Pima Lal vs Government Of National Capital ...
2018 Latest Caselaw 559 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of Judgment: 23rd January, 2018
+       W.P.(C) 10405/2015

        PIMA LAL                                                 ..... Petitioner
                                  Through:      Ms. Deepika V. Marwaha and Ms.
                                                Megha Katari, Advocates

                         versus

        GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
        DELHI & ORS.                           .... Respondents
                     Through: Mr.Yeeshu Jain, Standing Counsel
                              with Ms. Jyoti Tyagi, Advocate for
                              L&B/ LAC.
                              Mr. Dhanesh Relan, Standing Counsel
                              with Ms.Gauri Chaturvedi and Ms.
                              Kajri Gupta, Advocates for DDA.

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

1. Counter affidavit has been handed over in Court by the counsel for the LAC, copy supplied to the counsel for the petitioner. Counter affidavit be taken on record.

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

3. This is a petition under Article 226 of the Constitution of India filed by the petitioners. The petitioner seeks a declaration that the acquisition proceedings initiated in respect of the land of petitioner comprised in Khasra no.1271 min, measuring 1 bigha, situated in the

revenue estate of village Malikpur Kohi @ Rangpuri, New Delhi (hereinafter referred to as „the subject land‟) is deemed to 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 the „2013 Act‟), as neither the physical possession of the subject land has been taken nor the compensation has been paid.

4. As per the petition, the petitioner became the owner of the agricultural land by virtue of a Sale Deed dated 27.04.1987 executed by one Shri M.L. Gupta in favour of the petitioner. The petitioner claims to be in possession of the subject land since 27.04.1987. The land already stands mutated in the name of the petitioner in the revenue record of Tehsil Vasant Vihar, Delhi on 22.06.1987. In this case, a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟) was issued on 27.06.1996. A declaration under Section 6 was made on 10.01.1997 and an Award bearing no.2/1998-99 was rendered on 07.01.1999.

5. Learned counsel or the petitioner has drawn the attention of the Court to para 7 of the counter affidavit, as per which the compensation has not been tendered, although as per the case of the LAC, physical possession of the land was taken over on 31.12.2013, which is disputed by the learned counsel for the petitioner, who submits that the petitioner is in actual physical possession of the subject land. Learned counsel for the petitioner submits that since neither the possession of the subject land was taken nor the compensation has been paid, the case of the petitioners would be fully covered by the decision rendered

by the Supreme Court in the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183 and the petitioner would be entitled to a declaration.

6. We have heard the learned counsel for the parties. Paragraph 7 of the counter affidavit filed by the LAC reads as under:

"7. That the acquisition proceedings qua the notified land i.e. land notified under Award No.2/98-99 could not be completed because of the interim orders passed in various writ petitions as all the khasra number mentioned in present writ petition formed part of writ number 7802/12 and now in view of interim order passed in the present petition which is still in operation. Khasra number 1271 (5-00) formed part of Award No.02/98-99 and actual vacant physical possession of the same was taken on 31.12.2013 on the spot and handed over to DDA on the spot however compensation could not be paid as not received from requisition agency."

7. Reading of the counter affidavit filed by the LAC makes it clear that compensation of the subject land was not tendered to the petitioner. Thus, the case of the petitioner would be fully covered by the decision rendered by the Supreme Court of India in the case of Pune Municipal Corporation & Anr.(supra). Paragraphs 14 to 20 of the decision rendered in Pune Municipal Corporation & Anr.(supra), 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."

8. Taking into consideration the submissions made 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 2013 Act, as has been interpreted by the Supreme Court of India, stand satisfied.

9. Since the award having been announced more than five years prior to the commencement of the 2013 Act and, having regard to the stand taken by the LAC and the fact that the compensation has not been paid

to the petitioner, 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.

10. The petition stands disposed.

CM.APPL 26024/2015(stay)

11. The application stands disposed of in view of the order passed in the writ petition.

G.S.SISTANI, J.

SANGITA DHINGRA SEHGAL, J JANUARY 23, 2018 pst/