Delhi High Court
Ram Kanwar And Others vs Union Of India And Anr. on 3 January, 2018
$~R-33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment 03rd January, 2018
+ W.P.(C) 8861/2015
RAM KANWAR & ORS. ..... Petitioners
Through: Mr. Anuroop P. S., Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Yeeshu Jain and Ms. Jyoti Tyagi,
Advocates for L&B / LAC
Ms. Mrinalini Sen and Mr. Shatrajit
Banerji, Advocates for DDA.
CORAM:
HON'BLE MR. JUSTICE G. S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J. (ORAL)
1. This writ petition was admitted on 28.03.2017.
2. The petitioner seeks a declaration that the acquisition proceedings
with respect to the land of the petitioners comprises in Khasra No.
358 (6-0) and 359/2 (18-0) situated in the revenue estate of Village
Bahapur, New Delhi stand lapsed and have become inoperative in
view of Section 24 (2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 as neither the possession of the lands of the petitioners
has been taken nor compensation has been paid.
3. In this case, the notification under Section 4 of the Land
Acquisition Act, 1894 was issued on 13.11.1959. A declaration
under Section 6 of the Act was issued on 19.11.1968 and an award
bearing No. 231/86-87 was pronounced on 19.09.1986.
4. Learned counsel for the petitioners submits that no compensation
has been tendered which is also evident on reading of the contents
of the counter affidavit filed by LAC and as far as possession is
concerned, learned counsel for the petitioners submits that the
petitioners are in actual physical possession of the subject land. He
relies upon the Malkan Kabza filed on record to show that
possession was with the petitioners even during the period of
20.01.2006 to 23.01.2007 when according to the respondent
possession was taken. Learned counsel further submits that entire
arrears is built up and a Flour Mill commonly known as Modi
Flour Mill is functional.
5. Learned counsel for LAC has drawn the attention of the Court to
the para 4 of the counter affidavit as per which actual physical
possession was handed over to the DDA, however, compensation
could not be paid owing to interse dispute between the parties.
6. We have heard the counsel for the parties.
7. We deem it appropriate to reproduce the para 4 of the counter
affidavit filed on behalf of the LAC, which reads as under:
"4. That it is submitted that the lands of village
Bahapur were notified vide Notification under
Section 4 of the Land Acquisition Act dated
13.11.1959 which was followed by Notification
under Section 6 of the said Act vide Notification
dated 19.11.1968. That the then Land Acquisition
Collector passed an Award bearing No. 231/86-87
dated 19.09.1986 and the actual physical possession
of the subject land falling in Khasra number 358 (6-
00) and 359/2 (18-00) was duly taken on 22.09.1986
on the spot by preparing Possession Proceeding on
the spot and was handed over to the beneficiary
department i.e. DDA immediately. The
compensation of the same however, could not be
paid to the recorded owners namely Panna Lal and
Shiv Shankar Dass having half share each owing to
the dispute."
8. Having regard to the fact that the compensation of the land in
question has not been tendered to the petitioners, the present case
fully covers by the decision rendered by the Apex Court in Pune
Municipal Corporation & Anr. V. Harak Chand Misiri Mal
Solanki & Ors. reported in (2014) 3 SCC 183, wherein it was held
that :
"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, 33and 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. Having regard to the submissions made by the parties and the stand
taken by the counsel for the LAC in the counter affidavit that the
compensation has not been tendered and the award having been
announced more than five years prior to the commence of 2013
Act, we are of the considered view that the necessary ingredients of
Section 24 (2) of 2013 Act as interpreted by the Supreme Court
stands satisfied. Accordingly, the acquisition proceedings qua the
land of the petitioners stand lapsed.
10. The petition is allowed.
CM APPLN. No. 19850/2015
In view of the order passed in the writ petition, the present
application stands disposed of.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J
JANUARY 03, 2018
gr
