Delhi High Court
Sh. Mahipal Singh & Ors vs Union Of India & Ors on 31 January, 2018
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Judgment :31st January, 2018
+ W.P.(C) 11238/2015
SH. MAHIPAL SINGH & ORS ..... Petitioners
Through Mr. Arun Kumar Kaushik, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Rakesh Kumar, CGSC with Mr.
Santosh Prasad Chaurasiya, G.P. for
respondent no.1/UOI.
Mr. Yeeshu Jain, Standing Counsel
with Ms. Jyoti Tyagi, Adv. for
L&B/LAC.
Mr. Arjun Pant, Adv. for DDA.
Mr. B.L. Wali, Advocate for DMRC.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Counter affidavit has not been filed despite time having been granted
since 04.12.2015.
2. Mr.Jain, learned counsel for the LAC submits that counter affidavit is
ready. Copy of the same has been supplied to counsel for the
petitioners. The counter affidavit is also handed over in Court, which
is taken on record.
3. This is a petition under Article 226 of Constitution of India filed by
the petitioners seeking a declaration that the acquisition proceedings
with respect to land being full share in Khasra no.471 (01-00), 508
(01-06), 506 min (01-03), total measuring 03 bighas 09 biswas and
being 2/7 joint share in Khasra no.507(01-06) of the petitioner,
situated in the revenue estate of village Madanpur Khadar, Teshil
Kalkaji, New Delhi (hereinafter referred to as the „subject land‟) stand
lapsed in view of section 24(2) of Right to Fair Compensation and
Transparency in Land Acquisition, 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 under section 4 of Land Acquisition Act,
1894 („the Act‟ in short) was issued on 23.06.1989 and a declaration
under sections 6 & 17 of the Act was made on 22.06.1990. Thereafter,
an award bearing no.20/92-93 was passed on 19.06.1992.
5. Counsel for the petitioners has placed reliance upon a decision
rendered by Apex Court in 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.
6. As per counter affidavit filed by LAC, possession of the subject land
was taken on 03.12.2012 and was handed over to DDA. However,
compensation was sent to reference court on 28.10.2014 as there was
an apportionment dispute. Para 4 of counter affidavit filed by LAC
reads as under :-
"4. That it is submitted that the lands of village Madan
Pur Khadar were notified vide Notification under section 4
of the Land Acquisition Act dated 23.6.1989 which was
followed by Notification under section 6 of the said Act.
That the then Land Acquisition Collector passed an Award
No.20/92-93 dated 19.6.92 and the possession of the land
falling in khasra number 471 (01-00), 508(01-06) and 506
min (1-03) 2/7th share was taken on 3.12.2012 after
preparing possession proceeding on the spot and was
handed over to the beneficiary department i.e. DDA
immediately. The compensation of the same was also sent
to the Reference Court on 28.10.2014 as there was an
apportionment dispute."
7. Counsel for the petitioners submits that since the compensation was
not tendered prior to coming into force of the 2013 Act, the acquisition
proceedings would deem to have lapsed.
8. We have heard learned counsel for the parties. Taking into
consideration the submissions made, in our view, the case of the
petitioners would be fully covered by the decision rendered in 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. Since the compensation having been sent to reference court post
coming into force of the 2013 Act on 28.10.2014 and the award
having been announced more than five years prior to the
commencement of 2013 Act, the acquisition proceedings with respect
to the subject land would deem to have lapsed. Consequently, the writ
petition is allowed. It is declared that the acquisition proceedings with
respect to the subject land stand lapsed.
10. The writ petition is disposed of.
C.M. APPL 29283/2015
The application stands disposed of in view of the order passed in the
writ petition.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
JANUARY 31, 2018/ck
