Full Text
JUDGMENT
ALOK SHREWALA & ANR. .... Petitioners
For the Petitioner : Mr Ravi Gupta, Senior Advocate with Mr Ajay Gulati, Advocate
For the Respondents : Mr Sanjay Kumar Pathak, Advocate
HON’BLE MR JUSTICE SANJEEV SACHDEVA
1. In CM No. 18141/2014, we had issued notice. The notice had been accepted by the learned counsel for respondent No.2 to 4 as also by the learned counsel for respondent No.5. They had been directed to produce the file pertaining to the subject land for the purposes of ascertaining whether physical possession was ever taken and also as to whether compensation had been paid or not.
2. It transpires now that the physical possession of the subject land could not be taken because of the operation of the stay order dated 18.06.2003 passed in 2015:DHC:535-DB this very writ petition. Similarly, the compensation could also not be paid because of the stay. However, the learned counsel for the petitioner submits that despite the fact that there was a stay, the benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as „the 2013 Act‟) which came into effect on 01.01.2014 cannot be denied to the petitioner.
3. The Award under the Land Acquisition Act, 1894 (hereinafter referred to as „the 1894 Act‟) was made vide Award No.33/03-04 dated 31.03.2004 and it was in respect of, inter alia, the petitioners‟ land comprised in Khasra Nos. 32/9 (4-13), 32/10 (4-16), 33/6 (4-16), 33/7 (4-16), measuring 19 bighas 1 biswas in all in village Holambi Kalan.
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 this very petition. It is an admitted position that the stay order continued to operate till 01.01.2014 when the 2013 Act came into effect. 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:-
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.”
5. The learned counsel for the respondent, however, places reliance on the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2014, which came into effect on 31.12.2014 whereby the second Proviso has been added to subsection 2 to Section 24 of the 2013 Act. The said plea, however, is no longer available to the respondents in view of the decision of the Supreme Court in the case of M/s Radiance Fincap (P) & Ors. v. Union of India & Ors. decided on 12.01.2015 in Civil Appeal No.4283/2011 wherein the Supreme Court has held as under: “The right conferred to the land holders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same.”
6. It is evident from the above that the Ordinance is prospective and rights created in favour of the petitioners as on 01.01.2014 are undisturbed by the virtue of the said Ordinance.
7. As a consequence, it has to be held that the respondents did not take physical possession of the subject land. With regard to the element of compensation, it is an admitted position that compensation has not been paid in respect of the said land. The Award was also made more than five years prior to the commencement of the 2013 Act. Therefore, all the ingredients of Section 24(2) of the 2013 Act as interpreted by the Supreme Court and this Court in the following decisions stand satisfied:- (1) Pune Municipal Corporation and Anr v. Harakchand Misirimal Solanki and Ors: (2014) 3 SCC 183; (2) Union of India and Ors v. Shiv Raj and Ors: (2014) 6 SCC 564; (3) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and Ors: Civil Appeal No. 8700/2013 decided on 10.09.2014; (4) Surender Singh v. Union of India & Others: WP(C) 2294/2014 decided on 12.09.2014 by this Court; and (5) Jagjit Singh & Ors. vs. UOI & Ors: W.P.(C) 2806/2004 decided on 27.05.2014.
8. As a result, the petitioners are entitled to a declaration that the said acquisition proceedings initiated under the 1894 Act in respect of the subject land are deemed to have lapsed. It is so declared.
9. The said CM No.18141/2014 and the writ petition are allowed to the aforesaid extent. There shall be no order as to costs.
BADAR DURREZ AHMED, J SANJEEV SACHDEVA, J JANUARY 19, 2015 sv