Delhi High Court
Hardwari Lal Rana And Ors. vs Union Of India And Ors. on 8 April, 2022
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 8th April, 2022
+ W.P.(C) 3270/2015
HARDWARI LAL RANA AND ORS. ..... Petitioners
Represented by: Mr Shekhar Preet Jha, Mr
Madhu Sudan Bhayana and Mr
Madhav Shah, Advocates for
petitioner nos.1 to 4.
versus
UNION OF INDIA AND ORS. ..... Respondents
Represented by: Mr Nitin Mishra, Advocate for
R-2/DDA.
Mr Siddharth Panda, Mr P.
Venkatesan and Mr Ritank
Kumar, Advocates for R-3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
MUKTA GUPTA, J. : (Oral)
1. The present petition was filed by the petitioner seeking a writ of
certiorari quashing the impugned Award No.8/91-92 dated 6th
February, 1992 pursuant to the Notification No.F11(1)86-L&B/(2)
dated 7th February, 1990 under Section 4 of the Land Acquisition Act,
1894 (in short 'the Act'). That the declaration under Section 6 of the
Act as also the award no.8/91-92 dated 6th February, 1992 has lapsed
in respect of Khasra No.51/2 measuring 1 bigha Village Siraspur,
Delhi-110042. Directions are also sought not to dispossess the
petitioners from the said land measuring 1 bigha Village Siraspur,
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Delhi-110042.
2. In the writ petition, the petitioners have impleaded Union of
India, Delhi Development Authority and the Government of NCT of
Delhi as respondent nos.1, 2 and 3 respectively.
3. The writ petition was disposed of by this Court vide the
judgment dated 24th May, 2016 granting the benefit to the petitioners
in terms of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (in short 'the 2013 Act') which came into effect on 1 st
January, 2014 in terms of the decision in Pune Municipal Corporation
and Anr. v. Harakchand Misrimal Solanki and Ors. (2014) 3 SCC 183.
A declaration in respect of the acquisition proceedings initiated under
the Act in respect of the subject land was issued to be deemed to be
lapsed.
4. Challenging the judgment of this Court dated 24th May, 2016,
DDA which was the respondent no.2 in the writ petition filed a Special
Leave Petition (Civil) No.36627/2016 before the Hon'ble Supreme
Court where leave was granted and the Civil Appeal No.12075/2016
was dismissed vide the judgment dated 14th December, 2016, as under:
"1. Delay condoned.
2. Leave granted.
3. The issue, in principle, is covered against the
appellant by judgments in Civil Appeal No. 8477 of
2016 arising out of Special Leave Petition (C) No. 8467
of 2015 and Civil Appeal No. 5811 of 2015 arising out
of Special Leave Petition (C) No. 21545 of 2015.
4. This appeal is, accordingly, dismissed.
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5. In the peculiar facts and circumstances of this case,
the appellant is given a period of one year to exercise its
liberty granted under Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 for initiation
of the acquisition proceedings afresh.
6. We make it clear that in case no fresh acquisition
proceedings are initiated within the said period of one
year from today by issuing a Notification under Section
11 of the Act, the appellant, if in possession, shall return
the physical possession of the land to the owner.
7. Pending applications, if any, stand disposed of.
8. No costs."
5. Aggrieved by the order dated 14th December, 2016, DDA filed a
review petition before the Hon'ble Supreme Court, which was also
dismissed on the ground of delay, vide order dated 3rd May, 2021. In
the meantime, Government of NCT of Delhi also filed the Special
Leave Petition (Civil) 4004/2022 wherein leave was granted and was
registered as Civil Appeal No.1746/2022 and the following order
dated 4th March, 2022 was passed:
"Leave granted.
This appeal takes exception to the judgment and order
dated 24.05.2016 passed by the High Court of Delhi at
New Delhi in Writ Petition (C) No.3270 of 2015,
whereby the High Court declared the acquisition
proceedings in respect of subject land as lapsed.
From the judgment under appeal, it is noticed that the
High Court adverted to the fact asserted by the
appellant that possession of the subject land was taken
on 18.09.2004. The High Court then noted that the
respondents-land owners disputed that factual assertion
and yet proceeded to observe that without going into the
controversy of the physical possession, the relief as
claimed by the respondent(s) deserve to be granted.
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This, in our opinion, is a tenuous approach adopted by
the High Court. Form it is necessary to first answer the
foundational fact of possession and/or compensation in
one way or the other and dependent on that deal with
the relief as prayed by the petitioners.
In light of the exposition of the Constitution Bench of
this court in the Indore Development Authority vs.
Manohar Lal & Ors. reported in (2020) 8 SCC 129, the
High Court ought to reconsider the entire matter afresh
on its own merits in accordance with law.
We advert to the stand taken by the respondent(s) in the
counter affidavit that the appellant had challenged the
self-same impugned decision before this court, which
has been decided against the appellant. This aspect may
also be considered by the High Court on its own merits
and in accordance with law.
We may not be understand to have expressed any
opinion either way on the correctness of the submission
stated in the counter affidavit.
All contentions available to both sides are left open.
The parties to appear before the High Court on
08.04.2022, when the High Court may proceed to hear
the remanded matter on that day or assign a suitable
date for disposing of the same expeditiously.
The appeal is disposed of in the above terms.
Pending applications, if any, stand disposed of."
6. It is in view of the order of the Hon'ble Supreme Court dated 4th
March, 2022 that the present petition is now listed before this Court.
7. In the writ petition, the claim of the petitioners was that the
respondents have neither taken physical possession of the land nor
paid any compensation to the petitioners or their late father till date.
In the counter affidavit filed by the respondent no.2/DDA, a
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preliminary objection was taken that the provisions of the 2013 Act
would be applicable only if the acquisition proceedings are alive and
in the present case, the case of the petitioners claim of possession of
the land falling in Khasra No.51/2 (1-0) admeasuring 1 bigha situated
in the Revenue Estate of Village, Siraspur, New Delhi is not
mentioned in the record of the DDA and the subject land falls within
Khasra No.51(4-15) mentioned in the land record admeasuring area 4
bigha 15 biswas situated in the revenue estate of Village Siraspur,
New Delhi. It was further stated that though the petitioners claimed
that they and their predecessors-in-interest were the recorded owners
neither any document of title nor copy from the revenue record to
prove their title or ownership in respect of the land had been placed on
record. It was further stated that the possession of the land in question
having been taken in accordance with law, the acquisition was
complete and the land vests in the government free from any
encumbrance including the right of the prior owner to continue in
possession. It was specifically stated that the physical possession of
the acquired land being Khasra No.51(4-15) has been handed over to
the DDA by the LAC/Land and Building Department, Government of
NCT of Delhi with due process of law on 18th September, 2004 and
the land stands transferred to the user department on 22nd September,
2004.
8. Thus in the affidavit of the DDA, it is clearly noted that the
petitioners have not placed on record any material to show that they
were the recorded owners of the subject land. Further, the khasra
number mentioned was incorrect and the possession of the land in
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question being Khasra No.51(4-15) has already been handed over to
the DDA by the Land and Building Department, Government of NCT
of Delhi.
9. In the rejoinder affidavit filed by the petitioners to the counter
affidavit of the respondent, it is claimed that forged and fabricated
false possession proceedings dated 18th September, 2004 have been
filed in respect of the subject property though the fact remains that
Khasra No.51 is not in existence since the year 1966 whereas Khasra
No.51/2 (1-0) admeasuring 1 bigha situated in the revenue estate of
Village Siraspur, New Delhi is owned and possessed by the petitioners
and their late father.
10. Petitioners have not placed any document on record to show that
the petitioners are in possession of the subject land whereas as per the
records of the DDA as noted above, the possession had already been
taken.
11. Thus, in view of Constitution Bench Judgement reported as
2020 (8) SCC 129 Indore Development Authority vs. Manoharlal &
Ors., in view of the possession having been taken the acquisition
proceedings would not lapse and the petitioners cannot claim the
benefit as awarded by the judgment of this Court dated 24 th May,
2016. Relevant portions of the Indore Development (supra) reads as
under:
"362. Resultantly, the decision rendered in Pune Municipal
Corporation & Anr. (supra) is hereby overruled and all other
decisions in which Pune Municipal Corporation (supra) has
been followed, are also overruled. The decision in Shree
Balaji Nagar Residential Association (supra) cannot be said
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to be laying down good law, is overruled and other decisions
following the same are also overruled. In Indore
Development Authority v. Shailendra (Dead) through L.Rs.
and Ors., (supra), the aspect with respect to the proviso to
Section 24(2) and whether „or‟ has to be read as „nor‟ or as
„and‟ was not placed for consideration. Therefore, that
decision too cannot prevail, in the light of the discussion in
the present judgment.
363. In view of the aforesaid discussion, we answer the
questions as under:
1. Under the provisions of Section 24(1)(a) in case the
award is not made as on 1.1.2014 the date of
commencement of Act of 2013, there is no lapse of
proceedings. Compensation has to be determined under the
provisions of Act of 2013.
2. In case the award has been passed within the window
period of five years excluding the period covered by an
interim order of the court, then proceedings shall continue
as provided under Section 24(1)(b) of the Act of 2013
under the Act of 1894 as if it has not been repealed.
3. The word „or‟ used in Section 24(2) between possession
and compensation has to be read as „nor‟ or as „and‟. The
deemed lapse of land acquisition proceedings under
Section 24(2) of the Act of 2013 takes place where due to
inaction of authorities for five years or more prior to
commencement of the said Act, the possession of land has
not been taken nor compensation has been paid. In other
words, in case possession has been taken, compensation
has not been paid then there is no lapse. Similarly, if
compensation has been paid, possession has not been taken
then there is no lapse.
4. The expression „paid‟ in the main part of Section 24(2)
of the Act of 2013 does not include a deposit of
compensation in court. The consequence of non-deposit is
provided in proviso to Section 24(2) in case it has not been
deposited with respect to majority of land holdings then all
beneficiaries (landowners) as on the date of notification for
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land acquisition under Section 4 of the Act of 1894 shall be
entitled to compensation in accordance with the provisions
of the Act of 2013. In case the obligation under Section 31
of the Land Acquisition Act of 1894 has not been fulfilled,
interest under Section 34 of the said Act can be granted.
Non-deposit of compensation (in court) does not result in
the lapse of land acquisition proceedings. In case of non-
deposit with respect to the majority of holdings for five
years or more, compensation under the Act of 2013 has to
be paid to the "landowners" as on the date of notification
for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as
provided under Section 31(1) of the Act of 1894, it is not
open to him to claim that acquisition has lapsed under
Section 24(2) due to non-payment or non-deposit of
compensation in court. The obligation to pay is complete
by tendering the amount under Section 31(1). Land owners
who had refused to accept compensation or who sought
reference for higher compensation, cannot claim that the
acquisition proceedings had lapsed under Section 24(2) of
the Act of 2013.
6. The proviso to Section 24(2) of the Act of 2013 is to be
treated as part of Section 24(2) not part of Section
24(1)(b).
7. The mode of taking possession under the Act of 1894 and
as contemplated under Section 24(2) is by drawing of
inquest report/memorandum. Once award has been passed
on taking possession under Section 16 of the Act of 1894,
the land vests in State there is no divesting provided under
Section 24(2) of the Act of 2013, as once possession has
been taken there is no lapse under Section 24(2).
8. The provisions of Section 24(2) providing for a deemed
lapse of proceedings are applicable in case authorities
have failed due to their inaction to take possession and pay
compensation for five years or more before the Act of 2013
came into force, in a proceeding for land acquisition
pending with concerned authority as on 1.1.2014. The
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period of subsistence of interim orders passed by court has
to be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give rise to
new cause of action to question the legality of concluded
proceedings of land acquisition. Section 24 applies to a
proceeding pending on the date of enforcement of the Act
of 2013, i.e., 1.1.2014. It does not revive stale and time-
barred claims and does not reopen concluded proceedings
nor allow landowners to question the legality of mode of
taking possession to reopen proceedings or mode of
deposit of compensation in the treasury instead of court to
invalidate acquisition."
12. As regards the contentions of learned counsel for the petitioners
concerned that since the DDA, who was a party in the present writ
petition and in the SLP filed by the DDA against the judgement dated
24th May, 2016 of this Court, leave was granted and the appeal was
dismissed directing DDA to return the physical possession of the land
to the owner in case possession had been taken, the document of
merger would apply and hence the case of the appellant would not be
covered by the Constitution Bench decision in Indore Development
(supra) but by the judgment dated 14th December, 2016 passed in Civil
Appeal No.12075/2016, as noted above.
13. Thus, as noted by the Constitution Bench, the decision in Pune
Municipal Corporation (supra) stands overruled and all decisions
rendered based on the decision in Pune Municipal Corporation
(supra) also are rendered overruled. The decision of the Supreme
Court in Civil Appeal No.12075/2016 would thus be also overruled.
Regarding the contention of applicability of the doctrine of merger,
learned counsel for the respondent relies upon the decision of the
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Hon'ble Supreme Court in Khoday Industry v. Mahadeshwara S. S. K.
Ltd. 2019 (4) SCC 376. However, reliance is also placed on the
decision by learned counsel for the respondent in Civil Appeal
No.215/2022: Land and Building Department through Secretary and
Anr. v. Deepak Seth and Ors. which reads as under:
"Leave granted.
The appeal is directed against an order passed by the
High Court of Delhi dated 16.12.2014 whereby the writ
petition filed by the respondents was allowed holding
that acquisition proceedings stand lapsed in terms of
Section 24(2) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short, "the Act").
Learned counsel for the respondent point out that the
special leave petition i.e. SLP (C) No.30148/2015
against the impugned order filed by the Delhi
Development Authority was dismissed on 04.05.2017.
Therefore, the present appeal merits the same fate.
We do not find any merit in the said arguments raised by
Mr. Mohit D. Ram, learned counsel appearing for
respondent No.1. The Delhi Development Authority is
only a beneficiary whereas the Acquisition Authority is
the State. The dismissal of an SLP does not amount to
merger. The State is the appellant before this Court.
The order passed by the High Court is not sustainable in
view of the Constitution Bench‟s judgment in „Indore
Development Authority Vs. Manohar Lal & Ors. Etc.‟,
reported in (2020) 8 SCC 129.
Consequently, the appeal is allowed, the order passed
by the High Court is set aside and the writ petition is
dismissed.
Pending application(s), if any, also stand disposed of."
14. Considering the fact that the order dated 14th December, 2016 of
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the Hon'ble Supreme Court in Civil Appeal No.12075/2016 stands
overruled by the Constitution Bench in Indore Development (supra),
the doctrine of merger as sought to be applied will not apply, the
petition is dismissed.
15. Order be uploaded on the website of this Court.
(MUKTA GUPTA)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 8, 2022
MK
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