Balwanti Devi And Ors. vs Land Acquisition Collector & Anr.
2017 Latest Caselaw 7360 Del

$~R-30
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Date of Judgment: 20th December, 2017

+       W.P.(C) 6565/2015
        BALWANTI DEVI AND ORS.                 ..... Petitioners
                    Through: Mr.Inder Singh, Adv.

                           versus

   LAND ACQUISITION COLLECTOR & ANR. ..... Respondents
                Through: Mr.Yeeshu Jain and Ms.Jyoti Tyagi,
                          Advts. for LAC/L&B.
                          Ms. Mrinalini Sen Gupta, adv. for
                          DDA.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)

1. This is a petition under Article 226 of the Constitution of India. The petitioners seeks a declaration that the acquisition proceedings in respect of the land comprised in Khasra Nos.1979/742 min. total area measuring 3 bigha (half share) situated in the revenue estate of village Tuglakabad, New Delhi (hereinafter referred to as „the subject land‟) are deemed to have lapsed in view of Section 24 (2) of the Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as "2013 Act") as neither possession of the land has been taken nor compensation has been paid.

2. 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 23.01.1965. Sections 6 declaration was made on 13.1.1969. An Award was rendered on 04.11.1981.

3. Counsel for the petitioners submits that between the years 2008 to 2013 the petitioners have been pursuing for grant of compensation but the same has not been paid till date. Counsel submits that in view thereof the case of the petitioners 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.

4. Learned counsel for the LAC has drawn the attention of the Court to the counter affidavit. As far as payment of compensation is concerned, it is submitted that in the absence of Statement A, the status of payment of compensation could not be ascertained. No counter affidavit has been filed by the DDA despite the time having been granted since 15.07.2015. The petitioners in the rejoinder have reiterated that the actual physical possession still remains with the petitioners.

5. We have heard learned counsel for the parties. Para 5 of the counter affidavit filed by the LAC, which reads as under:

"5. That it is submitted that the petitioners filed writ petition bearing No.7554/02 before the Hon‟ble Court which was disposed off vide judgment dated 5.12.2002 with the direction to the answering respondents to take the physical possession of the lands within three months, if already not taken. It is submitted that though the possession of various khasra numbers which formed part of the present writ petition was taken way back on 23.11.1981 and 19.9.96 whereas the possession of the

khasra number forming part of the present writ petition i.e. 1979/742 min measuring 3 bigha (half share of petitioners) was taken on 2.9.2006. It is further submitted that the possession of the lands under reference was further handed over to the requisition agency i.e. DDA on the spot, the very same day of its taking respective physical possession. It is pertinent to mention here that the admission by the petitioner regarding moving applications seeking release of compensation itself proved that the physical possession of the subject land was duly taken by the competent authority and handed over to the appropriate government. It is submitted that the status of the compensation of the subject land could not be ascertained as the „Statement A‟ is untraceable and answering respondent has already issued a Circular dated 2.9.2015 to re-locate the same. But no reply has been received from any branch so far. Thus in the absence of the Statement A, the status of payment of compensation could not be ascertained."

6. Having heard the learned counsel for the parties, we are of the view that 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 (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."

7. We are of the considered view that the necessary ingredients for the application of Section 24(2) of the 2013 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.

8. Applying the law laid down to the facts of the present case, since the award having been announced more than five years prior to the commencement of the 2013 Act and having regard to the fact that the

compensation has not been tendered, the petitioners are 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 ordered accordingly.

9. The petition stands disposed C.M.11958/2015 (stay)

10. The application stands disposed of in view of the order passed in the writ petition.

G.S.SISTANI, J

V. KAMESWAR RAO, J DECEMBER 20, 2017 rb