SHANTI INDIA (P) LTD v. LT. GOVERNOR AND ORS.

1. The counter affidavit handed over by Mr Panda on behalf of respondent Nos.1,[3] and 4 is taken on record. The learned counsel for the petitioner does not wish to file any rejoinder affidavit inasmuch as he would be relying on the averments already contained in the writ petition.

2. The petitioner seeks the benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and 2015:DHC:6472-DB Resettlement Act, 2013 (hereinafter referred to as ‘the 2013 Act’) which came into effect on 01.01.2014. A declaration is sought to the effect that the acquisition proceeding, which is the subject matter of the present writ petition, ought to be deemed to have lapsed in view of Section 24(2) of the 2013 Act.

3. The Award under the Land Acquisition Act, 1894 (hereinafter referred to as ‘the 1894 Act’) was made vide Award No.1/2007-08 dated 08.11.2007 and it was in respect of, inter alia, the petitioner’s land comprised in Khasra No. 125 (5-08) measuring 5 bighas 8 biswas in all in the Revenue Estate of village Mehrauli.

4. It is an admitted position that the physical possession of the subject land has not been taken by the land acquiring agency. However, the learned counsel for the respondents contend that the physical possession could not be taken because of the operation of the stay order passed in W.P.(C) No. 7446/1999 and W.P.(C) No.23117/2005. The latter writ petition was dismissed on 05.02.2007. The Supreme Court granted stay in SLP (C) 8513/2007 on 15.05.2007. It is an admitted position that the stay order continued to operate till 01.01.2014 when the 2013 Act came into effect. On 26.02.2015 the Supreme Court disposed of the matter on legal issues leaving the factual determination to this court.

5. This aspect of the matter concerning the submission that possession could not be taken because of the operation of the stay order and that in such a situation the respondents should not be prejudiced, was considered by this Court in the case of Jagjit Singh & Ors. vs. UOI & Ors: W.P.(C) 2806/2004 and other connected matters which were decided by this Court on 27.05.2014. In that decision, this Court observed as under:- “8. The learned counsel for the respondents also submitted that no party can be put to a disadvantage because of an act of the Court. Since this Court had passed interim orders, it cannot work to the disadvantage of the respondents.

9. We have already set out section 24 of the new Act in its entirety. It is evident that section 24(2) of the new Act is a nonobstante provision. The conditions which are required to be satisfied before the deeming provision is triggered are:-

(i) The award should have been made under section 11

(ii) Physical possession of the land in question should not have been taken; or

(iii) The compensation should not have been paid.

These conditions are unqualified. It does not matter as to what was the reason behind the non-payment of compensation or for not taking possession. If the legislature wanted to qualify the above conditions by excluding the period during which the proceedings of acquisition of land were held up on account of stay or injunction by way of an order of a Court, it could have been expressly spelt out. In fact, whenever the legislature thought that it was necessary to spell out such an intention, it did. An example of this is to be found in the first proviso to section 19 (7) of the new Act which is as under:- “19(7)……..Provided that in computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.”

10. Furthermore, it would be instructive to refer to the decision of the Supreme Court in the case of Pandurang Vinayak (supra) which has been relied upon by Mr Sethi, the learned senior counsel appearing on behalf of the petitioners. In that decision the purpose and meaning of a statutory fiction was being considered. While doing so, the Supreme Court referred to an English decision in the case of East End Dwelling Co. Ltd. v. Finsbury Borough Council: (1952) A.C. 109 and in particular to an observation of Lord Asquith which was to the following effect:- “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it.....The statue says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

11. Following the above observation, it is obvious that the deeming provision of section 24(2) is a legal fiction which is a created and an imagined situation. We ought not to be concerned with the inevitable corollaries that may flow out of it unless there is a clear prohibition in the statute itself. Once the state of affairs is imagined as real, the consequences and instances would also have to be imagined as real. Therefore, the fact that the possession could not have been taken by the respondents because of interim orders of the Court, would not in any way prevent this Court from imagining the state of affairs stipulated in Section 24(2) of the new Act. The only conditions that are required for the deeming provisions to be triggered are that the award must have been made five years or more prior to the commencement of the new Act and that either physical possession of the land has not been taken or that the compensation has not been paid. In fact in these writ petitions all the conditions stands satisfied. Therefore, the contention of the learned counsel for the respondent cannot be accepted.”

6. As a consequence, for the purposes of Section 24 (2) of the 2013 Act, it has to be held that the respondents did not take physical possession of the subject land. With regard to the issue of compensation, it is the case of the respondents that the same was deposited in Court pursuant to an order passed by this Court in CM(M) 1399/2013. The said amount is said to have been deposited in Court on 30.12.2013. Insofar as the question of deposit in Court is concerned, the same has already been considered by us in Gyanender Singh v Union of India & Ors: W.P.(C) 1393/2014 decided on 23.09.2014 wherein this Court held that unless and until the compensation is tendered to the persons interested, mere depositing of the compensation in court would not be sufficient and cannot be regarded as having been paid. Therefore, following the decision in Gyanender Singh (supra), the deposit in Court cannot, in this case be, regarded as compensation having been paid to the petitioner.

7. The learned counsel for the respondents placed reliance on the second proviso to Section 24(2) of 2013 Act, which has been introduced by virtue of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 (hereinafter referred to as the “said Ordinance”). The newly added proviso reads as under:- “Provided further that in computing the period referred to in this sub-section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a Tribunal for taking possession or such period where possession has been taken but the compensation lying deposited in a court or in any designated account maintained for this purpose shall be excluded.” (underlining added)

8. On a plain reading of the proviso, it is evident that its purpose is to compute the period of five years referred to in Section24(2) of the 2013 Act. Certain periods are to be excluded in computing the said period referred to in Section 24(2) of the 2013 Act. The periods to be excluded are:- (1) the period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court; or (2) the period specified in the Award of a Tribunal for taking possession; or (3) such period where possession has been taken but the compensation is lying deposited in a court or in any designated account maintained for this purpose.