Delhi High Court
Ranbir Singh vs Union Of India And Ors on 2 February, 2018
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 02nd February, 2018
+ W.P.(C) 8677/2014
RANBIR SINGH ..... Petitioner
Through: Mr.S.P.Singh Rathore, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Bhagvan Swarup Shukla, CGSC
with Mr.Suraj Kumar, Advocate for
respondent no.1/UOI.
Mr.Sanjay Kumar Pathak,
Mrs.K.K.Kaomudi Kiran Pathak,
Mr.Sunil Kumar Jha and Mr.Kushal
Raj Tater, Advocates for
respondent/LAC-L&B.
Mr.S.R.Sharma, Advocate for
respondent/DDA.
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 the Constitution of India filed
by the petitioner. The petitioner seeks a declaration that the acquisition
proceedings in respect of land/property of the petitioner having
Khatoni of the same comprised in Khasra No.201 situated at the main
road Village-Khichri Pur, Delhi measuring 981 square metres
(hereinafter referred to as „the subject land‟) stands 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 neither the physical
possession of land of petitioner measuring nor compensation has been
paid to the petitioner.
2. Counsel for the petitioner submits that he seeks relief only to extent of
2 biswas of land of which the possession has not been taken.
3. In this case, a Notification under Section 4 of the Land Acquisition
Act, 1894 (hereinafter referred to as „the Act‟) was issued on
13.11.1959, a declaration under Section 6 of the Act was issued on
20.06.1996 and an Award bearing No.28-B/70-71 was passed.
Counsel for the petitioner submits that the case of the petitioner is
fully covered by a 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, as neither possession
has been taken nor compensation has been paid to the petitioner.
4. Mr.Pathak, counsel appearing for LAC submits that the present
petition is not maintainable as the petitioner is not the owner of the
land in question, even otherwise, he submits that as far as the
compensation is concerned, the same has been deposited under
Sections 30/31 of the Land Acquisition Act, 1894 (hereinafter referred
to as „the Act‟), supporting documents have been placed on record. He
submits that the petitioner is not the owner of the 981 square metres of
land and relying on his counter affidavit, he further submits that the
possession of Khasra No.201/3 min (0-2) of Village Khichri Pur was
not taken and the petitioner would only be entitled to a declaration
with respect to 2 biswas of land in Khasra No.201/3 min. He submits
that the petitioner cannot claim any relief beyond 2 biswas of land.
Paras 10 & 12 of the counter affidavit filed by LAC read as under:
"10. That in so far as status of possession is concerned,
possession of Khasra No.201/1(8-4), 201/2(2-9) and 201/3 min (0-13)
of Village Khichri Pur was taken over on 17.11.1975. However,
possession of Khasra No.201/3 min (0-2) of Village Khichri Pur was
not taken over as per possession proceedings dated 21.11.1975 and
10.2.1976. Petitioner is falsely disputing the factum of taking over of
possession. It is denied that the possession of the subject land was not
taken over by the respondents. As stated above, the possession of land
in Khasra No.201 was taken over except small part of Khasra
No.201/3 measuring 02 biswa. If the petitioner, thereafter, has
reentered or retained the possession of acquired land either in 1991
when he claims to have leased out to his so called tenant or at any
other point of time, such possession is clearly illegal and he is only an
unauthorized encroacher or trespasser on Government Land.
Petitioner cannot be permitted to take benefit of his own wrongs.
However, it is denied that the petitioner is in possession of the subject
land. This is a disputed question of fact required to be decided on
detailed trial/evidence and cannot be adjudicated in writ proceedings
for want of requisite evidence and material on record.
12. That as regards status of payment of compensation of
acquired land is concerned it is submitted that as per the information
available in the Naksha Muntazamin, a reference filed by the recorded
owner, namely, Sh.Khacheru and others under Section 18 of the Old
Act had been sent to the Court of learned Additional District Judge,
Delhi vide File No.F.13(182)75/Lit.I/1023-1024 dated 17.9.1976
regarding Item (Shumar) No.75 to 78 of Naksha Muntazamin. It is
further submitted that LAC No.241/76 of Sh.Khacheru was informed to
have been stayed vide No.28B/241/76/B.B.G/3035 dated 19.5.78
issued by the learned Court of Sh.B.B.Gupta, Additional District Judge
on 10.04.78 in respect of item/entry number 342, 343,75,76,77,78, 51,
52 & 555 of Naksha Muntazamin. Further, the enhanced
compensation has also been sent by file No.F.13(182) regarding item
No.75. The enhanced compensation relating to item No.75, 76, 77, 78
& 342, 343 in the name of Khacheru & Inder had been prepared and it
had been sent in land acquisition cases being LAC No.74/76 and LAC
No.178/81. As per orderdated 13.7.76 of the LAC compensation of
Khasra No.186 min(5-7), 189(5-14) (some part illegal due to
dilapidated record) etc. total 14-16 in the sum of Rs.17,119.00 for item
No.75 in the name of Inder had been passed. For entry No.78, it is
submitted that as per order of LAC (DS) dated 23.12.1977 order
regarding payment of compensation in the sum of Rs.12,261.21 for the
land of item No.78 comprised in Khasra Nos.336 min, 186 min, 187
min, 197 min, 198 min total 10-12 has been passed in favour of
Sh.Khacheru. As per order of LAC (DS), order regarding payment of
compensation in the sum of Rs.17,149.43 for the land in respect of
Item No.78 of Khasra No.336, 186, 187, 197, 198 has been passed. As
per order dated 7.5.1977 of the LAC (DS) order was passed regarding
sending the payment of compensation in the sum of Rs.26,267.12
under Section 30-31 of Khasra No.336 min, 186 min, 187 min, 197
min, 198 min, 39 min(2-3), 42 min (4-6) and 201 min(5-12) total 22-12
to the Court of learned, ADJ, Delhi. As per order dated 7.5.77 of LAC
(DS) compensation in respect of Khasra No.201 min (5-12), 39 min
(2-5),199(4-7), 191 (1-7), 192(1-1) and 41(3-18) total 27-4 had been
sent to the Court of learned ADJ, Delhi under Sections 30-31 of LA
Act".
5. Counsels for DDA and LAC submit that as far as remaining land is
concerned, even photographs placed on record alongwith application
under Order XXXIX Rule-1 & 2 of Code of Civil Procedure, 1908 (in
short „CPC) shows that DDA is in possession of the land and some
construction is being carried out.
6. We have heard the counsel for the parties.
7. In the case of Pune Municipal Corporation & Anr.(supra) in paras 14
to 20, it was 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."
8. Having regard to the submissions made and the stand taken by LAC in
counter affidavit that the compensation has been deposited in the court
of Additional District Judge under Sections 30/31 of the Act, the
possession of the land having been taken except 02 biswas in Khasra
No.201/3 min and the petitioner has restricted his claim only in respect
of 02 biswas of land, we are of the considered view that the necessary
ingredients for the application of Section 24(2) of the 2013 Act as has
been interpreted by the Supreme Court of India and this Court stand
satisfied.
9. Since, the award having been announced more than five years prior to
the commencement of the 2013 Act, the petitioner is entitled to
declaration that the acquisition proceedings in respect of the subject
land 2 biswas are deemed to have lapsed. It is ordered accordingly.
10. The writ petition stands disposed of.
CM No.42797/2016 (stay)
The application stands disposed of, in view of order passed in the writ
petition.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
FEBRUARY 02, 2018
ssc
