Delhi High Court
Mohd Abul Fazal Farooqi vs Union Of India And Ors on 5 December, 2017
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05th December, 2017
+ W.P.(C) 11423/2016
MOHD ABUL FAZAL FAROOQI ..... Petitioner
Through: Mr. S.K. Rout, Adv.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Yeeshu Jain, Standing Counsel
for LAC/ L&B with Ms. Jyoti Tyagi,
Adv.
Mr. Dhanesh Relan and Ms. Gauri
Chaturvedi, Advs. for DDA
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
1. Counter affidavit has been handed over in Court by Mr. Jain, learned
Standing Counsel for LAC. The same is taken on record. Copy is
supplied to Mr. Rout.
2. With the consent of the learned counsel for parties, the petition is set
down for final hearing and disposal.
3. This is a petition under Article 226 of Constitution of India filed by the
petitioner seeking a declaration that the acquisition proceedings with
respect to the land measuring 5 bighas 18 biswa bearing Khasra No.
235 (05-18), Village Okhla, District South-East, New Delhi
(hereinafter referred to as „subject land‟) is deemed to have been lapsed
in view of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (hereinafter referred to as „New Act‟), as neither possession
of the land has been taken over nor compensation has been paid.
Counsel for the petitioner submits that the land acquisition collector
has also stated in Para 6 of the counter-affidavit that the possession has
not been taken and compensation has not been paid as Statement „A‟
and Naksha Muntazamin is not traceable.
4. Mr. Jain, learned counsel for the LAC relies on Para 6 of the counter-
affidavit. Additionally, he submits that the petitioner is only a
cultivator and is not entitled to the relief so claimed by him.
5. We have heard the learned counsel for the parties. In this case, a
notification under Section 4 of the Land Acquisition Act, 1894 was
issued on 23.06.1989, Sections 6 and 17 notification was issued on
22.06.1990. An award was announced on 19.6.1992 being Award No.
17/1992-93.
6. The stand of the LAC is reflected in Para 6 of the counter affidavit,
which reads as under:-
„That it is submitted that the physical possession of the
lands under reference could not be taken as details of
khasra no. 235 not mentioned in kabza karyawahi as the
original Award file is not traceable in the office of
answering respondent however the possession
proceedings dated 11.1.2012 and 31.12.2013 does not
find mention of subject khasra number. The status of
compensation could not be informed as statement „A‟ and
Naksha Muntazamin is not traceable in the office of
answering respondent and present information is
furnished on basis of photocopies of available record/
documents.‟
7. In response to the objection raised by Mr. Jain with regard to the
ownership of the land, Mr. Rout contends that the petitioner is lawful
owner and would fall within the definition of an „interested person‟ as
per the „New Act‟. Mr. Rout has further drawn attention of the Court to
Pages 31, 32 and 33 of the paper book in support of the submissions
that the petitioner is the lawful owner based on a judgment and decree
passed by Sub-Judge, Delhi in suit No. 74/83 dated 21.04.1984,
wherein Khasra No. 235 has been mentioned. He further submits that
based on this decree which has attained finality, the land stands
mutated in his name. He submits that the case of the petitioner would
be covered by the decision rendered by the Supreme Court of India in
the case of Pune Municipal Corporation & Anr. V. Harak Chand
Misiri Mal Solanki & Ors., (2014) 3 SCC 183, more particularly,
paragraphs 14 to 20 of the judgment, which reads 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."
8. Taking into consideration the submissions made and the stand taken by
the LAC, we are of the view that the case of the petitioner is fully
covered by the decision rendered in the case of Pune Municipal
Corporation & Anr. (Supra), as neither possession of the land has
been taken nor compensation has been paid. We find no force in the
submissions made by the Mr. Jain with regard to the ownership of the
land in view of the decree passed by the Civil Court and the fact that
the name of the petitioner stands mutated in the revenue record.
Accordingly, the present petition is allowed. We declare that the
acquisition proceedings with respect to the subject land stands lapsed.
9. This petition is disposed of.
G.S.SISTANI, J
V. KAMESWAR RAO, J
DECEMBER 04, 2017/P
