Delhi High Court
Krishan vs Union Of India And Ors. on 17 April, 2018
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgement: 17th April, 2018
+ W.P.(C) 10340/2016
KRISHAN .....Petitioner
Through: Mr. Rajesh Gupta and Mr. M.C.
Verma, Advocates.
Versus
UNION OF INDIA & ORS .....Respondents
Through: Mr. Rajul Jain, Advocate for UOI.
Mr. Yeeshu Jain, Standing Counsel
with Ms. Jyoti Tyagi, Advocate for
L&B/LAC.
Mr. Sumit Rana, Advocate for DSIIDC.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (Oral)
1. This is a petition under Article 226 of Constitution of India filed
by the petitioner seeking a declaration that the acquisition
proceedings with respect to land bearing Khasra No.'s 78//8, 9,
10/2, 89/9 min, 10, 90//5, 6, 21, situated in the revenue estate of
village Sultanpur Dabas, Delhi (hereinafter referred as the
'subject land') stand lapsed in view of Section 24(2) of the Right
to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred
to as '2013 Act') as the actual physical possession of the subject
land has not been taken.
2. The necessary facts to be noticed for disposal of this writ
petition are that a Section 4 notification of the Land Acquisition
Act, 1894 (hereinafter referred to as 'the Act') was issued on
25.08.2005. Section 6 declaration was made on 10.07.2006.
Thereafter an Award bearing no. 01/2008-09 was passed by the
Land Acquisition Collector on 25.04.2008.
3. Mr. Rajesh Gupta, counsel for the petitioner submits that
although compensation stands paid to the petitioner but the
petitioner continues to enjoy the actual physical possession over
the subject land. Reliance is placed on Section 24 (2) Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred
to as the "2013 Act") in support of his submission that the onus
to prove that actual physical possession was taken is on the
LAC whereas the LAC has failed to discharge its onus to show
that actual physical possession was taken as per law. He submits
that reliance placed on the Kabza Karyawahi can be of no
benefit to the respondents as the Kabza Karyawahi does not
establish that the notice was given to the land owner prior to
taking possession over the land which was in cultivatory
possession of the petitioner. It is contended that this is a
mandatory requirement and in the absence of the respondents
having complied with the same, it cannot be said that the
physical possession of the land was taken by the respondents
and thus, the case of the petitioner would be covered under the
provisions of Section 24 (2) of 2013 Act as one of the two
contingencies mentioned in the said provision has not been
complied with. Elaborating his arguments further, Mr. Gupta
submits that the LAC has miserably failed to discharge the onus
of having taken actual physical possession as the LAC has not
complied with the settled provisions of law and the judgments
of the Supreme court wherein the term "actual physical
possession" and the manner in which possession is to be taken
have been elaborately discussed. Mr. Gupta also contends that
merely because the petitioner has executed documents to show
that actual physical possession was taken, that would not bind
the petitioner and the said documents would not come in the
way of the rights of the petitioner in view of the 2013 Act.
Mr. Gupta further contends that series of documents signed by
the petitioner giving up all his rights to challenge the acquisition
proceedings in future were signed prior to coming into effect of
the 2013 Act and the effect of the 2013 Act is that the
acquisition proceedings pertaining to the subject lands would
automatically lapse in the absence of the LAC having produced
any document to show that they had taken actual physical
possession of the subject lands in September, 2011.
4. Learned counsels appearing for the LAC and DSIIDC have
jointly opposed the present petition. It is contended that the
compensation stands paid to the land owners and the physical
possession of the subject land was taken on 11.08.2008.
Learned counsels further submit that not only the petitioner has
received compensation in terms of the Act but he has also
availed the benefit of Special Rehabilitation Package and
received payments which are not disputed or denied and the
same have been enumerated in Para. 5 of the Counter Affidavit
filed on behalf of LAC. Counsels also contend that the present
writ petition deserves dismissal as the same is fully covered by
the common judgement rendered by this Bench in the case of
Chatar Singh and Ors. Vs. Union of India and Ors.
W.P.(C)2608/2016 and Dharampal Vs. Union of India and
Ors. W.P.(C)2695/2016 dated 20.03.2018.
5. We have heard learned counsels for the parties.
6. Arguments so raised by Mr. Gupta, counsel for the petitioners
have been dealt with in the case of Chatar Singh (supra) and
Dharampal (supra). In the said petitions, this Court observed as
under:
"9. Based on the affidavits and undertakings, it
would leave no room for doubt that the
petitioners had accepted the compensation
including Special Rehabilitation Package and
had given up all rights of challenge in any
court of law much prior to coming into force
of the 2013 Act.
10. Mr. Gupta has laboured hard to convince this
Court that the onus was on the LAC to show
that the actual physical possession was taken
and law laid down by the Supreme Court
giving mandatory directions with regard to
the manner in which possession has to be
taken has been ignored. In our view, this
argument is not open to the petitioners as the
petitioners have not disputed that possession
has not been taken. Such an argument would
be open only to those petitioners who contest
that actual physical possession was not taken
or given by them. In this case, once the
petitioners themselves have admitted that
actual physical possession was taken, it does
not lie for the petitioners either to raise a
ground or to contest that the LAC must
discharge its onus. In our view, once the land
owner himself has admitted that possession
was taken, nothing further would be required
to show that possession was taken, more so,
where not only compensation has been paid to
the petitioners, the petitioners have also
availed of Special Rehabilitation Package and
received additional payments and thus,
divested themselves of all rights in respect of
the acquired land.
11. For the reasons stated above, we find no
merits in the writ petitions. The writ petitions
are accordingly dismissed. "
7. Keeping in view the forgoing observations, we find no merit in
the present writ petition. The writ petition is accordingly
dismissed.
G.S. SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
APRIL 17, 2018
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