Delhi High Court
Kailash Kumar Dilwali vs Union Of India & Ors. on 24 May, 2016
$~85
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24.05.2016
+ W.P.(C) 9368/2014 & CM No.21172/2014
KAILASH KUMAR DILWALI ... Petitioner
versus
UNION OF INDIA & ORS. ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Ateev Mathur and Mr A.P.S. Sehgal, Advocates.
For the respondents :Mr Abhay Prakash Sahay, CGSC and Mr Syed Husain Adil,
Advocates for UOI.
Mr Yeeshu Jain and Ms Jyoti Tyagi, Advocates for L&B/LAC
Mr Sanjeev Sabharwal, Standing Counsel and Mr Hem Kumar,
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 on behalf of respondent no. 2 handed over by
Mr Yeeshu Jain is taken on record. The learned counsel for the petitioner
does not wish to file the rejoinder affidavit, in as much as, all the
necessary averments are contained in the writ petition and which are
reiterated in response to the said counter affidavit.
2. 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.36/1980-81 dated 19.06.1980 and 36B/1986-87 were made, inter alia,
in respect of the petitioner's land, comprised in Khasra No. 168/(7-02)
measuring 7 bighas and 2 biswas in all (6 bighas 2 biswas under Award
No. 36/1980-81 and 1 bigha under Award No. 36B/1986-87), in Village
Tuglakabad, New Delhi, shall be deemed to have lapsed.
3. It is the case of the petitioner that the physical possession is with
the petitioner. On the other hand, the learned counsel for the respondents
contend that physical possession of 2 bighas 2 biswas was taken on
03.09.2003 and of 4 bighas on 31.07.2002 by the land acquiring agency.
In respect of the balance 1 bigha of land the LAC is not in a position to
state as to whether physical possession has been taken or not. The learned
counsel for the petitioner has drawn our attention to an order passed by a
Division Bench of this Court in WP(C) 2563-66/2005 which pertains to 2
bighas of the subject land. The order is dated 04.03.2010 and it has been
clearly indicated in the said order (a copy of which is at pages 61 to 67 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 of the
said 2 bighas was 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.13-16 in SLP (C) (22651-22654/2010)
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. It is stated by the learned counsel
for the petitioner that consequent to the said liberty, the present petition
has been filed.
4. From the above narration of facts, it is clear that the physical
possession in respect of the said 2 bighas is with the petitioner. It is also
clear that the petitiner's averment regarding physical possession being
retained in respect of 1 bigha would have to be accepted as the LAC has
no material to controvert it. Possession with regard to the balance 4
bighas is disputed. 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.
9. 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 the treasury.
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, as indicated above either physical
possession of part of the subject land has not been taken or is disputed.
Compensation has not been paid to the petitioner. The Award was made
more than five years prior to the coming into force of the 2013 Act.
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
MAY 24, 2016
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