Lalit Kumar vs Govt. Of National Capital ...
2018 Latest Caselaw 143 Del

$~34

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of Judgment: 08th January, 2018

+       W.P.(C) 10185/2015
        LALIT KUMAR                                             ..... Petitioner
                                  Through:      Ms.Deepika V. Marwaha,
                                                Ms.Worthing Kasar and Mr.Vaibhav
                                                Prakash, Advts.
                         versus

        GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI &
        ORS.                                ..... Respondents
                                  Through:      Mr.Yeeshu Jain and Ms.Jyoti Tyagi,
                                                Advocates for LAC/L&B with
                                                Mr.Dharmender Kumar, LAC.

CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)

1. Mr. Dharmender Kumar, LAC, New Delhi District is present in Court pursuant to the directions issued by this Court. The purpose of directing presence of LAC had arisen on account of the fact that in this matter and in a large number of other matters, counter affidavits are not being filed despite opportunities being granted since the year 2015 onwards and despite final opportunity being granted. Mr. Kumar submits that he has recently joined and he has held a meeting with the officials and streamlined the procedure and assures the Court that counter affidavits will be filed within the time allowed.

2. We hope that the counter affidavits would be filed on time and valuable time of the Court would not be wasted and cases would not have to be adjourned. Needless to say that in case the counter affidavits are not filed on time without any justifiable reason, the Court will be forced to take a serious view in the matters.

3. We are informed that counter affidavit has been filed in the Registry.

Copy of the same has been handed over in the Court today.

4. With the consent of the parties, the writ petition is set down for final hearing and disposal.

5. This is a petition under Article 226 of the Constitution of India filed by the petitioner seeking a declaration that the acquisition proceedings with respect to the land of the petitioner measuring 1 bigha and 1 biswa comprised in Khasra No.1426 (2-9) and 1427 (4-16) situated in revenue estate of village Malikpur Kohi @ Rangpuri, New Delhi (hereinafter referred to as the „subject land‟) have 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 possession of the subject land has been taken nor compensation has been paid.

6. Counsel for the petitioner submits that the case of the petitioner stands fully covered by the decision rendered by the Supreme Court of India in the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183.

7. The necessary facts to be noticed for disposal of this writ petition are that a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟) was issued on 27.06.1996. A

Section 6 declaration was made on 03.03.1997. Thereafter, an Award bearing no.3/1998-99/S.W was rendered on 26.02.1999.

8. Mr.Jain, counsel for the LAC relies on para 5 of the counter affidavit filed by LAC, which reads as under:

"That it is submitted that the lands of village Rangpuri @ Malikpur Kohi notified vide Notification under section 4 of the Land Acquisition Act, 1894 dated 27.06.1996 which was followed by the Notification under section 6 dated 3.3.1997. The Award was also passed vide Award No.3/98-99 dated 26.02.1999. It is submitted that actual vacant physical possession of the subject land falling in khasra number 1426 (2-09) and 1427 (4-16) was duly taken on the spot on 31.12.2013 by preparing possession proceeding and handed over to the DDA on the spot. It is submitted that the petitioner has been claiming the relief of (1-01) out of two khasra numbers without disclosing the extent out of each khasra number. The compensation however could not be paid as not received from DDA."

9. We have heard the learned counsels for the parties.

10. As per the stand taken by the LAC in the counter affidavit, compensation could not be tendered as the same was not received from the DDA. Resultantly, the case of the petitioner is fully covered by the decision rendered by the Apex Court in the case of Pune Municipal Corporation & Anr.(supra), paras 14 to 20 of which read 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."

11. Taking into consideration the submissions made, the fact that compensation has not been paid to the petitioner and the stand taken by the LAC in the counter affidavit, we are of the considered view that the necessary ingredients for the application of Section 24(2) of the New Act as has been interpreted by the Supreme Court of India and this Court stand satisfied.

12. Applying the law laid down to the facts of the present case, since the award having been announced more than five years prior to the commencement of the 2013 Act and, having regard to the fact that the compensation has not been tendered, the petitioner is entitled to a declaration that the acquisition proceedings initiated under the Land Acquisition Act, 1894 with regard to the subject land are deemed to have lapsed. It is ordered accordingly.

13. The petition stands disposed.

G.S.SISTANI, J.

SANGITA DHINGRA SEHGAL, J JANUARY 08, 2018 rb