Delhi High Court
Satish Kumar vs The Honourable Lt. Governor Raj ... on 1 December, 2017
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 1st December, 2017
+ W.P. (C.) No.6351/2014
SATISH KUMAR ..... Petitioner
Through Mr. Dhruv Sharma, Advocate
versus
THE HONOURABLE LT. GOVERNOR RAJ BHAWAN,
DELHI & ORS. ..... Respondents
Through Ms. Deepika, Advocate for
L&B/LAC.
Mr. M.P. Bhargava, Advocate for Mr.
Arjun Pant, Advocate for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. This is a petition filed under Article 226 of the Constitution of India
by the petitioner. The petitioner seeks a writ, order or direction to
declare the acquisition proceedings with respect to the land of the
petitioner comprised in Khasra no.2920/157 having 1/3rd share
measuring 8 biswa; Khasra no.1294 having 1/3rd share measuring 1
bigha 5 biswa; Khasra no.156 having 131/1245th share measuring 1
bigha 9 biswa; Khasra no.158 having 1/3rd share measuring 2 bigha 5
biswa; and Khasra no.193 having 1/3rd share measuring 17 biswa,
situated in the revenue estate of village Mehrauli, New Delhi
(hereinafter referred to as the „subject land‟) is deemed to have lapsed
in view of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013(New Act).
2. Learned counsel for the petitioner submits that the compensation has
not been paid. Counsel for the petitioner submits that the petitioner
would seek compensation as per New Act as it is the stand of the DDA
that the possession has been taken and the land is handed over to the
Horticulture Department for the SFS Scheme.
3. Necessary facts which are required to be noticed for disposal of the
present writ petition are that a Section 4 notification of the Land
Acquisition Act, 1894(hereinafter referred to as the „Act‟) was issued
on 23.01.1965, a Section 6 notification of the Act was issued on
07.12.1966 and an Award bearing no.80-E/70-71(supp.) was passed
on 09.01.1981. The petitioner claims that the petitioner‟s predecessor
in interest, i.e., his father Hari Singh S/o Ramji Lal was the recorded
owner/bhoomidar of the subject land.
4. The counsel for the DDA while relying on the counter affidavit
submits that the possession of the subject land was taken and handed
over to the Horticulture Department. Counsel for the LAC relies on
para 5 of the counter affidavit, wherein it has been stated that the
compensation with respect to the shares of Hari Singh S/o Ramji Lal
are unpaid and deposited in the RD.
5. We have heard the learned counsel for the parties. Para (k) of the
counter affidavit filed by the DDA reads as under:
"k. I say that the possession has been taken over in
accordance with the law and the acquisition proceedings are
complete qua such land as set out and as such the land vests in
the Government free from encumbrance, which includes any
right of the recorded owners of the land, or anyone who is an
alleged possession or encroacher thereafter. It is submitted
that no other person except the Government has any right, title
or interest in the land.
It is submitted that the land in question i.e. Khasra
Nos.2920/157(0-8), 156(1-9), 158(2-05), 193(0-17), 1294(1-
05) situated in village Mehrauli was acquired vide award
no.80E/70-71/Supp. The physical possession of the above
land was handed over to the DDA by the Land Acquisition
Collector, L&B Department on 23.09.1981. The land bearing
Khasra no.2920/157, 156, 158, 193 further transferred to the
Horticulture Department on 23.09.1981, and SFS Scheme on
24.07.1984. The notification under section 22(i) no.F9/(20)78/
L&B/ Vol-II was issued on 19.11.1981."
6. It would also be useful to reproduce para 5 of the counter affidavit
filed by the LAC, which reads as under:
"That the correct facts are that the land in question i.e. khasra
no.2920/157, 1294, 156, 158 and 193 Vill-Mehrauli in which
there are shares of the petitioner was notified under section 4
of LA Act on 23 January 1965 followed by declaration under
section 6 on 07.12.1966 was published for planned
development of Delhi. In pursuance of the said notification,
notices under section 9 and 10 as provided under the Act were
issued to the interested person inviting the claims and claims
were also filed by the interested person. The Land Acquisition
Collector passed Award No.80E/70-71(Supp.) dated
09.01.1981 u/s 11 of the Act. The possession of the land was
taken on 23.09.1981. The compensation with respect to
74/249 shares of Khasra No.156(1-09) has been paid and
compensation with respect to 175/249 shares of Khasra no.156
are unpaid. One third share of khasra no.2920/157(0-08),
158(2-05), 193(0-17) have been paid and two third shares of
Hari Singh S/o Ramji Lal who was the recorded owner are
unpaid."
7. Reading of the counter affidavits filed by the DDA and LAC make it
clear that the possession of the land has been taken over and put to
use. Further, reading of the counter affidavit of the LAC would show
that 175/249 shares of Hari Singh S/o Ramji Jal in respect of Khasra
no.156 and two third shares of Hari Singh S/o Ramji Jal in respect of
Khasra no.2920/157(0-08), 158(2-05), 193(0-17) remained unpaid.
8. The case of the petitioner is fully covered by the decision rendered by
the Supreme Court of India in the case of Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & ors.,
reported at (2014) 3 SCC 183. Paras 14 to 20 read as under:
"14. Section 31(1) of the 1894 Act enjoins upon the
Collector, on making an award under Section 11, to tender
payment of compensation to persons interested entitled
thereto according to award. It further mandates the Collector
to make payment of compensation to them unless prevented
by one of the contingencies contemplated in sub-section (2).
The contingencies contemplated in Section 31(2) are: (i) the
persons interested entitled to compensation do not consent
to receive it (ii) there is no person competent to alienate the
land and (iii) there is dispute as to the title to receive
compensation or as to the apportionment of it. If due to any
of the contingencies contemplated in Section 31(2), the
Collector is prevented from making payment of
compensation to the persons interested who are entitled to
compensation, then the Collector is required to deposit the
compensation in the court to which reference under Section
18 may be made.
15. Simply put, Section 31 of the 1894 Act makes provision
for payment of compensation or deposit of the same in the
court. This provision requires that the Collector should
tender payment of compensation as awarded by him to the
persons interested who are entitled to compensation. If due
to happening of any contingency as contemplated
in Section 31(2), the compensation has not been paid, the
Collector should deposit the amount of compensation in the
court to which reference can be made under Section 18.
16. The mandatory nature of the provision in Section
31(2) with regard to deposit of the compensation in the
court is further fortified by the provisions contained
in Sections 32, 33 and 34. As a matter of fact, Section
33 gives power to the court, on an application by a person
interested or claiming an interest in such money, to pass an
order to invest the amount so deposited in such government
or other approved securities and may direct the interest or
other proceeds of any such investment to be accumulated
and paid in such manner as it may consider proper so that
the parties interested therein may have the benefit therefrom
as they might have had from the land in respect whereof
such money shall have been deposited or as near thereto as
may be.
17. While enacting Section 24(2), Parliament definitely had
in its view Section 31 of the 1894 Act. From that one thing
is clear that it did not intend to equate the word "paid" to
"offered" or "tendered". But at the same time, we do not
think that by use of the word "paid", Parliament intended
receipt of compensation by the landowners/persons
interested. In our view, it is not appropriate to give a literal
construction to the expression "paid" used in this sub-
section (sub-section (2) of Section 24). If a literal
construction were to be given, then it would amount to
ignoring procedure, mode and manner of deposit provided
in Section 31(2) of the 1894 Act in the event of happening
of any of the contingencies contemplated therein which may
prevent the Collector from making actual payment of
compensation. We are of the view, therefore, that for the
purposes of Section 24(2), the compensation shall be
regarded as "paid" if the compensation has been offered to
the person interested and such compensation has been
deposited in the court where reference under Section 18 can
be made on happening of any of the contingencies
contemplated under Section 31(2) of the 1894 Act. In other
words, the compensation may be said to have been "paid"
within the meaning of Section 24(2) when the Collector (or
for that matter Land Acquisition Officer) has discharged his
obligation and deposited the amount of compensation in
court and made that amount available to the interested
person to be dealt with as provided in Sections 32 and 33.
18. 1894 Act being an expropriatory legis lation has to be
strictly followed. The procedure, mode and manner for
payment of compensation are prescribed in Part V (Sections
31-34) of the 1894 Act. The Collector, with regard to the
payment of compensation, can only act in the manner so
provided. It is settled proposition of law (classic statement
of Lord Roche in Nazir Ahmad[1]) that where a power is
given to do a certain thing in a certain way, the thing must
be done in that way or not at all. Other methods of
performance are necessarily forbidden.
19. Now, this is admitted position that award was made on
31.01.2008. Notices were issued to the landowners to
receive the compensation and since they did not receive the
compensation, the amount (Rs.27 crores) was deposited in
the government treasury. Can it be said that deposit of the
amount of compensation in the government treasury is
equivalent to the amount of compensation paid to the
landowners/persons interested? We do not think so. In a
comparatively recent decision, this Court in Agnelo
Santimano Fernandes[2], relying upon the earlier decision in
Prem Nath Kapur[3], has held that the deposit of the amount
of the compensation in the state‟s revenue account is of no
avail and the liability of the state to pay interest subsists till
the amount has not been deposited in court.
20. From the above, it is clear that the award pertaining to
the subject land has been made by the Special Land
Acquisition Officer more than five years prior to the
commencement of the 2013 Act. It is also admitted position
that compensation so awarded has neither been paid to the
landowners/persons interested nor deposited in the court.
The deposit of compensation amount in the government
treasury is of no avail and cannot be held to be equivalent to
compensation paid to the landowners/persons interested. We
have, therefore, no hesitation in holding that the subject land
acquisition proceedings shall be deemed to have lapsed
under Section 24(2) of the 2013 Act."
9. Having regard to the facts noted hereinabove and the stand taken by
the LAC and the DDA in their counter affidavits, we are of the
considered view that the necessary ingredients for the application of
Section 24(2) of the New Act as has been interpreted by the Supreme
Court of India and this Court in the following cases stand satisfied:
(1) Pune Municipal Corporation & Anr. v. Harakchand
Misirimal Solanki & ors., reported at (2014) 3 SCC 183;
(2) Union of India and Ors v. Shiv Raj and Ors., reported at
(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,
W.P.(C).2294/2014 decided on 12.09.2014 by this Court; and
(5) Girish Chhabra v. Lt. Governor of Delhi and Ors;
W.P.(C).2759/2014 decided on 12.09.2014 by this Court.
10. Accordingly, in our view, acquisition proceedings qua the land of the
petitioner stand lapsed. However, as prayed, the petitioner would be
entitled to compensation under the New Act, which would be paid
within a period of one year from today.
11. The writ petition stands disposed of.
G.S.SISTANI, J.
VINOD GOEL, J.
DECEMBER 01, 2017
pst
