Kuldeep vs Union Of India And Another
2018 Latest Caselaw 65 Del

$~R-14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                     Date of Judgment 4th January, 2018
+      W.P.(C) 4590/2015, CM APPL. No. 8304/2015
       KULDEEP                                              ..... Petitioner
                    Through: Mr. Anuroop P. S., Advocate.
                         versus
       UNION OF INDIA & ANR.                    ..... Respondents
                Through: Mr. Bhagvan Swarup Shukla, CGSC with
                          Mr. Kuldeep, Advocate for UOI.
                          Mr. Akshay Chandra, Advocate for
                          DDA.
                          Mr. Yeeshu Jain ad Ms. Jyoti Tyagi,
                          Advocates 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. This writ petition was admitted on 28.03.2017.

2. This is a petition filed under Article 226 of the Constitution of India by the petitioner. The petitioner seeks a writ, order or direction to declare the acquisition proceedings with respect to 1/6th share of the land of the petitioner comprised in Khasra no.227(4-4), 228/2(1-8) and 273(4-4) measuring 09 bighas 16 biswas, situated in the revenue estate of village Kotla Maigiran, New Delhi (hereinafter referred to as the 'subject land') are 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(New Act), as the compensation has not been tendered to the petitioner.

3. Necessary facts which are required to be noticed for disposal of the present writ petition are that Section 4 notification of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') was issued on 06.04.1964, a declaration under Section 6 of the Act was issued on 07.12.1966 and an Award bearing no.205/1986-87 was passed on 19.09.1986.

4. As per the writ petition, neither the possession of the subject land was taken nor compensation paid.

5. Learned counsel contends that the case of the petitioner is fully covered by the decision rendered by the Apex Court in Pune Municipal Corporation & Anr. V. Harak Chand Misiri Mal Solanki & Ors., reported as (2014) 3 SCC 183. The relevant paras of the said decision 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, 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."

6. Learned counsel for LAC has relied upon para no.4 of the counter affidavit and submits that the compensation was sent to the RD on account of a dispute between the co-sharers. As far as the possession is concerned, learned counsel for LAC submits that actual physical possession of the subject land was taken.

7. Learned counsel for the DDA submits on instructions that the actual physical possession of the subject land has been taken and is

being used partly for construction of a road and partly for commercial building.

8. At this stage, Mr. Anuroop P. S., counsel submits that the petitioner would be satisfied, if the compensation is paid to the petitioner as per the Act, 2013.

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

10. Taking into consideration the submissions made and the stand taken by the LAC in the counter affidavit that the amount has been sent to the RD, award has been announced more than five years prior to the commencement of Act, 2013, the petitioner is entitled to a declaration that the acquisition proceedings initiated under Section 1894 Act in respect of the subject land is deemed to have lapsed. However, as prayed, the petitioner would only be entitled for a compensation as per the New Act to be paid within one year from today.

11. The writ petition, is accordingly disposed. CM APPL. No. 8304/2015 The application stands disposed of in view of the order passed in the writ petition,

G. S. SISTANI, J

SANGITA DHINGRA SEHGAL, J JANUARY 04, 2018 ssc/gr