners

                             versus

LT. GOVERNOR AND ORS.                                             ..... Respondents

Advocates who appeared in this case:
For the Petitioner  : Mr Parvinder Chauhan with Mr Nishant Prateek, Advocates.
For the Respondents : Mr Yeeshu Jain with Ms Jyoti Tyagi, Advocates for LAC/L&B
                    Ms Saakshi Agrawal, Advocate for Mr Aditya Parolia, Advocate for
                    DDA.
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 on behalf of

respondent No.3 is taken on record. The learned counsel for the petitioners

does not wish to file any rejoinder affidavit and reiterates the contents of the

writ petition.

2. By way of this writ petition the petitioners are seeking 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 petitioners,

consequently, seek 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.2034/67-68 dated 24.11.1967 was

made, inter alia, in respect of the petitioners' land comprised in Khasra Nos.

511(1-1) measuring 1 bigha 1 biswa in village Shahpur Jat, has lapsed.

3. The affidavit of the respondent No.3 (Land Acquisition Collector)

(South) indicates that the award file is incomplete and the naksha

muntazamin is also not available in the office of the said respondent.

Consequently, it is stated that it could not be ascertained as to whether the

possession of the said land was taken by the said respondent No.3 or not. It

could also not be ascertained as to whether compensation was paid to the

recorded owners or not. The learned counsel for the petitioners drew our

attention to paragraph 8(III) of the affidavit filed on behalf of the respondent

No.4 (Delhi Development Authority). It has been categorically stated in the

said paragraph that physical possession of the land in question had not been

handed over to the DDA by the Land Acquisition Collector/Land & Building

Department, Government of NCT of Delhi. With regard to the compensation

amount, it has been stated in the affidavit of the DDA that the payment was

sent to the Land & Building Department through revolving funds by the

respondent No.4 (DDA). But, there is no evidence of either offer of the

compensation or payment thereof to the recorded owners.

4. In these circumstances, the issue of physical possession would have to

be decided in favour of the petitioners. This is so because the Land

Acquisition Collector has no material available with it to deny the assertion

of the petitioners that physical possession is with the petitioners and has not

been taken over by the Land Acquisition Collector. The learned counsel for

the petitioners also drew our attention to the English translation of the

possession proceedings, a copy of which is at pages 51 and 52 of the paper

book. It has been clearly stated in the possession proceedings that inter alia

possession of Khasra No.511(1-1) could not be taken due to the fact that the

same were built up. This fact, supported further by the statement on behalf

of the DDA that physical possession was not handed over to them by the

Land Acquisition Collector, makes it clear that the physical possession of the

subject land is with the petitioners and has not been taken over by the Land

Acquiring Agency.

5. Since no record of payment of compensation by the Land Acquisition

Collector to the petitioners is available in the office of the Land Acquisition

Collector, the averments made by the petitioners that no compensation has

been offered or received by them would have to be accepted.

6. As a result of this discussion, it is clear that neither the physical

possession of the subject land has been taken by the Land Acquiring Agency

nor has any compensation been paid to the petitioners.

7. The award has also been made more than 5 years prior to the

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

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

Court in, inter alia, the following decisions stand satisfied:-

                  (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;

                  (iv)    Surinder Singh vs. Union of India and Ors.:
                          W.P.(C) 2294/2014 decided 12.09.2014 by this
                          Court.

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

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

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

order as to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J FEBRUARY 22, 2016 st