Delhi High Court
Sewaram & Ors. vs Land Acquisition Collector & Anr. on 22 November, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 22nd November, 2017
+ W.P.(C) 1457/2015
SEWARAM & ORS. ..... Petitioners
Through: Dr. Rajeev Sharma, Adv.
versus
LAND ACQUISITION COLLECTOR & ANR. ..... Respondents
Through: Ms. Jyoti Tyagi, Adv. for Mr. Yeeshu
Jain, Standing Counsel for L&B/LAC
Mr. Pawan Mathur, Standing Counsel
for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
CM.APPL No. 41066/2017(direction)
1. Counsel for the petitioners submit that by the present application he
prays that the date 06.02.2018 may be cancelled and the matter may be
heard at an early date.
2. The prayer made in this application is not opposed. Accordingly, the
application is allowed. The date fixed on 06.02.2018 stands cancelled.
3. The application is disposed of.
CM.APPL No. 39779/2016
4. The application is dismissed as not pressed, in view of the order passed
in CM.APPL 41066/2017.
CM.APPL No. 7339/2016(delay)
5. This is an application seeking condonation of 43 days delay in filing
CM. APPL 7338/2016.
6. Notice. Counsels for the respondents accept notice.
7. The prayer made in this application is not opposed. Accordingly, the
delay is condoned.
8. The application stands disposed of.
CM.APPL No. 7338/2016
9. This is an application filed by the petitioners to bring on record the
legal heirs of deceased Sewaram.
10. Notice. Counsels for the respondents accept notice. The legal heirs of
deceased Sewaram be brought on record. This order has been passed
subject to all just exception.
11. The application stands disposed of.
CM.APPL No. 2557/2015
12. There is no interim order since 2015. Accordingly, the application is
dismissed as not pressed, at this stage.
W.P.(C) 1457/2015
13. With the consent of the parties, the writ petition is set down for final
hearing and disposal.
14. This is a petition filed under Article 226 of the Constitution of India by
the petitioners. The petitioners claim that the acquisition proceedings
with respect to 1/4th share of their land measuring 2 bighas, 15 biswas
and 10 biswansi, out of total land measuring 11 bighas and 2 biswas
comprised in Khasra No.16/2, 17, 18/2, 19/2 and 22/1, situated in
revenue estate of village Aali, New Delhi(hereinafter referred to as the
„subject land‟) stand lapsed as neither compensation has been paid to
the petitioners with respect to their share nor possession has been taken.
Reliance is placed by the counsel for the petitioners on the copy of
Khatauni for the year 1979-80 to show the names of the petitioners find
mentioned. Learned counsel also submits that in this case a notification
under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred
to as the „Act‟) was issued on 04.04.1964. A Section 6 notification of
the Act was issued on 17.12.1966 and an Award was passed on
5/10.12.1997.
15. Learned counsel for the petitioner contends that the case of the
petitioner is fully covered by the decision rendered by the Apex court in
the case of Pune Municipal Corporation & Anr. v. Harakchand
Misirimal Solanki & ors., reported at (2014) 3 SCC 183, more
particularly, paragraphs 14 to 20, which 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
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."
16. The learned counsel for the petitioners also relies on para 4 of the
counter affidavit wherein it has been averred that actual vacant physical
possession of the subject land was taken but the compensation could not
be paid except to one person who, counsel for the petitioner, submits is
not a petitioner in this case. Counsel further submits that since the
compensation was not paid, the entire proceedings would stand lapsed.
Counsel for the petitioner further relies on the decision rendered by the
Supreme Court in the case of Delhi Development Authority vs. Madan
Mohan Singh and Others, Civil Appeal No.8498 of 2016 arising out of
S.L.P. (C) No.15458 of 2015, in support of his contention that even if
the possession of the land has been handed over, the same is to be
returned to the original owner. He submits that the aforesaid matter
relates to the 1/4th share of one of the co-owners of the land which is
subject matter of this writ petition.
17. Learned counsel appearing for the LAC submits that as per the record
the compensation has not been paid to the petitioners. Learned counsel
appearing for the DDA also relies on the counter affidavit which has
been filed in support of his submission that the possession of the subject
land has been handed over to the DDA and the same has been
transferred to the Freight Complex Scheme.
18. We have heard learned counsel for the parties and considered their rival
submissions.
19. As per the pleas raised by the DDA that the physical possession has
been taken over and land is put to use for the Freight Complex Scheme
and thus the petitioners are only entitled to compensation is without any
force for the reason that in an identical situation with respect to 1/4 th
share of land of a co-owner, the Supreme Court of India in the case of
Delhi Development Authority v. Madan Mohan Singh and Others
(supra) has inter alia directed in case no fresh acquisition proceedings
are initiated within a period of one year the appellant, if in possession,
shall return the physical possession of the land to the original land
owner. On 31.08.2016, the following order was passed:
"In the peculiar facts and circumstances of this case, the
appellant is given a period of one year to exercise its liberty
granted under Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 for initiation of
the acquisition proceedings afresh.
We make it clear that in case no fresh acquisition
proceedings are initiated within the said period of one year
from today by issuing a Notification under Section 11 of the
Act, the appellant, if in possession, shall return the physical
possession of the land to the original land owner."
20. Accordingly, the same terms of the order of 31.08.2016 of the Supreme
Court would apply to the case of the present petitioners as well. The
respondents are given a period of one year to exercise its liberty granted
under Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 for initiation of the acquisition proceedings afresh.
21. We make it clear that in case no fresh acquisition proceedings are
initiated within the said period of one year from today by issuing a
Notification under Section 11 of the Act, the DDA, if in possession,
shall return the physical possession of the land to the original land
owner.
22. The writ petition stands disposed of.
G.S.SISTANI, J
V. KAMESWAR RAO, J
NOVEMBER 22, 2017/aky/rb
