Delhi High Court
Rajesh Saini vs Government Of National Capital ... on 30 October, 2017
$~10, 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 30th October, 2017
+ W.P. (C.) No.8324/2014
RAJESH SAINI ..... Petitioner
Through Mr. P.S. Bindra with Mr. Savi Abbot,
Ms. Seema Saini and Mr. Prince Saini,
Advocates
versus
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI & ORS. ..... Respondents
Through Mr. Siddharth Panda, Advocate for
respondents no.1 and 2.
Mr. Sanjeev Sabharwal, Standing
Counsel with Mr. Hem Kumar,
Advocates for DDA.
Ms. Mini Pushkarna, Standing
Counsel for respondent no.2/SDMC.
+ W.P. (C.) No.8591/2015
AMIT KAUSHIK & ANR ..... Petitioners
Through Mr. Keshav V. Hedge, Advocate
versus
UNION OF INDIA & ANR. ..... Respondents
Through Mr. Siddharth Panda, Advocate for
respondents no.1 and 2.
Mr. Arun Birbal with Mr. Rohan
Mehra and Mr. Sanjay Singh,
Advocates for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
1. The present two petitions have been filed under Article 226 of the
Constitution of India.
2. The petitioner Rajesh Saini in W.P.(C).8324/2014 claims to be the
owner of the land measuring 4 bigha 13 vishwas of Khasra no.96(4-3)
and Khasra no.97/2 (0-10)situated in the revenue estate of Village
Sarai Kale Khan, New Delhi(hereinafter referred to as the 'subject
land'). The petitioner also claims that in view of Section 24(2) of the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013(New Act), the acquisition
stands lapsed as neither possession has been taken over nor
compensation has been paid.
3. Mr. Bindra, learned counsel for the petitioner submits that Section 4
Notification was issued as far as back as on 13.11.1959, Section 6
Notification was issued on 07.12.1966 and thereafter an Award was
made on 19.09.1986. He submits that in view of the construction
activities being carried out over the area in question by the petitioners,
the property was booked by the MCD on 13.11.2014 and part
demolition was carried out on 19.11.2014. Mr. Bindra further
submits that the present case is fully covered by the decision rendered
in the case of Pune Municipal Corporation & Anr. v. Harakchand
Misirimal Solanki & ors., reported at 2014 3 SCC 183. Mr. Bindra
very fairly admits that there is some inter se disputes between the
petitioner Rajesh Saini in W.P.(C).8324/2014 and the one Sh. Amit
Kaushik and Sh. Yagya Dutt Kaushik, petitioners in
W.P.(C).8591/2015, however, he submits that the said inter se
disputes would be adjudicated in appropriate proceedings. Mr. Bindra
has also drawn the attention of the Court to the counter affidavit filed
by respondents no.1 and 2 where it is admitted that the payment of
compensation could not be paid to the recorded owners as per Naksha
Mutzamin.
4. Mr.Bindra relies upon the decision in Habeeb Khan & Ors. Vs. Govt.
of NCT of Delhi and Ors., W.P.(C) 7353/2014, particularly para 4,
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."
5. Mr. Hedge, learned counsel for the petitioners Sh. Amit Kaushik and
Sh. Yagya Dutt Kaushik in W.P.(C).8591/2015 claims that the names
of the petitioners find mentioned in the Revenue records. However, it
is the case of the petitioner Rajesh Saini in W.P.(C).8324/2014 that he
is in possession as he has Bhumidari rights and is shown as cultivator
of the land and thus, is a person interested within the definition of
Section 3 (x) of the New Act. Learned counsels for both the writ
petitioners submit that barring the inter se dispute they have no
objection if the writ petitions are decided based on the fact that no
compensation has been paid to either of them.
6. Mr. Panda, learned counsel appearing for the LAC submits that he
does not dispute the basic facts with regard to Section 4 and Section 6
Notification and the Award which was rendered in the matter.
Learned counsel points out that in this case after passing of the Award
no.154/86-87 dated 19.09.1986, the possession of the land was taken
over by the beneficiary department DDA on 22.09.1986. However, as
per para 5 of the counter affidavit filed by LAC, the payment of
compensation was not paid.
7. We have heard the learned counsels for the parties. Para 5 of the
counter affidavit filed by LAC reads as under:
"5. That the land in question i.e., Khasra No.96 and 97/2 ad-
measuring 4 bighas and 123 biswas, situated at the
revenue estate of village Sarai Kale Khan, New Delhi was
notified under Section 4 of Land Acquisition Act on
04.041964 followed by declaration under section 6 of
Land Acquisition Act on 07.12.1966 for Planned
Development of Delhi. In pursuance of said notification,
notices under section 9 & 10 as provided under the Act,
were issued to the interested persons, inviting the claims
from all the interested persons and claims were also filed
by the interested persons. The then Land Acquisition
Collector passed Award No.154/86-87 dated 19.09.1986
after considering the claims of the c laimants. Further,
possession of the land in question was taken over by the
beneficiary department on 22.09.1986. The payment of
compensation with respect to the above said land could
not be paid to the recorded owners as per Naksha
Mutzamin.''
8. In the case of Pune Municipal Corporation & Anr.(supra), the
Supreme Court of India in paras 14 to 20 held 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."
9. It is not in dispute that no compensation has been paid to any of the
co-owners. Having regard to the fact that the compensation was not
paid to the petitioners, the prayer made by the petitioner Rajesh Saini
in W.P.(C).8324/2014, who is the owner of the land, is allowed.
10. The acquisition pertaining to the land measuring 4 bigha 13 vishwas of
Khasra no.96(4-3) and Khasra no.97/2 (0-10) situated in the revenue
estate of Village Sarai Kale Khan, New Delhi is deemed to have
lapsed.
11. In view of the orders passed in W.P.(C).8324/2014, counsel for the
petitioners in W.P.(C).8591/2015 submits that the inter se disputes
between the parties would be adjudicated in appropriate court of
jurisdiction and does not press this petition.
12. The W.P.(C).8591/2015 is dismissed as not pressed.
13. CM.APPLs 18640-18641/2015 and 6179/2016 also stand dismissed as
not pressed.
G.S.SISTANI, J.
V.KAMESWAR RAO, J.
OCTOBER 30, 2017
pst
