M/S B.M. Traders vs Union Of India
2020 Latest Caselaw 1080 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Date of Decision: 18.02.2020
+      W.P.(C) 7046/2015
       M/S B.M. TRADERS                                        ..... Petitioner
                         Through:     Mr. Gaurav Bhardwaj, Adv.

                     versus
       UNION OF INDIA                                       .... Respondent

                     Through:         Mr. Yeeshu Jain, Standing counsel
                                      with Ms.Jyoti Tyagi, Adv. for L& B
                                      /LAC.
       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI
       HON'BLE MR. JUSTICE SANJEEV NARULA

SANJEEV NARULA, J. (Oral):

1. We have heard learned counsel for the parties and proceed to dispose of the writ petition.

2. The Petitioner has filed the present petition under Article 226 of the Constitution of India, seeking declaration to the effect that the acquisition proceedings with respect to land admeasuring 1260 sq.yards situated in Khasra Nos. 10/8/2(1-11), 9/2(1-19), 12(3-1), 13/1(1-8) and 19/2 (0-19) in Village Pansali, Delhi (hereinafter "the subject land") acquired vide Award No. 4/2002-2003 dated 03.04.2002, are deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter as "the 2013 Act").

3. The notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter 'the LAA') was issued on 27.10.1999 and the declaration under Section 6 of the LAA was issued on 03.04.2000. Subsequently, an Award no. 4/2002-03 dated 03.04.2002 was passed in respect of the subject land.

4. The challenge to the acquisition proceeding is on the surmise that the Petitioner has not been paid compensation with respect of the acquisition of the subject land whereas the possession was taken over by the authorities under section 17(1) of the LAA without any formal documentation of transfer of the possession from the petitioner to the respondent.

5. Land Acquisition Collector (LAC) - Respondent No. 1, in its counter affidavit, has submitted that the possession of the subject land was duly taken over by the Government on the spot on 12.05.2000 and then handed over to the relevant department, recording the same in the possession proceeding. With regard to the compensation, it has submitted that the due compensation amounting to Rs.25,85,027/- for the subject land was deposited with the Reference Court under Section 30/31 of the LAA vide cheque dated 12.04.2004. DDA discharged the onus of making the payment of compensation by depositing the same with the Reference Court as there was an apportionment dispute under section 30/31 of the LAA.

6. Petitioner, in its rejoinder to the counter affidavit of Respondent No. 1, has denied that physical possession of the land was taken on spot. It is contended that there was no requirement for depositing the compensation in the Reference Court in view of the fact that there were no disputes under section 31(2) of Land Acquisition Act, 1894. Further, since the possession of

the subject land was allegedly taken under section 17(1) of the LAA, the mandatory tendering of payment of 80% of the compensation was never complied with and thus the non-compliance of the mandatory process itself vitiates the acquisition proceedings. It is also submitted that by depositing the compensation with the Reference Court, the respondent has failed to discharge the onus under law. There was no apportionment dispute qua the subject land, and in this regard, reliance has been placed upon the orders of the Reference Court, annexed with the rejoinder.

7. Be that say it may, the Petitioner was queried about the delay in filing the present petition. However, no purposeful explanation has been tendered in the petition to justify the inordinate delay in coming forward to challenge the present acquisition proceedings. The notification under Section 4 of the LAA for the subject land was issued in 1999, whereas the present petition has been filed after almost 15 years. Reliance on the proceeding of the Reference Court is of no avail and does not advance the cause of action. The petition is obviously barred by laches.

8. The Supreme Court has dealt with the issue of delay and laches in Mahavir v. Union of India, (2018) 3 SCC 588, in the context of the 2013 Act. The said judgment is unambiguous in emphasising that claims where there is total inaction are not meant to be revived by the 2013 Act. The relevant observations of the Supreme Court in the said decision read as under:

"22. In our opinion, the cases in which there is deliberate action of the owners for not collecting the compensation and they do not want to receive it, Section 24(2) of the 2013 Act does not come to their rescue as provisions are to help those persons who are deprived of compensation but not for those who deliberately had not received it and litigated for decades for quashing of proceedings avoiding to receive compensation by willful act. The failure to deposit in court under Section 31(1) in such cases would attract only interest as envisaged under Section 34 of the Act and the provisions of Section 24 cannot be so invoked in such cases.

23. In the instant case, the claim has been made not only belatedly, but neither the petitioners nor their previous three generations had ever approached any of the authorities in writing for claiming compensation. No representation had ever been filed with any authority, none has been annexed and there is no averment made in the petition that any such representation had ever been filed. The claim appears not only stale and dead but extremely clouded. This we are mentioning as additional reasons, as such claims not only suffer from delay and laches but courts are not supposed to entertain such claims. Besides such claims become doubtful, cannot be received for consideration being barred due to delay and laches.

24. The High Court has rightly observed that such claims cannot be permitted to be raised in the court, and cannot be adjudicated as they are barred. The High Court has rightly observed that such claims cannot be a subject matter of inquiry after the lapse of a reasonable period of time and beneficial provisions of Section 24 of the 2013 Act are not available to such incumbents. In our opinion, Section 24 cannot revive those claims that are dead and stale.

*** *** ***

26. The provision of Section 24 does not invalidate courts judgments/orders in which right have been finally lost or due

to inaction is barred. Law does not permit examination of barred or totally fraudulent claims. The provisions of the law cannot be permitted to be defrauded or misused. Section 24(2) of the 2013 Act cannot be invoked in such cases. The High Court has rightly declined to entertain the writ petitions filed by the petitioners. It is not conceivable how the petitioners could file such a petition in a laconic manner relating to the prime locality at New Delhi that too for hundreds of acres with the delay of more than 100 years."

(emphasis supplied)

9. The aforesaid Judgment has been considered by the Supreme Court in the decision of Indore Development Authority v. Shailendra reported at (2018) 3 SCC 412, relevant portion of which is reproduced hereunder: -

"128. In our considered opinion section 24 cannot be used to revive the dead or stale claims and the matters, which have been contested up to this Court or even in the High Court having lost the cases or where reference has been sought for enhancement of the compensation. Compensation obtained and still it is urged that physical possession has not been taken from them, such claims cannot be entertained under the guise of section 24(2). We have come across the cases in which findings have been recorded that by which of drawing a Panchnama, possession has been taken, now again under Section 24(2) it is asserted again that physical possession is still with them. Such claims cannot be entertained in view of the previous decisions in which such plea ought to have been raised and such decisions would operate as res judicata or constructive res judicata. As either the plea raised is negatived or such plea ought to have been raised or was not raised in the previous round of litigation. Section 24 of the Act of 2013 does not supersede or annul the court's decision and the provisions cannot be misused to reassert such claims once over again. Once Panchnama has been drawn and by way of drawing the Panchnama physical possession has

been taken, the case cannot be reopened under the guise of section 24 of Act of 2013.

129. Section 24 is not intended to come to the aid of those who first deliberately refuse to accept the compensation, and then indulge in ill-advised litigation, and often ill-motivated dilatory tactics, for decades together. On the contrary, the section is intended to help those who have not been offered or paid the compensation despite it being the legal obligation of the acquiring body so to do, and/or who have been illegally deprived of their possession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants.

130. We are of the view that stale or dead claims cannot be the subject-matter of judicial probing under section 24 of the Act of 2013. The provisions of section 24 do not invalidate those judgment/orders of the courts where under rights/claims have been lost/negatived, neither do they revive those rights which have come barred, either due to inaction or otherwise by operation of law. Fraudulent and stale claims are not at all to be raised under the guise of section 24. Misuse of provisions of section 24(2) cannot be permitted. Protection by the courts in cases of such blatant misuse of the provisions of law could never have been the intention behind enacting the provisions of section 24 (2) of the 2013 Act; and, by the decision laid down in Pune Municipal Corporation (supra), and this Court never, even for a moment, intended that such cases would be received or entertained by the courts."

(emphasis supplied)

10. This Court has also dealt with the issue of delay and laches in the case of Mool Chand v. Union of India (W.P. (C) 4528/2015) dated 17th January 2019, wherein the Court while elaborating the decision of Mahavir v. Union

of India, (2018) 3 SCC 588 and Indore Development Authority v.

Shailendra, (2018) 3 SCC 412, on the aspect of delay and laches, made the following observations:

"34. The question then arises whether only the points of difference between the decisions in Pune Municipal Corporation (supra) and Indore Development Authority v. Shailendra (supra) and all issues incidental thereto have been referred to the Constitution Bench? In this context it requires to be noted that although several questions were framed in Indore Development Authority v. Shailendra (supra), it is only on Question I, viz., on whether the deposit in the RD Account would amount to having tendered compensation for the purposes of Section 24 (2) of the 2013 Act, that there was a difference of opinion between the view expressed in the two decisions viz., Pune Municipal Corporation (supra) and Indore Development Authority v. Shailendra (supra).

35. The other point of difference was that arising in Yogesh Neema v. State of MP (supra) where the correctness of the decision in Sree Balaji Nagar Residential Association v. State of Tamil Nadu (supra) as regards exclusion of the period covered by the interim orders from the calculation of the period of five years under Section 24 (2) of the 2013 Act was questioned. On this point the three-Judge Bench in Indore Development Authority v. Shailendra (supra) unanimously overruled the decision in Sree Balaji Nagar Residential Association v. State of Tamil Nadu (supra). On this issue no subsequent Bench of the Supreme Court of co-ordinate strength appears to have taken a contrary view. It is doubtful, therefore, whether this issue would be examined by the Constitution Bench.

36. Relevant to the issue on hand, there was no difference of view qua Question III addressed in Indore Development Authority v. Shailendra (supra) i.e. "Whether section 24 of

Act of 2013 revives barred and stale claims?" On this question there was no view (much less a contrary view) expressed in Pune Municipal Corporation (supra) or for that matter in any other subsequent decision of a smaller, co-ordinate or even larger Bench of the Supreme Court. This question, therefore, was not the subject matter of reference before the Constitution Bench.

37. Consequently, this Court is of the view that although the order passed by the Constitution Bench refers to "all the aspects" being considered by the Constitution Bench, that expression would not include questioning the correctness of the decision of the three-Judge Bench in Indore Development Authority v. Shailendra (supra) as far as it holds by a unanimous opinion that Section 24 (2) of the 2013 Act cannot revive old and stale claims."

(emphasis supplied)

11. Similar orders have been passed in several other cases, such as in the case of Sushma Purthi v. Union of India (W.P. (C) 586 of 2016) dated 31st January 2019, Krishan v. Union of India (W.P. (C) 4919 of 2014) dated 25th January 2019, Mohd. Mian v. Union of India (W.P. (C) 2702/2019) dated 5th February 2019. The aforenoted cases have been dismissed by this court on the ground of delay and laches. Challenge against these judgments have been dismissed by the Supreme Court vide SLP (C) No. 11481/2019, SLP (C) No. 13423/2019 and SLP (C) No. 8848/2019, respectively.

12. Thus, in view of the foregoing discussion, the present petition is not maintainable on merits as well on the ground of delay and laches.

Accordingly, the present petition is dismissed.

SANJEEV NARULA, J

VIPIN SANGHI, J FEBRUARY 18, 2020 Pallavi