Delhi High Court
Suraj Prakash Jain & Ors vs Land Acquisition Collector & Anr on 16 January, 2018
$~9 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment :16th January, 2018
+ W.P.(C) 8136/2015
SURAJ PRAKASH JAIN & ORS ..... Petitioners
Through Ms.Manpreet Kaur, Advocate.
versus
LAND ACQUISITION COLLECTOR & ANR ..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel
with Ms.Jyoti Tyagi, Adv. for
L&B/LAC.
Mr.Siddharth Dutta, Adv. for R-2.
+ W.P.(C) 9527/2016
KASTURI LAL JAIN & ORS ..... Petitioners
Through Mr. Mayank Mishra, Advocate
versus
LAND ACQUISITION COLLECTOR & ANR ..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel
with Ms.Jyoti Tyagi, Adv. for
L&B/LAC.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Although these writ petitions have been heard separately, but for the
sake of convenience a common judgment is being passed.
W.P. (C) Nos.8136/2015 & 9527/2016
2. Mr.Jain, learned counsel appearing on behalf of LAC submits that he
adopts the counter affidavit filed in W.P. (C) 8136/2015 in W.P. (C)
9527/2016 as well.
3. Present petitions have been filed under Article 226 of Constitution of
India. The petitioners seek a declaration that the acquisition
proceedings with respect to 73.5% undivided share of petitioner in
W.P. (C) 8136/2015 and 26.5% undivided share of petitioner in W.P.
(C) 9527/2016, in land admeasuring 16.5 biswa falling in Khasra
no.1184/20/2/1 out of total land admeasuring 5 bighas 14 biswas (after
acquisition by DMRC) falling in Khasra no.1184/20, situated at
village Jhilmil Tahirpur, Shahdara, Delhi, (hereinafter referred to as
the „subject land‟) stand 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 compensation has not been tendered to the petitioners
although the possession has been taken and lands have been put to use.
4. Counsels for petitioners have placed reliance on Pune Municipal
Corporation & Anr. v. Harakchand Misirimal Solanki & ors.,
reported at (2014) 3 SCC 183.
5. Mr.Jain, learned counsel for LAC has drawn attention of the Court to
paras 4 and 5 of its counter affidavit, which read as under :-
"4. That the present writ petition is liable to be
dismissed for non-joinder of necessary parties as for the
subject land falling in the khasra number 1184/20/2/1 (16
biswa 5 biswansi), the 7 petitioners herein and one M/s
Tirupati Enterprises through its partner Raj Jain have
filed objections claiming ownership over the subject land
and against the release of compensation. The petitioners
W.P. (C) Nos.8136/2015 & 9527/2016
have not impleaded the said Tirupati Enterprises as a
necessary party in the present writ petition.
5. That it is submitted that for purposes of planned
development of Delhi (construction of road under bridge
on road No.58 & 64 at GT Road, Shahdara), the
answering respondent issued a Notification u/s 4 of the
Land Acquisition Act, 1894 on 14.10.2005 which was
followed by Notification u/s 6 of the said Act dated
5.10.2006 for the acquisition of the lands falling in the
above-said Act dated 05.10.2006 for the acquisition of
the lands falling in the above-said khasra numbers in
revenue village Jhilmil Tahirpur. That an Award bearing
No.1/08-09 dated 22.7.2008 was also passed and the
actual vacant physical possession of the land falling in
above-said khasra number was taken on 09.09.2009 and
handed over to the DDA on the spot by preparing
possession proceedings. The petitioner has otherwise
admitted to have taken possession by the government in
the writ petition as the land would have been utilized by
the Government for the construction of the road under
bridge, stated supra. It is submitted that since the
petitioners and Tirupati Enterprises filed objections with
the LAC, the compensation of Rs.19,95,997/- so
determined under the Award, could not be released for
the subject land and the same was deposited with the
Reference Court vide letter dated 28.7.2015."
6. Counsel for LAC submits that the compensation stands deposited to
the Court of ADJ under sections 30 & 31 of Land Acquisition Act,
1894 (hereinafter referred to as „Act‟) on account of the fact that there
is a inter-se dispute with regard to ownership of the land. However,
learned counsels do not dispute the fact that this amount stands
deposited after coming into force the 2013 Act. Counsel further
submits that in view of the dispute, this Court may clarify that this
Court is not rendering any opinion as to the ownership and title of the
W.P. (C) Nos.8136/2015 & 9527/2016
land. However, since the amount has been deposited post coming into
force the 2013 Act, the acquisition proceedings stand lapsed.
7. In W.P. (C) 8136/2015, a notification under section 4 of the Act was
issued on 14.10.2005 and a declaration under section 6 of the Act was
made on 05.10.2006. Thereafter, an Award bearing no.1/08-09 was
passed on 22.07.2008.
8. In W.P. (C) 9527/2016, a notification under section 4 of the Act was
issued on 12.04.2006 and a declaration under section 6 of the Act was
made on 22.05.2006. Thereafter, an Award bearing no.1/2008-
09/North-East was passed on 22.07.2008.
9. Having heard learned counsel for the parties, we are of the view that
the case of the petitioners would be 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.
W.P. (C) Nos.8136/2015 & 9527/2016
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
W.P. (C) Nos.8136/2015 & 9527/2016
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
W.P. (C) Nos.8136/2015 & 9527/2016
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."
10. Having regard to the stand taken by LAC in its counter affidavit, we
make it clear that we have not rendered any opinion as far as
ownership and title of the land is concerned to which counsel for
petitioner has no objection as a reference under sections 30 & 31 of
the Act is pending. Counsel submits that she has already approached
the Court of ADJ and filed objection and supporting documents in
support of her ownership in the year 2015 itself.
11. Taking into consideration the observations made in the case of Pune
Municipal Corporation & Anr (supra),and having regard to the fact
that neither compensation was tendered nor referred to the Court of
ADJ under sections 30 & 31 prior to the coming of 2013 Act, the
acquisition proceedings would stand lapsed. It is ordered accordingly.
12. We make it clear that we have not made any observation with regard
to ownership and title of the land. It is also made clear that since the
land has been put to use, the rightful owners would only be entitled for
compensation under the 2013 Act.
13. The writ petitions stand disposed of.
W.P. (C) Nos.8136/2015 & 9527/2016
C.M. APPL 16911/2015 in W.P. (C) 8136/2015 & C.M. APPL
38115/2016 in W.P. (C) 9527/2016
Both the applications stand disposed of in view of the order passed in
the writ petitions.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
JANUARY 16, 2018/ck/
W.P. (C) Nos.8136/2015 & 9527/2016
