Hari Prakash & Ors vs Union Of India & Ors
2017 Latest Caselaw 7324 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Date of decision: 19th December, 2017


+      W.P.(C) 9053/2014

HARI PRAKASH & ORS                                        ..... Petitioners
                 Through:                Ms. Pooja Yadav, Adv.

                        versus

UNION OF INDIA & ORS                                       ..... Respondents
                   Through:              Mr. Siddharth Panda, Adv. for
                                         L&B/LAC.
                                         Mr. Pawan Mathur, Standing Counsel
                                         for DDA.
                                         Mr. Chandra Prakash, Adv. with Mr.
                                         Sanjay Kummar, SS of Legal, DMRC.

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, present petition is set down for final hearing and disposal. This is a petition under Article 226 of the Constitution of India filed by the petitioners seeking a declaration that the acquisition proceedings with respect to the land of the petitioners comprised in Khasra no. 166/2 measuring 3 Bighas and 18 Biswas, Khasra No. 23/2 measuring 1 Bigha and 4 Biswas, Khasra No. 24 measuring 4 Bighas 00 Biswas, Khasra No. 165/2 measuring 1 Bigha and Khasra No. 165/1 measuring 16 Biswas wrongly typed in the writ petition as 3 Bighas and 16 Biswas situated in the revenue estate of Village-Aali, New Delhi (hereinafter referred to as 'subject

land'), are deemed to have lapsed as compensation has not been tendered to the petitioners. At the outset, counsel for the petitioners submits that the possession of the land has been taken and put to use by the DMRC, thus he restricts his prayer only for compensation in terms of Section 24(1) (b) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (New Act)

2. The necessary facts to be noticed for disposal of this writ petition are that Section 4 notification of the Land Acquisition Act, 1894 was issued on 6th April, 1964, Section 6 declaration was made on 22nd December, 1966 and thereafter Award bearing No. 03/97-98/Suppl. was passed by the Land Acquisition Collector on 10th December, 1997. As per the writ petition, petitioner nos. 1 and 2 are the sons of Late Sh. Mangat Ram, whereas petitioner nos. 3 and 4 are the sons of Late Sh. Basant Kumar, son of Late Sh. Mangat Ram. The petitioners claim their interest in the property based on a Will, copy whereof has been placed on record. Reliance is also placed on Khasra Girdawari, copy of which has also been placed on record, which reflects the name of Late Sh. Mangat Ram as the recorded owner. Counsel for the petitioners submits as the compensation has not been paid, the case of the petitioners is 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.

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

4. Counter-affidavit has been filed by the respondents LAC, DDA and DMRC. As per the counter-affidavit filed by the DMRC, the subject land was allotted by the DDA for the purpose of construction of Sarita Vihar Depot and the possession of the subject land was handed over to the DMRC on 25 th July, 2008 and 1st July, 2008 respectively. DMRC has also given the details of payments made by DMRC to the DDA. Respondent DDA in their counter-affidavit has stated that physical possession of the land was handed over to them on 26th May, 1998. Respondent LAC in Para 7 of their counter- affidavit reads as under:

"That the possession of the land bearing Khasra no. 23/2 (1-4), 24 min (1-15) was taken and handed over to DDA on 06.10.2009 and Khasra No. 165/1 (0-16), 165/2 (1-00), 166/2 (3-18) was taken and handed over to DDA on 26.05.1998. The compensation cannot be ascertained from the Statement "A" whether has been made or not to be recorded owner."

5. The reading of the counter-affidavits fairly establish that the possession of the subject land has been taken and part of the khasra nos. have been handed over by the DDA to the DMRC and balance khasra nos. are in their possession. Para 7 of the counter-affidavit filed by the respondent / LAC would show that the compensation has not been paid to the recorded owners.

6. During the course of hearing, we have also asked the counsel for the respondent LAC whether compensation has at all been paid to the petitioners.

However, there is no response from the counsel for the LAC. In view of the discussion above, we are of the view that the case of the petitioners will be fully covered by the decision rendered by the Apex Court in Pune Municipal Corporation & Anr. (supra), wherein in Paras 14 to 20, it is 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.

7. 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.

8. Having regard to the submissions made and the counter-affidavits placed on record, the petitioners are entitled to a declaration that the acquisition proceedings with respect to the subject land stand lapsed. It is so declared. Since, the petitioners restrict their claim only to the compensation, same shall be paid within a period of one year in terms of the new Act.

Accordingly, the writ petition is disposed of.

CM. No. 20666/2014

In view of the order passed in the writ petition, the application stands disposed of.

G.S.SISTANI, J

V. KAMESWAR RAO, J

DECEMBER 19, 2017/jg