Aman Sharma & Ors. v. State of NCT of Delhi & Anr.

1. The instant petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) by the petitioners seeking quashing of the FIR bearing no. 592/2014 registered at P.S. Saket, New Delhi under Sections 447/506 of Indian Penal Code (“IPC”) and Section 3 of the Prevention of Damage to Public Property Act, 1984 ("PDPP Act”).

2. Brief facts, leading to the filing of present petition, are as follows: a. A sale deed bearing registration no. 6768 was executed on 01.10.1963, in favour of the joint owners Messrs Jagjit Singh and Girdharilal, in respect of a land measuring 2 bishas and 4 biswas (approx. 2200 sq. yards) located at Khasra no. 156 at Lado Sarai, Delhi. b. By an award dated 14.09.1986 of the SDM/LAO(ME), Delhi, the said land was acquired by the Delhi Administration for the planned development of Delhi, but against the same, neither any amount of compensation was paid to the erstwhile owners nor the physical possession of the questioned land was taken over by the DDA authorities. c. Considering the aforesaid circumstances, the owners of the said land executed agreements of sale dated 28.04.2006 and 08.05.2006 whereby the land was sold to M/s. Mickey Boilers (P) Ltd., and irrevocable GPAs dated 15.09.2006 and 18.09.2006 bearing registration nos. 8279 & 8278 were also executed in favour of Shri S.P. Gupta, one of the Directors of M/s Mickey Broilers (P) Ltd., and the husband of petitioner no. 4 herein. Thereafter, physical possession was delivered to M/s Mickey Boilers (P) Ltd. have been in physical possession of the said lands since then. d. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“LARR Act”), which came into force on 01.01.2014, introduced the provision for lapse of land acquisition proceedings under Section 24(2). Section 24 of the LARR Act is reproduced herewith: - ―24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.– (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,— (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act,1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.‖ e. On 14.08.2014, the land owners i.e., M/s Mickey Broilers (P) Ltd., in order to protect their land from encroachment, tried to fix a gate on their premises. However, their act was opposed by Delhi Police and even an FIR bearing NO. 592/2014 was registered under Sections 447 IPC and Section 3 of PDPP Act against Petitioner nos. 1 to 3 at Police Station Saket, New Delhi, subsequent to which they were arrested, but were released on bail the next day vide order dated 15.08.2014 passed by the learned Additional Chief Metropolitan Magistrate, Saket Court, New Delhi. f. A Writ Petition [W.P.(C) No. 960/2015] was then filed before this Court by Jagjit Singh and M/s Mickey Broilers (P) Ltd. seeking declaration that the land acquisition proceedings of the year 1986 deemed to have lapsed in light of Section 24(2) of LARR Act, 2013. The said petition was allowed vide order dated 23.02.2016, and this Court had observed as under: ―3. Without going into the controversy of physical possession, this much is clear that the Award was made more than five years prior to the commencement of the 2013 Act and the compensation has also not been paid. The necessary ingredients for the application of Section 24(2) of the 2013 Act as interpreted by the Supreme Court and this Court in the following cases 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)6SCO 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)2294/20il[4] decided on 12.09.2014 by this Court; and (5) Girish Chhabra v. Lt. Governor of Delhi and Ors: WP(C)2759/2014 decided on 12.09.2014 by this Court.

4. 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...‖ (emphasis supplied) g. Challenge to aforesaid order, by the DDA before the Hon’ble Supreme Court in CA No.6250/2017 (arising out of S.L.P.(C) No.28279/2016), was dismissed by the Supreme Court vide a common order dated 04.05.2017 along with various other similar appeals. The observations of the Hon’ble Supreme Court read as follows: - ―23. It is one thing to say that there is a challenge to the legality or propriety or validity of the acquisition proceedings and yet another thing to say that by virtue of operation of a subsequent legislation, the acquisition proceedings have lapsed.

24. In all the decisions cited by the learned Senior Counsel for the appellants, which we have referred to above, this Court has protected the rights of the subsequent purchaser to claim compensation, being a person interested in the compensation, despite holding that they have no locus standi to challenge the acquisition proceedings.

25. The 2013 Act has made a sea change in the approach on the acquisition of land and compensation thereof. The only lapse under the 1894 Act was under Section 11A where what would lapse is the…‖entire proceedings for the acquisition of land" whereas under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under the 1894 Act which has culminated in passing of an award under Section 11 but where either possession was not taken or compensation was not paid within five years prior to 01.01.2014. In other words, the land acquisition proceedings contemplated under Section 24(2) of the 2013 Act would take in both, payment of compensation and taking of possession within the five year period prior to 01.01.2014. If either of them is not satisfied, the entire land acquisition proceedings would lapse under the deeming provision. The impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F. Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others. To quote: ―…as is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs...In fact, Section 24(2) uses the expression ''deemed to have lapsed" because the Legislature was cognisant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State/vesting has taken place, after which land acquisition proceedings could be said to have been ended...." (Paragraph-27). Thus, on account of the lapse, the encumbrance created in favour of the State comes to an end, and resultantly, the impediment to encumber the land also comes to an end. Even, according to the appellants, the transfers were illegal and void for the reason that there was an impediment for the transfer. Once the acquisition proceedings lapse, all impediments cease to exist. ***

29. Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi…‖ (emphasis supplied) h. Thereafter, charge sheet in the present FIR was filed on 15.10.2018 before learned Additional Chief Metropolitan Magistrate, Saket Court, New Delhi, but the charges have not been framed yet.

3. Learned Counsel for the Petitioner submits that the Hon’ble Supreme Court, by order dated 04.5.2017 in C.A. No.6250/2017 confirmed the orders of this High Court dated 23.2.2016 in W.P. (C) No.960/2015 declaring that the land acquisition proceedings herein deemed to have lapsed under Section 24(2) of the LARR Act, 2013 w.e.f. 01.1.2014. So, the question of committing offences on 14.08.2014 under Section 447 and 506 IPC and Section 3 of PDPP Act by the Petitioner nos. 1 to 4 herein does not arise. Hence, the present FIR becomes infructuous and therefore, the same should be quashed.

4. Learned counsel for the Respondent no. 2 submits that in view of the judgment of Apex Court in Indore Development Authority v. Manohar Lal & Ors. SLP (C) Nos. 9036-9038 of 2016, dated 06.03.2020 DDA had filed a Review Petition in Civil Appeal No.6250/2017, which was dismissed vide order dated 03.05.2021 on the ground of delay of 978 days. It is furthermore submitted that Respondent no. 2 is in the process of filing a curative Petition before the Apex Court, in view of which, the present FIR be not quashed until the hearing in curative petition.

5. Heard the learned counsels for both the parties and perused the record.

6. In the present case, the original owners, after having not received any compensation for almost 20 years and possession of their land not been taken over by the authorities, had transferred the land in question through sale to subsequent purchasers in the year 2006. Even the subsequent purchasers neither got any compensation nor the possession of the land was taken over from them in furtherance of award dated 14.09.1986. After coming into force of LARR Act, 2013 on 1.01.2014, the proceedings of land acquisition under the old enactment deemed to have been lapsed by virtue of Section 24(2). The present FIR was registered against petitioner nos. 1 to 3 when they were attempting to install a gate on their land in order to protect the same from encroachment. However, in view of the provision made under Section 24(2) of LARR Act, 2013, the original owners as well as the subsequent owners had approached this Court jointly in W.P.(C) No. 960/2015 and got an order dated 23.02.2016 in their favour declaring the land acquisition proceedings to have been lapsed. However, this Court in the said order had declared the lapse of proceedings under Section 24(2) only on the ground of nonpayment of compensation and not on the question as to whether physical possession of the land continued to be with the petitioner/original owners since the same was disputed by the respondent.

7. Upon challenge to the aforesaid order of this Court, the Hon’ble Supreme Court in C.A. No.6250/2017 (arising out of S.L.P.(C) No.28279/2016) which was reported as State (NCT of Delhi) v. Manav Dharam Trust, (2017) 6 SCC 751, held that Section 24(2) of LARR Act, 2013 was introduced with a purpose of protecting the interests of those persons who had been affected by process of the acquisitions, which also includes the subsequent purchasers/ successors. It was further held that the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested and are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act.

8. However, before proceeding to decide the present case, it will be pertinent to consider some crucial facts. It has come to the knowledge of this Court that the judgment of the Apex Court in Manav Dharam Trust (supra) had already been declared perincuriam and overruled by a larger bench in Shiv Kumar & Anr. v. Union of India (2019) 10 SCC 229, the fact which was neither told by the petitioner nor by respondent to this Court. In Shiv Kumar (supra), the Apex Court has held that the law laid down in Manav Dharam Trust (supra), that subsequent purchasers of land are entitled to seek declaration of lapse of proceedings under Section 24(2) of LARR Act 2013, is bad in law since as per the settled law, any sale after issuance of notification under Section 4 of Land Acquisition Act, 1894 is void and thus, does not entitle any subsequent purchaser to invoke provision of Section 24(2) of LARR, 2013. It is also pertinent to note that the Hon’ble Supreme Court in Indore Development Authority v. Manohar Lal & ors. (2020) 8 SCC 129, while overuling Pune Municipal Corporation and Anr v. Harakchand Misirimal Solanki and Ors (2014) 3 SCC 183 held that for deemed lapse of proceedings under Section 24(2), both the conditions i.e., non payment of compensation and non-taking over of physical possession of land must be fulfilled. As noted in preceding discussion, this Court in W.P.(C) No. 960/2015, by following the law laid down in Pune Municipal Corporation (supra) had allowed the petition seeking declaration as to lapse of proceedings on the basis of non-fulfillment of one of the conditions and not deciding the dispute regarding the second condition.

9. The fact, however, remains that the order dated 23.02.2016 was passed by this Court considering the correct position of law at that point of time, and the appeal against the said order was also dismissed by the Hon’ble Supreme Court. Further as per the stand of respondent no. 2 itself, the review petition against the same also stands dismissed, and they are under the process of filing curative petition, but nothing is pending before the Hon’ble Supreme Court as on date. Thus, the order dated 23.02.2016 passed by this Court continues to be valid and by virtue of the same, the land acquisition proceedings had lapsed, and in any case, the land in question was not a property belonging to respondent no. 2, in view of which the petitioners herein could not have been charged with the offences punishable under Sections 447/506 of IPC and Section 3 of PDPP Act. This Court cannot go into question as to what will be the future of land acquisition proceedings qua the land in dispute in view of change in position of law under Section 24(2), and that whether there will be any retrospective effect of the subsequent judgments passed under the 2013 Act, but the offence alleged to have been committed by the petitioners could not have been an offence at the relevant point of time. There cannot also be any retrospective effect of law in respect of criminal offences.

10. Therefore, the present FIR has been eclipsed by the aforementioned orders of this Court and Hon’ble Supreme Court, and thus become infructuous. Existence of this FIR and filing of chargesheet in the same is nothing but abuse of the process of law.

11. The Hon’ble Supreme Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 has held as under: ―7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.‖