Delhi High Court
Rani Dahiya vs Uoi And Ors on 28 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th November, 2017
+ W.P.(C) 4339/2017
RANI DAHIYA ..... Petitioner
Through: Mr. Sunil Dahiya, Adv. and
Mr. I.S. Dahiya, Adv.
versus
UOI AND ORS ..... Respondents
Through: Mr. Yeeshu Jain, Standing Counsel for
L&B/LAC
Mr. P.S. Singh, Adv. with
Ms. Swati Bansal, Adv. for R-3
Mr. Arjun Pant, 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 filed by the petitioner under Article 226 of the
Constitution of India. Petitioner seeks a declaration that the acquisition
proceedings with respect to the land of the petitioner comprised in Khasra
No. 118/6/1 (1-02) and 15/3/1 (0-07) total measuring 1 Bigha 9 Biswas
situated in the Village - Palam, New Delhi (hereinafter referred to as the
subject land) would stand lapsed as neither possession of the subject land has
been taken nor compensation paid.
2. Counsel for the petitioner also draws the attention of the Court to
Paragraphs 8 and 9 of the counter-affidavit filed by the respondent / LAC to
show that the compensation has not been paid to the recorded owner.
Counsel for the petitioner relies on the judgment rendered by the Supreme
Court of India in the case of Pune Municipal Corporation & Anr. V. Harak
Chand Misiri Mal Solanki & Ors (2014) 3 SCC 183 in support of his
submission that in view of the fact that compensation has not been paid, the
acquisition proceedings with respect to the subject land would stand lapsed.
3. Counsel for the respondent / LAC submits that possession of the
subject land has been taken over and the possession has been handed over to
the beneficiary department for the purpose of road widening. He submits
that in view thereof, the petitioner shall only be entitled to compensation in
terms of the new Act.
4. Counsel for the petitioner does not dispute that not only possession of
the land in question has been taken but even the land has been put to use for
widening of the road. Counsel for the petitioner submits that in almost
similar circumstances in the case of Inspiration Engineer Pvt. Ltd. & Ors.
vs. Union of India & Ors. reported in 228 (2016) DLT 481 (DB) wherein the
land in question was acquired for the purposes of DMRC project, the
possession was taken but the compensation was not paid, the court held that
the case would not fall under Section 24(2) of the 2013 Act but under Section
24(1)(b) of 2013 Act and the petitioner would thus be entitled to
compensation accordingly.
5. Reliance is placed on paras 13 to 15 of Inspiration Engineer Pvt. Ltd.
(supra) which read as under:
"13. Having heard the rival submissions made on behalf of the
parties, we are of the view that the petitioners did not challenge
the acquisition in the first instance and this is evident from the
fact that the petitioners made a demand for compensation on
25.04.2008. It is another matter that the compensation was not
paid to the petitioners despite their demand. The fact remains
that at the point of time when the acquisition proceedings had
been initiated and when the Award had been made, the
petitioners did not challenge the same. Furthermore, the physical
possession of the land in question was admittedly taken on
31.03.2009 and has been utilized by the Delhi Metro Rail
Corporation for its project. There is, therefore, no question of
return of the land. It is in these circumstances that we feel that
the petitioners are not in a position to raise grievances with
regard to the acquisition per se on the basis of alleged non-
compliance of Section 11A and Section 17(3A) of the 1894 Act.
We are, therefore, not entering into this arena of dispute and,
particularly, as to whether and which of the decisions in Laxmi
Devi (Supra) or Satendra Prasad Jain (supra) would be
applicable.
14. The more important issue that has been raised by the
petitioners is the one pertaining to the proviso in Section 24 of
the 2013 Act. In Tarun Pal Singh (supra), this Court had
observed as under:- "6. It is evident that under section 24(1), two
situations are set out. One where no award has been made under
section 11 of the 1894 Act and the other where an award has
been made under section 11 of the said Act. Insofar as the latter
case is concerned, section 24(2) provides an exception and it
begins with a non-obstante clause. In other words, in cases
where Awards have been made under section 11 of the 1894 Act,
another sub-category of Awards has been carved out by virtue of
section 24(2) and those relate to Awards which had been made
more than five years prior to the commencement of the 2013 Act,
that is, more than five years prior to 01.01.2014. In such cases,
that is, where the Awards have been made more than five years
prior to the commencement of 2013 Act, if physical possession of
the land in question has not been taken or compensation has not
been paid, the acquisition proceedings are deemed to have
lapsed. [see: (i) Pune Municipal Corporation and Anr v.
Harakchand Misirimal Solanki and Ors: (2014) 3 SCC 183; (ii)
Union of India and Ors v. Shiv Raj and Ors: (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; and (iv) Surender Singh v. Union of India and Ors.:
W.P.(C) 2294/2014 decided 12.09.2014 by this Court]. 7. It is,
therefore, clear that in those cases where the Awards have been
made more than five years prior to the commencement of the Act,
section 24(2) would have applicability, subject to the other
conditions being fulfilled. But, in cases where the Awards have
been made within five years of the commencement of the 2013
Act, section 24(2) would not apply. It is also clear that once the
conditions of section 24(2) are met, the acquisition itself lapses
and therefore no occasion would arise for invoking the first
proviso which is set out after section 24(2). This is so because the
first proviso entails a situation where the acquisition is saved but
the compensation is awarded under the 2013 Act. The proviso
cannot blow life into the acquisition which has lapsed under the
main provision of sub-section (2) of Section 24 of the 2013 Act. It
is for this reason that we think that the first proviso which has
been placed after section 24(2) is not really a proviso to section
24(2) but, a proviso to Section 24(1)(b). The said first proviso
and Section 24(1)(b) can easily be read together. Section
24(1)(b) in effect relates to all cases where awards have been
under the 1894 Act except those which are covered under Section
24(2). Clearly, awards made less than five years prior to the
commencement of the 2013 Act would fall under Section
24(1)(b). As such, the general rule in such cases is that the
provisions of the 1894 Act would continue to be applicable, as if
the 1894 Act had not been repealed. However, the said first
proviso carved out an exception to this general rule by providing
that in cases where compensation in respect of a majority of land
holdings has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the notification
for acquisition under Section 4 of the 1894 Act shall be entitled
to compensation in accordance with the provisions of the 2013
Act. This is a provision for the benefit of landowners inasmuch as
even in cases of completed acquisitions, if the conditions
stipulated under the said first proviso stand satisfied, the
compensation would have to be provided under the more
beneficial provisions of the 2013 Act. 8. Thus, while the said first
proviso can harmoniously exist when read as a proviso to
Section 24(1)(b), it cannot so exist when sought to be read as a
proviso to Section 24(2) of the 2013 Act."
15. We may point out that in the above extract there is a
reference to the „first‟ proviso. That reference is to the proviso
after Section 24(2) of the said Act. At the point of time when the
decision in Tarun Pal Singh (supra) was rendered, there was
another proviso (the second proviso), which had been introduced
into the said Act by virtue of an Ordinance. That Ordinance
having lapsed, the second proviso is no longer there in the 2013
Act. The „first‟ proviso referred to in Tarun Pal Singh (supra) is
the surviving proviso in Section 24 of the said Act and the
decision in Tarun Pal Singh (supra) is in respect of this proviso."
6. Counsel for the DDA submits on instructions that the possession of the
land has been taken and amount to be paid in compensation stands deposited
on 10th November, 2003.
7. We have heard learned counsel for the parties. In this case, a
notification under Section 4 was issued on December 07, 2000, Section 6
Notification was issued on April 30, 2001 and an Award was made on April
29, 2003.
8. Paras 8 and 9 of the counter-affidavit filed by the LAC read as under:
"8. That in the present case, the possession of land was taken
over and handed over to the beneficiary department on
28.5.2003.
9. It is respectfully submitted that as per statement A
compensation was not paid to the recorded owner."
9. Having regard to the submissions made that the possession of the
subject land has been taken and put to use, the petitioner would be entitled to
payment of compensation as per Section 24(2) of the 2013 Act as no
compensation has been paid. Resultantly, the present writ petition is allowed.
The acquisition proceeding qua the land of the petitioner comprised Khasra
No. 118/6/1 (1-02) and 15/3/1 (0-07) total measuring 1 Bigha 9 Biswas
situated in the Village - Palam, New Delhi stands lapsed. However, the case
of the petitioner would fall under Section 24(2) of 2013 Act and under
Section 24(1)(b) of 2013 Act and petitioner would be paid compensation
accordingly.
10. The writ petition is allowed in above terms.
G.S.SISTANI, J
V. KAMESWAR RAO, J
NOVEMBER 28, 2017/aky
