Delhi High Court
Gajendra Singh & Ors vs Govt. Of Nct Of Delhi & Ors on 6 February, 2018
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment :6th February, 2018
+ W.P.(C) 8179/2017
GAJENDRA SINGH & ORS ..... Petitioners
Through Mr. Rajiv Kumar Ghawana, Advocate.
versus
GOVT. OF NCT OF DELHI & ORS ..... Respondents
Through Mr. Siddharth Panda, Advocate for
L&B/LAC.
Mr. Rahul Dubey & Ms. Shahana
Farah, Advocates for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Mr. Panda has handed over the counter affidavit in Court, which is
taken on record. Copy of the same has been supplied to counsel for the
petitioners.
2. With consent of both the parties, the present writ petition is set down
for final hearing and disposal.
3. This is a petition under Article 226 of Constitution of India filed by
the petitioners seeking a declaration that the acquisition proceedings in
respect of the petitioners land to the extent of 2 bighas 14 biswas
comprised in Khasra no.461 (64-12), situated in the revenue estate of
village Jasola, Delhi (hereinafter referred to as the „subject land‟)
stand lapsed in view of section 24(2) of Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as „2013 Act‟)
compensation has not been tendered to the petitioners.
4. At the outset, counsel for the petitioners submits that since the
possession of the subject land has already been taken, he restricts his
claim only to compensation in terms of 2013 Act.
5. In this case, a notification under section 4 of Land Acquisition Act,
1894 („the Act‟ in short) was issued on 23.06.1989 and a declaration
under sections 6 of the Act was made on 22.06.1990. Thereafter, an
award bearing no.21/92-93 was passed on 18.06.1992.
6. Mr. Ghawana, counsel for the petitioners submits that the counter
affidavit which has been handed over in Court today, would also make
it clear that as per Naksha Mutzamin, compensation has not been paid
to the recorded owners. Counsel has placed reliance upon a decision
rendered by Apex Court in Pune Municipal Corporation & Anr. v.
Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183,
in support of his plea that since the compensation has not been
tendered, the case of the petitioners would be covered by the aforesaid
decision.
7. Mr. Panda, counsel for LAC has relied on para 7 of his counter
affidavit, which is reproduced below :-
"7. That in the present case, possession of the above
said land was taken and handed over to beneficiary
department on 19.01.2006. The payment of compensation
could not be ascertained as the Statement „A‟ is not avaible
in the branch, however, as per Naksha Mutzamin
compensation is not paid to the recorded owners."
8. We have heard learned counsel for the parties. Taking into
consideration the submissions made and the stand taken in the counter
affidavit that the compensation has not been tendered to the
petitioners, 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, stand satisfied. The
case of the petitioners would be fully covered by the decision rendered
in Pune Municipal Corporation & Anr. (supra), wherein it has been
held in paras 14 to 20 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. Since the award having been announced more than five years prior to
the commencement of the 2013 Act and compensation having not
been tendered to the petitioners, the acquisition proceedings with
respect to the subject land would deem to have lapsed. Consequently,
the writ petition is allowed. It is ordered accordingly. However, as
prayed, the petitioners would only be entitled to compensation as per
2013 Act, which would be paid within a period of one year from
today.
10. The writ petition is disposed of.
CM APPL 33602/2017 (stay)
The application stands disposed of in view of order passed in the writ
petition.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
FEBRUARY 06, 2018/ck/
