Delhi High Court
Ishwar Singh And Ors. vs Union Of India And Ors. on 18 April, 2017
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgement delivered on: 18th April, 2017
+ W.P.(C) 9325/2015 & CM No.21598/2015
ISHWAR SINGH AND ORS.
..... Petitioners
Through : Mr.Sumit Bansal, Adv.
versus
UNION OF INDIA AND ORS.
..... Respondents
Through : Mr.Vijay Joshi and Ms.Meenakshi
Pandey, Advs. for R-1
Mr.Siddharth Pandr, Adv. for
LAC/L&B
Mr.Sanjeev Sabharwal and Mr.Hem
Kumar, Advs. for DDA
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE YOGESH KHANNA
S. RAVINDRA BHAT, J.(Oral)
1. The dispute is qua the land comprising of 1 bigha 0 biswa and
8 biswani, forming part of khasra no.701/486/232(5-02) situated in
revenue estate of Village Jasola, New Delhi. The land is recorded in
the names of Jeet Singh, Sukhdev Singh, Bhim Singh, Jai Singh all
sons of Hardhyan Singh and also in the name of Ishwar Singh son of
Ganpat and late Smt. Jwala Devi. Now that Sukhdev Singh, Bhim
Singh, Jai Singh and Smt. Jwala Devi have since expired, hence the
petitioners No.1 to 12 and the respondents No.4 to 9 claim to be the
owners of the aforesaid land.
2. It is alleged that the subject land is part of a colony known as
Jasola village which is under consideration of the authorities for
regularization under the policy Regularization of Unauthorised
Colony. It is alleged that the physical possession of the land is with
the petitioners.
3. It is stated that the subject land along with the adjoining lands
was sought to be acquired vide notification under Section 4 of the
Land Acquisition Act, 1894 issued on 06.04.1964 for a public
purpose namely the planned development of Delhi. On 07.12.1966 a
declaration under Section 6 of the Act was made and on 19.09.1986
award No.6D/Supl./86-87 was made in respect of the village Jasola.
4. It is the case of the petitioners that neither the physical
possession of the land was taken from them nor they have been paid
or offered any compensation in respect thereof. Hence it is argued
that the declaration made under Section 6 of the Act be declared to
have been lapsed. The petitioners have filed khatoni in the name of
their predecessors, of the years 1982-83 and 1996-97 to claim
ownership.
5. The counter affidavit dated 21.03.2016 of the Land Acquisition
Collector (SE), New Delhi states as under:
"6. That the land in question i.e., Khasra
No.70l/486/232 (05-02) situated at the revenue estate of
village Jasola, New Delhi was notified under section 4 of
Land Acquisition Act on 06.04.1964 followed by
declaration under section 6 of Land Acquisition Act on
07.12.1966 for Planned Development of Delhi. In
pursuance of said notification, notices under section 9 &
10 as provided under the Act, were issued to the
interested persons, inviting the claims from all the
interested persons and claims were also filed by the
interested persons. The then Land Acquisition Collector
passed Award No. 6D/Supl./86-87 dated 19.09.1986
after considering the claims of the claimants.
7. That in the present case, possession of the above
said land was taken over and handed over to the
beneficiary department on 19.08.1997. However, as per
the records compensation was sent to RD. It is pertinent
to mention here that the petitioners have not placed on
record any document to show their title."
6. Further the Director, Land Management, DDA, New Delhi in
his counter affidavit dated 12.02.2016 has stated :
"It is submitted that the possession of the land in
question having been taken over in accordance with law,
the acquisition is complete and the land vests in the
government free from any encumbrance which includes
any right of the prior owners who if continue to be in
possession or encroach thereafter, as alleged by
Petitioner in the present case, having no right therein
and enjoy the possession only as trustee on behalf of the
public at large. Further, the proviso inserted through an
2014 Ordinance amending the 2013 Act provides that in
case the amount of compensation is lying deposited in a
court or any account maintained for this purpose, where
the possession has been taken, as in the present case,
such period shall be excluded while computing the
relevant period. Therefore, the acquisition does not
lapse."
7. The respondents have raised two issues viz., (a) the possession
of the land has since been taken and now it vests with the appropriate
Government and (b) the amount of compensation stood paid as is
lying in RD.
8. Though the petitioner's contend that the possession is still with
them but the respondents have filed on record the possession
proceedings dated 19.08.1997 to show that the land admeasuring 68
bigha - 11 biswa of village Jasola including of Khasra
No.701/486/232(0-5) was taken over by KGO (LA) and handed over
to NT DDA, vacant at site. Now, various modes of taking possession
are discussed in Delhi Development Authority V. Sukhbir Singh 2016
SCC Online SC 929, as under :
"(i) No hard-and-fast rule can be laid down as to what
act would constitute taking of possession of the acquired
land.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a
panchnama will ordinarily be treated as sufficient to
constitute taking of possession.
(iii) ...
(iv) If the acquisition is of a large tract of land, it may
not be possible for the acquiring/designated authority to
take physical possession of each and every parcel of the
land and it will be sufficient that symbolic possession is
taken by preparing appropriate document in the presence
of independent witnesses and getting their signatures on
such document."
9. Since the possession of the subject land has been taken vide
possession proceedings dated 19.08.1997, the petitioners now cannot
allege that the possession is still with them. Nevertheless we do not
agree to the respondents' contention that the amount lying in RD
would mean that the compensation stood paid to the petitioners
herein. Sukhbir Singh (supra) has also laid the modes of payment of
compensation viz.,
"It is only in a situation where the persons interested
refuse consent to receive monies payable, or there be no
person competent to alienate the land, or if there be any
dispute as to title to receive compensation or its
apportionment, is the Collector to deposit the amount of
compensation in the reference court. It is only after these
steps have been taken that the Collector may take
possession of the land, which shall thereupon vest
absolutely in the Government free from all
encumbrances."
10. Thus, the deposit in the RD is a residuary mode of payment
after all necessary efforts have been made by the authorities to secure
the attendance of the persons entitle to receive compensation and it is
only after all such modes have failed that, as a last resort, the money
is then to be deposited in the treasury. Neither the affidavits filed by
the appropriate Government nor their record reveal that the amount
was ever tendered either to the predecessors in interest of the
petitioners or to the petitioners herein prior to taking possession of the
land. The plea of the learned counsel for the DDA that the amount
could not be tendered since there was a dispute among owners is of
no avail as the State was never in dilemma as to who should be paid -
the khatonis reveal the names of the recorded owners. No amount
was ever tendered or paid to them.
11. As the appropriate Government did not tender the
compensation to the predecessors in interest or to the petitioners
herein and as the compensation was never disbursed to them,
therefore, this Court is of the opinion that though the issue of
possession is disputed, but in line with the reasons of Pune
Municipality Corporation & Anr. V. Harakchand Misirimal Solanki
& Ors. (2014) 3 SCC 183, as also Sukhbir Singh (supra) and other
judgments the relief claimed needs to be granted.
12. Thus, the declaration is issued that the acquisition of the share
of the petitioners in khasra No.701/486/232 (5-02) situated in revenue
estate of Village Jasola, New Delhi has lapsed in view of the
provisions of Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
Consequently, the respondents are granted a year's time to take
appropriate suitable action for acquiring the lands.
13. The writ petition and pending miscellaneous applications are
allowed in the above terms.
S. RAVINDRA BHAT, J
YOGESH KHANNA, J
APRIL 18, 2017
VLD
