Harinder Kaushik vs Union Of India And Ors.
2017 Latest Caselaw 6941 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI
     %                           Date of decision: 4th December, 2017

+      W.P.(C) 6104/2016

HARINDER KAUSHIK                                              ..... Petitioner
                                 Through:    Mr. Arun K. Sharma and Mr. Amiet
                                             Andley, Advs.

                        versus

UNION OF INDIA AND ORS.                                        ..... Respondents
                  Through:                   Mr. Anuj Aggarwal with Ms.
                                             Deboshree Mukherjee, Adv. for R1.
                                             Mr. Siddharth Panda, Adv. for
                                             LAC/L&B.
                                             Mr. Shantanu Sagar, Mr. Prashant
                                             Ranjan Raj and Mr. Sashwat Anand,
                                             Advs. for R2.

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V. KAMESWAR RAO

G.S.SISTANI, J (ORAL)

1.     With the consent of the parties, the writ petition is set down for final
hearing and disposal.

2.     This is a petition filed under Article 226 of the Constitution of India by
the petitioner. Petitioner seeks a declaration that the acquisition proceedings
with respect to the land comprised in Khasra No. 47/13/2 (3-4), 47/18 (4-10),
47/19 (4-16) and 47/20 (4-16) measuring 3 Acre 3 Bighas and 4 biswas (17-
12) (to the extent of ½ share of petitioner) and Khasra No. 47/23 (4-16),
47/24/1 (2-16), 55/3 (4-16), 55/4 (4-16), 55/5 (4-16) and 56/1/1 (2-8)
measuring 14 bighas and 8 biswas (to the extent of 1/10 share of petitioner)


W.P.(C) No. 6104/2016                                                       Page 1 of 7
 situated in the revenue estate of village Devli, Tehsil-Saket, District South,
New Delhi (hereinafter referred to as „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), as neither the compensation has been paid nor possession
has been taken over.

3.     In this case, notification under Section 4 of the Land Acquisition Act,
1894 (hereinafter referred to as the „Act‟) was issued on 5th November, 1980,
a Section 6 notification of the Act was issued on 6th June, 1985 and Award
bearing no. 19/87-88 was passed.

4.     Learned counsel for the petitioner submits as the possession of the
subject land has not been taken nor compensation paid, the case of the
petitioner fully covered by the decision rendered by the Supreme Court of
India in the case of Pune Municipal Corporation & Anr. V. Harak Chand
Misirimal Solanki & Ors(2014) 3 SCC 183 and other decisions as detailed
below to submit that the acquisition proceedings would lapse:

           (1) Union of India and Ors v. Sshiv Raj and Ors., reported
               at (2014) 6 SCC 564;
           (2) Sree Balaji Nagar Residential Association v. State of
               Tamil Nadu and Ors, Civil Appeal no.8700/2013
               decided on 10.09.2014;
           (3) Surender Singh v. Union of India & Others,
               W.P.(C).2294/2014 decided on 12.09.2014 by this
               Court; and
           (4) Giri Chhabra v. Lt. Governor of Delhi and Ors;
               W.P.(C).2759/2014 decided on 12.09.2014 by this Court.

5.     Counsel for the petitioner has also drawn the attention of the Court to
Para 8 of the counter-affidavit filed by the respondent LAC wherein the
respondent has fairly admitted that possession of the land in question was not

W.P.(C) No. 6104/2016                                                   Page 2 of 7
 taken over and status of payment could not be ascertained as the statement
"A" is not available.

6.     We have heard the learned counsel for the parties.

7.     The basic facts are not disputed as far as the issuance of Notification
under Section 4 on 5th November, 1980, Notification under Section 6 on 6th
June, 1985 and passing of Award bearing no. 19/87-88. Para 8 and 9 of the
counter-affidavit reads as under:
            "8. That in the present case, the possession of the land
            of the petitioner was not taken over and status of
            payment of compensation could not be ascertained as
            the statement "A" is not available.
            9. That the status of the amount of compensation as per
            the Naksha Muntzim in respect of the aforesaid land is
            as under:-
       S.No                  NAMES             AMOUNT          REMARKS
          .

       1.                  Jagdish Singh     1467266.53
       2.                  Dharamveer        1467266.53 There is no
                           Singh                             mentioned in
       3.                  Ajit Singh        1467266.53 the          Naksha
       4.                  Sri Pal           107429.61       Muntazmin as
       5.                  Kitab Kor         107429.61       to whether any
       6.                  Ramvati           107429.61       payment has
       7.                  Gyanvati          107429.61       been made or
       8.                  Sahro             107429.61       not
       9.                  Shab singh        429728.45
                                                                              "

8. We also note that in Para VI of the counter-affidavit filed by the respondent DDA it is also confirmed that physical possession of the land has not been taken over by the DDA.

9. The reading of the counter-affidavit clearly shows that possession of the land in question has not been taken nor compensation has been tendered

to the petitioner. In the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at 2014 3 SCC 183, the Supreme Court of India in paras 14 to 20 held 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, 33and 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 legislation 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.

10. For the reasons stated above, 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. Sshiv 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) Giri Chhabra v. Lt. Governor of Delhi and Ors; W.P.(C).2759/2014 decided on 12.09.2014 by this Court.

11. In view of the discussion above, the petitioner is entitled to a declaration that the acquisition proceedings with respect to the subject land are deemed to have lapsed. It is so declared.

Accordingly, the writ petition is disposed of.

G.S.SISTANI, J

V. KAMESWAR RAO, J

DECEMBER 04, 2017/jg