Delhi High Court
Kashi Ram vs Union Of India And Ors. on 1 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st November, 2017
+ W.P.(C) 171/2015
KASHI RAM ..... Petitioner
Through: Mr. N.S. Vasisht and Mr. M.P.
Bhargava, Advs.
versus
UNION OF INDIA AND ORS.
..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC
for R1.
Mr. Yeeshu Jain and Ms. Jyoti
Tyagi, Advs. for L&B/LAC.
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. Rule was issued in this matter on 28th February, 2017.
2. Petitioner claims to be the co-owner of the land measuring 18 Bigha
and 7 Biswas comprised in Khasra Nos.1444/1093/601 (3-17), 792/2 (1-16),
1390/792 (6-14) and 792/3 (3-0), situated in the Revenue Estate of Village
Mandawali, Fazalpur, NCT of Delhi, seeks a direction declaring the entire
acquisition proceedings in respect of the above land as having lapsed. He also
seeks quashing of the impugned Notification bearing No. F.15(3)/59-LSG
dated 13.11.1959 issued under Section 4 of the Land Acquisition Act, 1894;
Notification bearing No. F.4(19)/65-L&H dated 12.07.1966 issued under
Section 6 of the Land Acquisition Act, 1894 and the Award No. 49-C/70-
71/Supplementary dated 22nd December, 1982 with respect to the aforesaid
land.
3. Mr. N.S. Vashisht, learned counsel appearing for the petitioner
submits that possession of the land in question is with the petitioner and also
no compensation has been paid. Resultantly, the petitioner would be entitled
to aforesaid declaration as prayed in view of Section 24 (2) of the Right to
Fair Compensation and Transparency in Land Acquisition Rehabilitation and
Resettlement Act, 2013 (New Act).
4. Counter-affidavit has been filed by the respondent LAC as per which
the compensation could not be paid to the petitioner. Para 6 of the counter-
affidavit reads as under: -
"That it is submitted that for the purpose of planned development
of Delhi, the answering respondent issued a Notification u/s 4 of
the Land Acquisition Act, 1894 on 13.11.1959 which was followed
by Notification u/s 6 of the said Act dated 12.07.1966 for the
acquisition of the lands falling in the Khasra numbers under
reference in Village Mandawali Fazalpur. That an Award bearing
No. 49-C/70-71 dated 22.12.1982 was also passed and the actual
vacant physical part possession of the subject land was also taken
vide possession proceedings dated 4.12.1984. It is submitted that
out of the total land falling in Khasra numbers 1444/1093/601 (6-
17), 792/2 (1-16) & 792/3 (3-00), the answering respondent has
taken the actual physical vacant possession of the land measuring
1444/1093/601 (3-00),792/2(1-16) and 792/3 (3-00) and the
possession of the remaining land falling in khasra number
1444/1093/601 (3-17) could not be taken. The compensation
however could not be paid as per the RD register."
5. The reading of the counter-affidavit would show that even as per the
case of the LAC, only part physical possession of the land was taken and
remaining part of the land is still in the actual physical possession of the
petitioner.
6. Having heard the learned counsel for the petitioners and taking into
consideration the observations made by the Supreme Court in Paras 14 to 21
in the case reported as (2014) 3 SCC 183, Pune Municipal Corporation &
Anr. V. Harak Chand Misiri Mal Solanki & Ors., which are reproduced as
under, we are of the view that the present petition is liable to be allowed:
"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 underSection 24(2) of the 2013 Act.
7. As per Para 6 of the counter-affidavit filed by the respondent / LAC,
the amount of compensation is lying deposited in the treasury. Para 17 of
Pune Municipal Corporation (supra) makes it abundantly clear that deposit
made in the treasury would not amount to a tender.
8. Insofar as the objection, that the present petition is only by a co-
owner, Mr. Vashisht submits that this issue is no more res integra as identical
issue has been decided by the Division Bench of this Court in the case of
Habeeb Khan & Ors. v. Govt. of NCT of Delhi & Ors. W.P.(C) 7353/2014.
We note Paragraph 4 of the same which reads as under:
"4. There is, however, one more point which needs to be
considered. An objection has been raised on behalf of the
respondents that all the co-owners have not been made parties to
the present petition. The learned counsel for the petitioners
submits that each of the petitioners has an undivided share in the
entire subject land. As a result, the petition is maintainable by the
petitioners on behalf of themselves as also on behalf of the other
co-owners. The petition cannot be thrown out on the ground that
some of the co-owners have not been made parties to this
proceeding. We agree with the submission made by the learned
counsel for the petitioners that since the petitioners only have an
undivided share in the subject land, this petition shall enure to
their benefit and also to the benefit of the other co-owners who are
not before this court. We are not called upon to decide the issue of
the apportionment of their shares or the inter-se claims between
the co-owners. In fact we are not deciding the issue of title at all."
9. We find no reason to take a view other than the view taken in the case
of Habeeb Khan (supra).
10. Resultantly the writ petition is allowed, the acquisition proceedings
initiated under the Land Acquisition Act, 1894 with respect to land at
measuring 18 Bigha and 7 Biswas comprised in Khasra Nos.1444/1093/601
(3-17), 792/2 (1-16), 1390/792 (6-14) and 792/3 (3-0), situated in the Revenue
Estate of Village Mandawali, Fazalpur, NCT of Delhi stands lapsed. It is so
declared.
The petition stands disposed of. No costs.
G.S.SISTANI, J
V. KAMESWAR RAO, J
NOVEMBER 01, 2017/jg
