Full Text
HIGH COURT OF DELHI
W.P.(C) 3791/2015 and CM APPL. 6789/2015
MAHENDER KUMAR & ORS. ..... Petitioners
Through: Ms. Anusuya Salwan with Ms.Nikita Salwan, Advocates.
Through: Mr.Yeeshu Jain, Standing Counsel with Ms.Jyoti Tyagi, Advocate for
LAC/L&B.
Mr.Arjun Pant, Advocate for DDA.
SATYA PRAKASH & ORS ..... Petitioners
Through: Ms. Anusuya Salwan with Ms.Nikita Salwan, Advocates.
Through: Mr.Yeeshu Jain, Standing Counsel with Ms.Jyoti Tyagi, Advocate for
LAC/L&B.
Mr.Arjun Pant, Advocate for DDA.
18.07.2019 2019:DHC:3453-DB Dr. S. Muralidhar, J.:
JUDGMENT
1. These two petitions arise out of a common set of facts, seeking similar reliefs and are accordingly being disposed of by this common order. Nevertheless, each of the petitions was heard separately.
2. In both petitions the reliefs sought are for the declaration of deemed lapsing of land acquisition proceedings under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 („2013 Act‟).
3. In both petitions the lands are located in village Pansali in Delhi. While in W.P.(C) 3791 of 2015 there are 10 Petitioners, in W.P.(C) 3822 of 2015 there are 27 Petitioners. Interestingly, some of the Petitioners are common to both petitions.
4. The facts common to both petitions are that the lands in question were notified for acquisition under Sections 4 and 17 of the Land Acquisition Act, 1894 („LAA‟) on 27th October 1999. This was for the public purpose of the Rohini Residential Scheme. It was followed by a declaration issued on 3rd April 2000 under Section 6 of the LAA leading to the passing of the impugned Award No.4/2002-03 by the Land Acquisition Collector (North) [„LAC(N)‟].
5. In both petitions the case of the Petitioners is that till the dates of filing of the petitions, they continued to remain in actual physical possession of the lands in question. While in W.P.(C) 3791 of 2015 it is averred that despite repeated applications the Respondents have neither offered nor paid compensation, in W.P.(C) 3822 of 2015 it is stated that the Petitioners were paid “meagre amount of compensation, which they received under protest”. In the same writ petition it is further averred that “reference in case of certain Petitioners is pending and the reference applications of other Petitioners are pending before the LAC.” It is stated that the Petitioners are ready and willing to refund the compensation as and when directed by the Court.
6. Both writ petitions came up for hearing before this Court on 20th April 2015 when notice was issued and it was directed that parties shall maintain status quo with regard to nature, title and possession of the subject land. It may be noticed here that subsequently on the applications filed by the Delhi Development Authority („DDA‟), which is one of the Respondents in both petitions, by an order dated 15th May 2018 the said interim orders dated 20th April 2015 were vacated by this Court.
7. Pursuant to the notice issued in these petitions, replies were filed by the DDA on 26th August 2015 (in W.P.(C) 3822 of 2015) and 14th September 2015 (in W.P.(C) 3791 of 2015). Inter alia it was pointed out that the Petitioners have not demonstrated their locus standi to file the present petitions and the same are not maintainable since the Petitioners have not placed on record any documents to demonstrate their ownership, title or interest in the properties in question.
8. Secondly, it was contended by the DDA that the land acquisition proceedings under the LAA in terms of the Award No.4/2002-03 had become final. It was further asserted that the physical possession of the lands in question was handed over by the LAC/Land and Building („L&B‟) Department to the DDA on 12th May 2000 in terms of the possession proceedings enclosed with the affidavits. The extent of land in respect of which physical possession was handed over on 12th May 2000, 5th December 2012 and 18th August 2009 has been specified in the counter affidavits of the DDA. It is stated, however, that physical possession of lands in Khasra Nos.17//25(4-16) and 26//5(2-08) acquired under Award No.14/2005-06 and Khasra Nos. 30//5/min(2-00) and 7min(0-12) acquired under Award No.4/2002-03 had not been handed over to the DDA “due to built up.”
9. The DDA further stated that the compensation amount was remitted in lump-sum to the LAC through the L&B Department in respect of 5 villages of Rohini Phase IV and V including the village in question i.e. Pansali. The cheque amounts and numbers have been set out in the affidavit. It is pointed out that the question of entitlement of the Petitioners to compensation with respect to the lands in question gave rise to disputed questions of fact which could not be examined in the present petitions. It is asserted that in so far as the acquisition of the lands in question are concerned, possession of a substantial part has been taken and compensation has also been paid to a large number of interested persons, therefore, even in terms of Section 24 of the 2013 Act, the acquisition proceedings cannot be declared to have lapsed.
10. A separate counter-affidavit has been filed by the LAC/L&B Department in each of the petitions. These affidavits reiterate that physical possession of a substantial portion of the lands acquired under the impugned proceedings had been taken over by the LAC and handed over to the beneficiary department for the purposes of Rohini Residential Scheme, which is consistent with what has been stated by the DDA. It is stated that as per the possession proceedings, possession of the land in Khasra Nos.10/2/3(0-2), 9/1(0-1) and 7/5(0-
1) could not be taken and hence, the compensation amount for the same could not be paid.
11. As far as W.P.(C) 3822 of 2015 is concerned, it is pointed out that the Petitioners had filed the said writ petition in respect of land in Khasra No.32/11(1-06), however, none of the Petitioners have mentioned the Khasra numbers of their respective lands and, therefore, it is difficult for the LAC to give the correct status of the land owned by the Petitioners. It is further pointed out that as per the revenue record available with the LAC/L&B, it cannot be established whether the Petitioners in W.P.(C) 3822 of 2015 are the recorded owners or not of the lands claimed by them, other than Petitioner No.2 in the said petition. Here too it is stated that actual physical possession of the land in Khasra No.32/11 showing Petitioner No.2 as a recorded owner had been taken on 12th May 2000 and handed over to the DDA for the public purpose of the Rohini Residential Scheme.
12. It is further pointed out that Petitioner No.2 received compensation of Rs.15,34,507/- – (minus) TDS of Rs.28,603/- by a cheque dated 24th May 2002. This has not even been denied by the Petitioners in terms of the averment in para 9 of the petition. It is accordingly averred by the LAC that no case is made out for grant of any relief under Section 24(2) of the 2013 Act.
13. Applications being CM 31908 of 2019 in W.P.(C) 3822 of 2015 and CM 31909 of 2019 in W.P.(C) 3791 of 2015 have been filed by both sets of Petitioners on 15th July 2019 seeking to amend the writ petitions in view of certain developments. In these applications it is disclosed for the first time that “the land owners relating to the present acquisition had filed the writ petitions from which a special leave to appeal was filed before the Hon‟ble Supreme Court of India.” A special leave petition was filed in the Supreme Court which came to be decided in Ram Dhari Jindal Memorial Trust v. Union of India (2012) 11 SCC 370 striking down a notification dated 27th October 1999 issued under Section 17(1) of the LAA dispensing with the procedure of hearing objections under Section 5A of the LAA. The Supreme Court directed that a fresh enquiry under Section 5A LAA should be conducted. Thereafter, on 20th March 2013 a fresh declaration under Section 6 of the LAA was issued. It is averred that since this declaration under Section 6 LAA was issued only on 20th March 2013, much beyond the period of 1 year after the judgment of the Supreme Court, it was bad in law.
14. In para 10 of both applications it is averred that at the time of filing of the writ petitions in 2015, the Petitioners were not aware of the aforementioned declaration and further that since the lands of the Petitioners had been included, therefore, they could not challenge the said declaration under Section 6 LAA. Permission was sought in the applications to amend the writ petitions to include paragraphs in the factual narration in both petitions to challenge the said notification dated 20th March 2013 and to further seek the relief that Award No.4/2002-03 should be deemed to have lapsed. Reference is also made to the decision of the Supreme Court in Padma Sundara Rao v. State of Tamil Nadu (2002) 3 SCC 533.
15. As far as these applications are concerned, Ms.Anusuya Salwan, learned counsel appearing for the Petitioners, referred to a copy of the notification under Section 6 LAA issued on 20th March 2013 and pointed out that some of the Khasra numbers which formed the subject matter of these petitions had been included in the said notification. Here when pointedly asked, Ms. Salwan referred to the lands in Khasra Nos.10/2/3(1-07), 10/9/1 and 10/1/51. While a perusal of the said notification did not clearly indicate this to be the position, even assuming that some of the lands were indeed included therein, the delay in the Petitioners seeking to amend the writ petitions more than 6 years after the said notification was in the public domain has not been satisfactorily explained. The averment in para 10 in each of the applications that at the time of filing of the writ petitions, the Petitioners were not aware of the said declaration under Section 6 LAA is too weak to merit acceptance.
16. Ms. Salwan sought to place reliance on the decision of this Court in Sunil Goel v. The State 211 (2014) DLT 382 (DB) wherein this very declaration under Section 6 of the LAA dated 20th March 2013 was quashed as far as the Petitioners in those cases were concerned.
17. As far as the above submission is concerned, it should be noted that the decision in Sunil Goel (supra) was delivered on 29th April
2014. The decision was in the public domain and if the Petitioners in the present petitions wanted to take advantage thereof, they ought to have filed the amended applications expeditiously or filed substantive writ petitions challenging the Section 6 LAA declaration to the extent that it covered some of the lands of the Petitioners which had been notified by an earlier declaration as well. Here it must be noted that even according to Ms. Salwan, not all of the lands mentioned in the present petitions are covered by the said declaration. It is not possible to accept the plea of the Petitioners that they were not aware of these developments and, therefore, they could not come to the Court earlier.
18. Therefore, without entering into the merits of the contentions whether the Petitioners would be covered by the decision in Sunil Goel (supra), this Court dismisses these two applications on the ground of laches.
19. To the extent that some of the lands of the Petitioners are not covered by the aforementioned declaration under Section 6 dated 20th March 2013, they would still continue to be governed by the Award No.4/2002-03. Here the difficulty in granting any relief to the Petitioners would be that the petition is clearly barred by laches. The mere fact that the 2013 Act may have come into effect on 1st January 2014 would not come to the aid of the Petitioners in explaining the inordinate delay by the Petitioners in approaching the Court for relief.
20. The legal position has been explained in the decision of the three Judge Bench of the Supreme Court of India in Indore Development Authority v. Shailendra (2018) 3 SCC 412 as under:
21. Notwithstanding that the petitions should fail on the grounds of laches, even on merits the Petitioners have not made out any case in their favour for grant of declaration of deemed lapsing of land acquisition proceedings under Section 24 (2) of the 2013 Act. For the purpose of that relief, apart from showing that the impugned Award is more than 5 years prior to the date of coming into force of the 2013 Act, the Petitioners have submitted that no compensation has been tendered or that actual physical possession of the land in question still with them.
22. On the aspect of compensation, it must be pointed out that in both writ petitions the categorical stand of the LAC is that compensation has been paid to a majority of the landholders. In fact, the Petitioners themselves have enclosed with the petitions copies of the „payment certificates‟ detailing the Khasra numbers and the amounts released to the relevant Department for the same. The mere fact that the amounts may be „meagre‟ would not give rise to a plea of failure to tender compensation. The grievance regarding „meagre compensation‟ will have to be redressed by the Petitioners seeking a reference under Section 18 of the LAA. In fact, as far as W.P.(C) 3822 of 2015 is concerned the full amount of compensation payable to Petitioner No.2, who is the only recorded owner as far as the land in Khasra No.32/11(1-06) is concerned, has been paid in full. The plea of these Petitioners that no compensation has been tendered to them therefore gives rise to a disputed question of facts which cannot be examined in this petition.
23. Turning to the question of possession, admittedly these lands were acquired for the public purposes of the Rohini Residential Scheme. In this regard, a reference may be made to the orders of the Supreme Court in Rahul Gupta v. Delhi Development Authority & Ors. [SLP(C) No. 16385-16388 of 2012] and in particular to the order dated 18th October 2016 which dealt with several interlocutory applications. In that order a reference was made to the earlier order passed by the Supreme Court on 10th March 2015 and the subsequent order dated 28th January 2016 whereby the interim order granted by this Court in the writ petitions from which the said SLPs arose was vacated. Thereafter, the Supreme Court observed as under: “We grant liberty to the Delhi Development Authority to produce a copy of this order in all matters, pertaining to land acquisition relating to the Rohini Residential Scheme, pending before the High Court, for vacation of similar interim directions. It is made clear that in case the applicant has re-entered possession or otherwise, he shall vacate the said land and hand over its possession forthwith to the Delhi Development Authority, failing which it shall be assumed to be in possession of the Delhi Development Authority, after the expiry of ten days from the passing of the instant order. With the aforesaid directions, these interlocutory applications stand disposed of.”
24. As explained by this Court in Mool Chand v. Union of India (2019) 173 DRJ 595 (DB), the above order of the Supreme Court applies across the board to all land acquired for the Rohini Residential Scheme.
25. Ms. Salwan then referred to an order dated 15th November 2016 passed by the Division Bench of this Court in WP (C) 858 of 2015 (Anil Kumar Jain v. Govt. of NCT of Delhi) where acquisition of land (under Award No.4/2002-03) comprising Khasra No.20//20/1 (1-04) in village Pansali was held to have lapsed. A perusal of the said order reveals that it makes no reference to the orders passed by the Supreme Court in Rahul Gupta v. Delhi Development Authority (supra) wherein it has categorically been held that possession would be deemed to be with the DDA if not handed over within 10 days of the order dated 18th October 2016. Also from the said order referred to by Ms. Salwan, it is not clear what the position as far as payment of compensation in that case was. Here it is very clear that compensation has already been paid to a majority of the land owners and the grievance is only as regards payment of „meagre‟ compensation which cannot be a ground for issuance of such a declaration under Section 24(2) of the 2013 Act. Consequently, the said order is of no avail to the Petitioners.
26. Reference was then made by Ms. Salwan to order dated 18th December 2017 in WP (C) 3715 of 2016 (Vipin Chugh v. Lt. Governor of Delhi) which again was in respect of land in Khasra No.20/19(1-5) located in village Pansali. Here again reference was made only to the decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki (supra) without any reference to the orders of the Supreme Court in Rahul Gupta v. Delhi Development Authority (supra) referred to above concerning possession of lands acquired for the Rohini Residential Scheme. No reference was also made to the decision of the Supreme Court in Mahavir v. Union of India (2018) 3 SCC 588 which was rendered on 8th September, 2017 which concerned the issue of laches and delay. Incidentally, this decision was subsequently reaffirmed by the three Judge Bench of the Supreme Court in Indore Development Authority v. Shailendra (supra) delivered on 8th February 2018.
27. Ms. Salwan sought to argue that all the issues decided in Indore Development Authority v. Shailendra (supra) including laches and delay have been referred to the Constitution Bench of the Supreme Court. In Mool Chand v. Union of India (supra) this Court has explained that this is not the position. It may be noted here that the reference made by a Constitution Bench in Indore Development Authority v. Shyam Verma (2018) 4 SCC 405 regarding the correctness of the aforesaid decision in Indore Development Authority v. Shailendra (supra) is only as regards the extent to which it differs from the earlier view of the Supreme Court in Pune Municipal Corporation v. Harakchand Misrimal Solanki (2014) 3 SCC 183 regarding the tendering of compensation, and not on the question of petitions seeking declaration under Section 24 (2) of the 2013 Act being barred by laches. This legal position was explained by this Court recently in its decision in Mool Chand v. Union of India 2019 (173) DRJ 595 DB.
28. For all of the aforementioned reasons, the Court finds no merit in either of these petitions and none of the reliefs as prayed for can be granted. The petitions are accordingly dismissed.
S. MURALIDHAR, J.
TALWANT SINGH, J. JULY 18, 2019 tr