Delhi High Court
Naresh Chandra Rastogi And Ors. vs Govt. Of Nct Of Delhi And Anr. on 30 January, 2018
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 30th January, 2018
+ W.P.(C) 5706/2017
NARESH CHANDRA RASTOGI AND ORS. ..... Petitioners
Through: Mr. Anuj Aggarwal, Advocate.
versus
GOVT. OF NCT OF DELHI AND ANR. .....Respondents
Through: Mr. Sunil Goel, Ms. Supreet Bindra and
Mr.Mayank Goel, Advocates for UOI.
Mr. Sanjay Kumar Pathak, Mrs.K.
Kaumudi Kiran Pathak, Mr. Sunil Kumar
Jha and Mr. Kushal Raj Tater, Advocates
for LAC/L&B.
Ms. Abha Malhotra and Mr. Tanuj
Chopra, Advocates for DDA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J. (ORAL)
1. Present writ petition has been filed under Article 226 of the
Constitution of India seeking a declaration that the acquisition
proceedings with respect to the land of the petitioner comprised in
Khasra No. 315/2 (2 Bighas 19 Biswas) and 331 min (2 Bighas 14
Biswas), situated in the revenue estate of Village Khanupr, Tehsil
Mehrauli, New Delhi (hereinafter referred to as „Subject Land‟),
has 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 the compensation has been paid nor the
physical possession has been taken.
2. In this case, a notification under Section 4 of the Land Acquisition
Act, 1894 (hereinafter referred to as „the Act‟) was issued on
05.11.1980. A declaration under Section 6 of the Act was made on
06.06.1985 and thereafter an Award bearing No. 17/1987-88 was
passed by the Land Acquisition Collector on 16.07.1987.
3. Mr. Aggarwal, learned counsel for the petitioners submits that
counter affidavit filed by the Land Acquisition Collector supports
the case of the petitioners and reliance has been placed on para 9 of
the counter affidavit to show that case is disputed.
4. Mr. Aggarwal, further submits 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 in (2014) 3 SCC 183, as neither
compensation has been paid nor possession has been taken.
5. Mr. Pathak, learned counsel for LAC submits that as per the
counter affidavit, the possession of the subject land was taken but
as per Statement „A‟, there is dispute between the parties but there
is no mention as to whether any payment has been made to them or
not. He further submits that there is also no clarity as to whether
the compensation amount was deposited with Additional District
Judge or not. He also submits that in view of the interim order
passed, the acquisition proceedings could not be completed before
31.12.2013.
6. We have heard learned counsels for the parties.
7. Counter affidavit has been filed by the LAC. Para 9 of the counter
affidavit reads as under:
"9. That the status of the possession and payment of
compensation in respect of Khasra No. 315/2 (2-19) and
331 min. (2-14) is/was as per statement 'A' is provided
below:
Owners' Name Compensation Remarks
Nisha Rastogi 52,506.69 Disputed: There is
Mala Rastogi 52,506.69 no mention as to
Rajesh Chandra 52,506.70 whether payment
Rastogi has been made to
Naresh Chandra 52,506.70 them or not.
Rastogi
8. Reading of the counter affidavit filed by the LAC makes it is
abundantly clear that the compensation was not tendered to the
recorded owner or to the interested persons. In view thereof, 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) 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.
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."
9. Having regard to the submissions made by learned counsel for
LAC and in view of the fact that the LAC failed to satisfy this
Court as to whether the compensation has been paid to the
petitioners or deposited in the Court of Additional District Judge,
we are of the considered view that the necessary ingredients of
Section 24 (2) of 2013 Act stand satisfied. 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.
10. The writ petition stands disposed of.
G. S. SISTANI, J
SANGITA DHINGRA SEHGAL, J
JANUARY 30, 2018
gr
