Full Text
JUDGMENT
GIRISH CHHABRA ... Petitioner
Advocates who appeared in this case:
For the Petitioner : Ms Esha Mazumdar For the Respondents : Mr Sanjay Poddar, Senior Advocate with Mr Siddharth
Panda, Mr Govind Kumar, Mr Anshuman Nayak, and
Ms Jyoti Tyagi for the Respondent/LG, L&B and LAC.
Mr Arun Birbal for DDA.
HON’BLE MR JUSTICE SIDDHARTH MRIDUL
1. In this writ petition, the following prayers have been made:- “(a) Writ of Certiorari or any other appropriate writ, order or direction in the nature thereof, quashing, Declaration u/s 6 bearing No. F.11(2)/88/L&B/LA of the said Act dated 08.09.1989, the Award bearing No. 5/91-92 and in consequence thereof quashing Notification No. F.11(7)/88-L&H/LA dated 23.06.1989 u/s 4 of the Land Acquisition Act, 1894; 2014:DHC:4639-DB (b) Writ of Mandamus or any other appropriate writ, order or direction in the nature thereof, thereby directing the Respondents to denotify the lands of the petitioner bearing Khasra Nos. 60/22/1 (17 biswas) and 60/22/2 (4 biswas) in Village Shahbad Daulatpur, Delhi;
(c) Award appropriate costs in the facts and circumstances of the case;
(d) Any other or further order or direction which this
Hon‟ble Court may deem fit and proper in the facts and circumstances of the case be passed / issued in favour of the petitioner.”
2. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as „the 2013 Act‟) came into effect on 01.01.2014. Section 24 of the 2013 Act reads as under:-
3. It is claimed by the petitioner and accepted by the respondents that though physical possession has been taken of the subject land, compensation has not been paid. The award in respect of the subject land was made on 06.09.1991, that is, more than five years prior to the commencement of the 2013 Act. A declaration is sought that the acquisition in respect of the subject land has lapsed by virtue of the provisions of Section 24 (2) of the 2013 Act. The petitioner places reliance on the following Supreme Court decisions: (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; and a very recent decision of the Supreme Court in (3) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and Ors: Civil Appeal No. 8700/2013 decided on 10.09.2014.
4. In Pune Municipal Corporation (supra), the Supreme Court with reference to Section 24(2) of the 2013 Act held as under:-
In connection with the manner in which compensation is to be paid, the Supreme Court further observed as under:-
5. In Shiv Raj (supra) the Supreme Court reiterated the view taken by the earlier three Judge Bench in Pune Municipal Corporation (supra).
6. In the recent decision in Sree Balaji Nagar Residential Association (supra), the Supreme Court once again examined the provisions of Section 24(2) of the 2013 Act and, after following the decisions in Pune Municipal Corporation and Shiv Raj (supra), observed as under:-
7. From the above decisions of the Supreme Court, it is clear that Section 24(2) stipulates that where a award has been made five years or more prior to the commencement of the 2013 Act and where either of the two contingencies is satisfied, that is, (i) physical possession of the land has not been taken, or (ii) compensation has not been paid, the acquisition proceedings shall be deemed to have lapsed. It is also clear that while computing the period from the making of the award till the commencement of the 2013 Act, Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of a stay order or an injunction granted by any court. Moreover, it is evident from the Supreme Court decision in Pune Municipal Corporation (supra) that for the purposes of Section 24(2), the compensation shall be regarded as “paid” only if the compensation has been offered to the person interested and such compensation has been deposited in the court where a reference under Section 18 can be made on the happening of any of the contingencies contemplated under Section 31(2) of the Land Acquisition Act, 1894. The Supreme Court has clarified that the compensation can be said to be paid within the meaning of Section 24(2) when the Collector or the Land Acquisition Officer, as the case may be, has discharged his obligation and deposited the amount of compensation in court and made the amount available to the interested person to be dealt with as provided in Sections 32 and 33 of the Land Acquisition Act, 1894. It is, therefore, clear that mere depositing of the compensation in the court is not sufficient unless and until it has been first offered to the person interested and he has refused to accept the same. Furthermore, the proviso after Section 24(2) of the 2013 Act does not, in any manner, restrict the meanings of the words used in Section 24(2) which clearly mandate that the proceedings shall be deemed to have lapsed if the award has been made five years or more prior to the commencement of the 2013 Act but the physical possession of the land has not been taken over or the compensation has not been paid. The Supreme Court in Sree Balaji Nagar (supra) specifically dealt with the proviso and came to the above conclusion and in doing so also noted that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms.
8. Mr Sanjay Poddar, senior advocate, appearing for the Land Acquisition Collector, sought to distinguish the Supreme Court decision in Pune Municipal Corporation (supra) by contending that the question before the Supreme Court in that case was limited to the expression „compensation has not been paid‟ as appearing in section 24(2) of the 2013 Act. We are afraid we cannot read any such limitation into the clear and unequivocal observations of the Supreme Court which have been set out above. Moreover, the same have been reiterated and reinforced by the Supreme Court in its subsequent decisions in Shiv Raj (supra) and Sree Balaji Nagar (supra).
9. It was then contented by Mr Poddar that where two negatives are interspersed with „or‟, the „or‟ will have to be read as „and‟. Reliance was placed on The Punjab Produce & Trading Co. Ltd. v. CIT: (1971) 2 SCC 540. On the basis of this contention, it was urged that before an acquisition could be deemed to have lapsed both the conditions – (i) physical possession not having been taken and (ii) compensation not having been paid – would have to be satisfied. This argument is also not available to the respondents in view of the interpretation put on the provisions of section 24(2) of the 2013 Act by the Supreme Court, consistently and specifically, in all the three decisions in Pune Municipal Corporation (supra), Shiv Raj (supra) and Sree Balaji Nagar (supra).
10. It was also sought to be contended by Mr Poddar that in cases where possession has been taken by the land acquiring agency the lands have vested in the government by virtue of section 16 of the Land Acquisition Act, 1894 and there is no question of any lapsing of acquisitions. He submitted that in such cases even the government cannot withdraw from the acquisition under section 48 of the 1894 Act. He further submitted that there is no provision even in the 2013 Act for return of possession. These arguments are not tenable, first of all, in view of the clear decision of the Supreme Court in Pune Municipal Corporation (supra), Shiv Raj (supra) and Sree Balaji Nagar (supra). Secondly, the arguments of Mr Poddar are premised on a mindset fashioned by the provisions of and decisions under the 1894 Act. That would not do as the 1894 Act has been replaced by the 2013 Act. In the words of the Supreme Court in Pune Municipal Corporation (supra) – “the 2013 Act puts in place an entirely new regime for compulsory acquisition of land.”
11. Mr Poddar also sought to contend that the proviso after section 24(2) of the 2013 Act ought to be construed as a saving clause. If so construed, the proviso saves the position existing on the commencement of the 2013 Act, implying thereby that if the majority of the landholders have received the compensation then the 1894 Act would apply. If not, then all would be entitled to compensation under the 2013 Act. Such an argument has to be stated to be rejected as it runs contrary to the clear provisions of deemed lapsing contained in section 24(2) of the 2013 Act. As held in Sree Balaji Nagar (supra) “there is nothing in the language of the proviso to restrict the meaning of the words used in section 24(2) mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years‟ old but the physical possession of the land has not been taken over or the compensation has not been paid.”
12. The learned counsel appearing on behalf of the respondents also sought to argue that the proviso would have to be considered even in cases which clearly fall within Section 24(2) of the 2013 Act because there is a colon which separates the main part of Section 24(2) and the proviso. It was contended that the proviso, therefore, has to be read as part of Section 24(2) and not as a proviso. We are afraid that this argument is also not available to the respondents in view of the clear conclusion of law set out by the Supreme Court in the case of Sree Balaji Nagar (supra). Even otherwise, the argument is merely to be stated to be rejected.
13. In the present case although the physical possession of the land in question has been taken, compensation has not been paid. In view of the provisions of section 24(2) of the 2013 Act as interpreted in the Supreme Court decisions cited above, the acquisition proceedings in respect of the subject land would be deemed to have lapsed. It is, accordingly, declared that the subject acquisition has lapsed in terms of the deeming provision of Section 24(2) of the 2013 Act and the respondents are not entitled in law to retain possession of the subject land.
14. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs.
BADAR DURREZ AHMED, J SIDDHARTH MRIDUL, J SEPTEMBER 12, 2014 SU