Delhi High Court
Braham Prakash Yadav And Ors. vs Union Of India And Ors. on 9 January, 2018
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment :9th January, 2018
+ W.P.(C) 7465/2017
BRAHAM PRAKASH YADAV AND ORS. ..... Petitioners
Through Mr.B.P. Agarwal, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr.Sarfaraz Ahmed, Adv. for R-1.
Mr.Arjun Mitra, Adv. for R-2 & 3.
Mr.Yeeshu Jain, Standing Counsel
with Ms.Jyoti Tyagi, Adv. for
L&B/LAC.
Mr.Pawan Mathur, Adv. for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Mr.Jain, learned counsel for the LAC has handed over the counter
affidavit in Court today, which has been taken on record.
2. With consent of the counsel for the parties, 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 declaration that the acquisition proceedings
with respect to the land admeasuring 1 bigha 6 biswas in Khasra
no.92, situated in village Haiderpur, New Delhi (hereinafter referred to
as the „subject land‟) stands lapsed in view of section 24(2) of Right to
Fair Compensation and Transparency in Land Acquisition,
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Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as
„2013 Act‟) as neither possession has been taken nor compensation
has been paid to the petitioners.
4. In this case, a notification vide no.F-15(245)/60-LSC/L&H under
section 4 of Land Acquisition Act, 1894 was issued on 24.10.1961 and
a declaration vide notification nno.F-4(5)/63-L&H under section 6 was
made on 06.12.1966. Thereafter, an award bearing no.50/80-81 was
passed on 18.07.1980.
5. Counsel for the petitioner has placed reliance upon 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, 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.
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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
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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
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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."
6. We have examined the counter affidavit filed by LAC, paras 8 and 9
of which, read as under :-
"8. That the Land Acquisition Collector passed an
Award No.50/80-81 dated 18.07.1980 and it is submitted
that the physical possession of the lands bearing Khasra
Nos.92(4-00) out of which Khasra 92(2-18) had been taken
on 19.07.1980 and rest khasra No.92(1-02) could not be
taken. It is further submitted that the Khasra No.92(4-00)
are in the ownership rights of different owners. The subject
matter of the present writ petition i.e. khasra No.92min(1-
06) lies with Shri Vijay Pal s/o Murari Lal and Shri Braham
Prakash s/o Murari Lal having ½ share each at item
nos.169-170 respectively in the Revenue Records available
before the answering Respondent. A copy of the Revenue
Record is annexed herewith and marked as Annexure R/1.
9. That the compensation could not be paid to the land
owners pertaining to Khasra No., subject matter to the
present writ petition."
7. Having regard to the submissions made and the stand taken by LAC in
its counter affidavit that no compensation has been tendered to the
petitioners and the award having been announced more than five years
prior to the commencement 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 of India stand satisfied. The
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petitioners would be entitled to a declaration that the acquisition
proceedings with respect to the subject land stand lapsed, it is so
declared.
8. The writ petition is disposed of.
C.M. APPL 30779/2017
The application stands disposed of in view of the order passed in the
writ petition.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
JANUARY 03, 2018/ck
W.P. (C) No.7465/2017
