Delhi High Court
Kanwar Singh vs Union Of India & Ors. on 11 December, 2017
$~48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 11th December, 2017
+ W.P.(C) 6245/2017
KANWAR SINGH ..... Petitioner
Through: Ms.Richa Oberoi, Ms.Sumi Anand
and Mr.Prateek Kohli, Advocates
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Jyoti Tyagi, Adv. for LAC/L&B.
Mr.Sanjeev Sabharwal, Standing
counsel for DDA with Mr.Hem
Kumar and Ms.Simmee Kumari,
Advts.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
1. Counter affidavits have been handed over in Court by learned counsels
for the DDA and LAC. The same are taken on record. Copies of the
same have been supplied to the counsel for the petitioner.
2. With the consent of the parties, the present writ petition is set down
for final hearing and disposal.
3. This is a petition under Article 226 of the Constitution of India. The
petitioner seeks a declaration that the acquisition proceedings in
respect of the land bearing Khasra No.98 min (2-14) and 99 (2-13)
total admeasuring 5 bighas and 7 biswas situated in the revenue estate
of Village Haiderpur, New Delhi are deemed to have lapsed in view of
the fact that neither possession of the land has been taken nor
compensation has been paid.
4. The necessary facts to be noticed for disposal of this writ petition are
that Section 4 notification of the Land Acquisition Act, 1894
(hereinafter referred to as „the Act‟) was issued on 24.10.1961.
Sections 6 notification was issued on 06.12.1966. An Award was
pronounced on 18.07.1980. It is the case of the petitioner that neither
the possession has been taken nor compensation has been paid. Hence,
the case of the petitioner would be fully covered by the decision
rendered by the Apex Court in Pune Municipal Corporation & Anr.
v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC
183.
5. We have heard learned counsel for the parties.
6. The counsel for the petitioners submits that since the compensation
has not been tendered nor possession of the land has been taken over,
the petitioner would be entitled to a declaration and compensation
under Section 24 (2) of the Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013
(hereinafter referred to as "the New Act"). In support of the aforesaid
submission learned counsel has relied on para 4 of the counter
affidavit filed by the LAC, which reads as under:
"4. That it is submitted that for purpose of planned
development of Delhi, the answering respondent issued a
Notification u/s 4 of the Land Acquisition Act, 1894 on
24.10.1961 which was followed by Notification u/s 6 of
the said Act dated 6.12.1966 in village Haiderpur. That
an Award No.50/80-81 was also passed however
possession of the subject land could neither be taken nor
the compensation be paid as per revenue records."
7. The reading of the abovesaid paragraph of the counter-affidavit clearly
shows that possession of the land in question has not been taken nor
compensation has been tendered to the petitioners. As far as the
present Khasra number is concerned, counsel for the DDA also
submits that possession has not been handed over to them.
8. Having regard to the statement made and stand taken by the
respondents in their counter affidavits, we are of the view that 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
(supra). 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 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."
9. 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. In view of the discussion above, the petitioner is entitled to a
declaration that the acquisition proceedings initiated under the Land
Acquisition Act, 1894 with regard to the subject land are deemed to
have lapsed. It is so declared.
11. The writ petition stands disposed of. No orders as to costs.
G.S.SISTANI, J
V. KAMESWAR RAO, J
DECEMBER 11, 2017/rb
