Hari Chand vs Land Acquisition Collector ...
2017 Latest Caselaw 6377 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                   Date of Judgment: 13th November, 2017
+       W.P.(C) 3435/2016
        HARI CHAND                                         ..... Petitioner
                          Through         Mr.Anuroop P.S., Adv.

                          versus

        LAND ACQUISITION COLLECTOR (SOUTH) AND ORS.
                                             ..... Respondents
                          Through         Mr.Siddharth Panda, Adv. for LAC.
                                          Mr.Paramjit S. Bindra, Adv. for
                                          applicants in C.M.Appl40000/2017.
CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MR. JUSTICE V. KAMESWAR RAO

G.S.SISTANI, J. (ORAL)

CM No.40000/2017

1. This is an application filed by the applicants seeking their impleadment as a party to the present proceedings.

2. Learned counsel for the applicants submits that land measuring 1 bigha and 1 biswa falling in Khasra no.97/3, and 2 biswas falling in Khasra no.97/5 has been purchased by the applicants by an agreement to sell dated 10.06.2004, and, thus, the applicants are proper and necessary parties.

3. Notice. Learned counsel for the non-applicants accepts notice.

4. Learned counsel for the petitioner does not dispute that the petitioner has already entered into a sale transaction with the applicants. Counsel thus,

submits, that the applicants have no objection, if the applicants are impleaded as a party to the present proceedings.

5. Heard. Having regard to the submissions made and taking into consideration that the petitioner has already entered into an agreement to sell with the applicants, present application is allowed. Applicants are impleaded as a party to the present proceedings. Let an amended memo of parties be filed by the petitioner.

6. Application stands disposed of.

W.P.(C) 3435/2016

7. Counter affidavit on behalf of DDA has been handed over in Court today, a copy of which has been handed over to counsel for the petitioner in Court.

8. With the consent of counsel for the parties, present writ petition is set down for final hearing and disposal.

9. This is a petition filed under Article 226 of Constitution of India by the petitioner seeking a direction that the acquisition proceedings in respect of land comprised in Khasra nos.71 (4-16), 65/2 (1-05), 101 (5-00), 104(4-16), 97/3 (1-01), 97/5 (0-02), 116/1 (0-18), 116/2 (3-18) & 118 (0-

10) situated in the revenue estate of village Sayurpur, New Delhi (hereinafter referred to as the „subject land‟), to have lapsed in view of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013 (hereinafter referred to as „New Act‟).

10. Learned counsel for the petitioner submits that in this case notifications under sections 4 and 6 of Land Acquisition Act, 1894 (hereinafter referred to as the „Old Act‟) were issued on 25.11.1980 and 20.05.1985

respectively. An award was made on 14.05.1987. It is the case of the petitioner that although possession proceedings pursuant to the award bearing no.10/1987-88 took place on 14.05.1987 but actual physical possession of the land is still with the petitioner. It is thus contended by counsel for the petitioner that in the absence of compensation having not been paid to the petitioner and physical possession not being taken, 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. Harakchand Misirimal Solanki & ors., reported at 2014 3 SCC

183.

11. As per counter affidavit filed on behalf of LAC, the physical possession of the subject land was taken over and handed over to the beneficiary department on 14.07.1987. It has also been averred in the counter affidavit that compensation with respect to the above Khasras was sent to the Court of ADJ on 27.12.2013 under sections 30, 31 of Old Act. It is not disputed that the compensation was not tendered to the rightful owners but deposited in the Court of Land Acquisition Collector. Mr.Panda, learned counsel for LAC points out that although this fact is not mentioned in the counter affidavit but on account of intervening holidays, the amount could not be deposited with the learned ADJ and CM(M) was filed in the Delhi High Court seeking leave of the Court to deposit the amount in the High Court for transfer to the Court of learned ADJ. Counsel submits that in view of the order passed by the High Court it would amount that the amount stands tendered to the owners.

12. We have heard learned counsel for the parties. It is not in dispute that section 4 notification was issued on 25.11.1980, section 6 notification

was issued on 20.05.1985 and, an award was made on 14.05.1987. An identical question had come up for consideration before a Division Bench of this Court in the case of Gyanender Singh & Ors. v. Union of India & Ors. in W.P.(C).1393/2014 decided on 23.09.2014, wherein the identical plea raised by the LAC with regard to judgment of a C.M. (Main) in the Delhi High Court and deposit of the compensation was considered and rejected. It was held that deposit of amount in the High Court would not be treated as a tendered of amount in terms of sections 30 & 31 of Old Act, paragraphs 5 and 6 read as under:

"5. In Pune Municipal Corporation (supra), the Supreme Court clearly set out the circumstances under which compensation could be regarded as having been paid. The relevant paragraphs of the said decision are 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.

xxxx xxxx xxxx xxxx

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 the 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."

It is absolutely clear from the above extracts that unless and until the compensation is tendered to the persons interested, mere depositing of the compensation in the court would not be sufficient. To be clear, compensation cannot be regarded as having been paid merely on the deposit of the same in court unless and until it has first been offered to the person interested and he has refused to accept the same. In the present case, it is an admitted position that the compensation amount was tendered in this court without first being offered to the persons interested (petitioners). Therefore, in view of the clear dictum of the Supreme Court in Pune Municipal Corporation (supra), such deposit of compensation in court cannot be regarded as a payment of compensation as contemplated under the provisions of Section 24(2) of the 2013 Act. The Supreme Court has categorically held 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 a reference under Section 18 can be made on the happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. The contention of Mr Poddar, the learned senior counsel, appearing in this matter, that compensation has first to be offered to the interest person is not a mandatory requirement is without any substance and is in clear contradiction to the ruling of the Supreme Court which has construed the expression of compensation having been paid in the context of Section 24(2) of the 2013 Act.

6. In view of the foregoing as compensation has not been paid to the petitioners and the award has been made more than five years prior to the commencement of the 2013 Act, the subject acquisition as per award No. 15/87-88 dated 05.06.1987 and award No. 24/87-88 dated 09.07.1987 in respect of the Khasra Nos. 347, 350, 918/1, 918/2, 922, 923, 929, 930, 932/1 and 941 of Village Chatterpur totaling 28 bighas and 14 biswas shall be deemed to have lapsed. It is declared as such."

13. Having regard to the fact that the compensation was not tendered, in our view, this case is fully covered by the decision rendered by Supreme Court of India as well by this Court in the following cases :-

(i) Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at 2014 3 SCC 183;

(ii) Union of India and Ors v. Shiv Raj and Ors., reported at (2014) 6 SCC 564;

(iii) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and Ors, Civil Appeal no.8700/2013 decided on 10.09.2014;

(iv) Surender Singh v. Union of India & Others, W.P.(C).2294/2014 decided on 12.09.2014 by this Court; and

(v) Girish Chhabra v. Lt. Governor of Delhi and Ors;

W.P.(C).2759/2014 decided on 12.09.2014 by this Court.

14. Resultantly, the writ petition is allowed. 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. CM No.14697/2016

15. The interim order dated 26.04.2016 is confirmed.

16. Application stands disposed of.

G.S.SISTANI, J

V. KAMESWAR RAO, J NOVEMBER 13, 2017/ck