Madhu v. Govt. of NCT of Delhi and Ors.

1. Pleadings are conipl^i^A<ib^^ present Writ Petition is set down for final he^in&j^ •

2. This is a petition under Artitfe2-26 bf C of Indiafiled by the petitioner seeking a declaration that the acquisition proceeding with respect to land'dftthe'^^Mon^ in Khasra No. 750 (1-0), 751 (3-0), 752 (1-02), total admeasuring 5 Bigha 2 Biswas, situated in the revenue estate of Village Malikpur Kohi alias Rang Puri, New Delhi (hereinafter referred as the 'subject land') is deemed to have lapsed in view of Section 24(2) ofthe Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to W.P.(C) 5561/2015 2018:DHC:8530-DB as '2013 Act'), as neither physical possession of the subject land has been taken nor the compensation in respect thereof has been paid to the petitioner.

3. The petitioner claims to be a recorded owner and in possession of the subject land having being purchased by means of five Sale Deeds dated 12.05.1989, 20.05.1992, 24.08.1992, 02.08.1991 and 15.07.1991. It is the case of the petitioner that the land in question is recorded in the revenue records in the name of the petitioner. Copy of the Khasra Girdawari of the land in question has been placed on record.

4. A notification under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as 'the: issued on 27.06.1996 followed by a declaration under Section 6 of the Act made on 24,06.1997. Thereafter ah Award:!bd^ Award No. 7/98-99 was rendered on22.06.1999:;f ^>J -\ N 'f'-

5. Mr. Vishal Mann, lea^eidyCbUnseK^^^ petitioner submits that neither the possessioii oflEt' land was taken nor the compensation in that regard was paid by the respondents. In these circumstances, the petitioner, would-be^^^ to a declaration under Section 24 (2) of the 2013 Act (hereinafter referredto as 'the New Act').

6. Mr. Jain, learned counsel for the LAC submits that the possession of the subject land has been taken, however the compensation in respect thereof has not been paid. Learned counsel further submits that as per the record available with them, the Gaon Sabha is the owner of the part of the land. Further, counsel for the DDA also W.P.(C) 5561/2015 Page 20/9 \ submits that the possession ofthe subject land was handed over to the DDA on 31.12.2013.

7. As far as the objection with regard to the ownership being vested with Gaon Sabha is concerned, counsel for the petitioner submits that the same is also not borne out from the records asthe name of the petitioner finds mentioned in the Khasra Girdawari as well as in the award. Counsel further submits thatthe compensation was also assessed in the name of the petitioner, which is evident from the copy of award which has been placed on record. However, compensation could not be tendered to the recorded owner. In support ofhis submission, counsel, has placed reliance in the case • oi Magnum Promoters Private^ Vs. Union of India reported in (2015) 3Supreme CoUrtCases 327. Relevant Para 18, 20, 21, 23, 25 and 27are reproduced;as below:- " 18. The official dri^nc^'recf^dproduced before us for our perusatasper imr^ discloses that the "kabza karyavdhi/^ proceedings of the acquired land 27.12.2013. As per the record, on 27^2.2013, the taking over of possession was done only to the extent of the vacant portion of the appellant's land, whereas the building structure situated oh the land could not be taken on that day as the demolition squad was not availablefor Respondent 4. Thus, it is clearfrom the said document available on record that the possession ofthe building structure situated on the appellant's land was not taken by him on 27.12.2013. As per the possession memo available in the record, it is recorded in the said proceeding that the further action for taking over possession in respect of the land were to be continued by the Land Acquisition Collector on 28.12.2013 and W.P.(C) 5561/2015 Page[3] of[9] there is no record to show as to whether the action continued on 28.12.2013 in this regard. The alleged taking over ofpossession of the land involved in this appeal was done on 31.12.2013, as per the document Annexure R-1, memo ofpossession taking possession of the acquired land in AwardNo. 07/98-99 is signed by the officers oftheLandand Building Departmentofthe third respondent; the same was alleged to have immediately been delivered to the DDA officials i.e. Respondent 5 on the same day. According to Respondents 3 and 4, the possession of the land involved in this appeal has been allegedly taken by them without any objections being raised by the appellant owner. The above said plea taken by them cannot be accepted by;iu^ as the same is wholly contrary to thefactualpositiqn regardingpossession of the land. The questiori^^^;^^^^ objection to Respondents 3 and 4for of the land by the appellant did not arise 4t allfor the reason that notice in this regardyvas hotissued to it calling upon it to hand over possessiorifpf^the land to the Land Acquisition Collector^'':. "20. The abovesaid}^^ narrated bythe Land Acquisition 'Gollecipif,-pi his affidavit is a deliberate intention to misrepresentfacts to justify the alleged taking over possession of the land on 31.12.2013. Theroforesaid eXj^Janafipnfurnished bythe Land Acquisition 'Collector 'in his affidavit for the alleged taking over possession of the acquired land is wholly unnecessary and irrelevant. Therefore, the said explanation by him cannot be accepted by us. " "21.The averments made at Para 10 of the response affidavitofthe Land Acquisition Collector are contrary to the "kabza karyavahi (possession taking over proceedings) dated 27.12.2013 and the reason stated in the said memo is that the Land Acquisition Collector w IV.R(C) 5561/2015 Page[4] of[9] could not take possession of the building structure situated on the acquired appellant's land, as the demolition squad was not available on that day. The possession ofthe land taking over document Annexure R-1 to the response affidavit dated 31.12.2013 produced by the.LandAcquisition Collector in which it is stated that thepossession ofthe land ofthe appellant has been taken on 31.12.2013 the said averment in the affidavit is contradictory to the "kabza karyavahi" document dated 27.12.2013 available in the original record. The contradictory statements made by the Land Acquisition Collector in his response affidavit at Para 10 cannot be accepted by us. " "23.. Therefore, the pled of the Additional District Collector/LandAcqiiisition Gpliector andits officers to have allegedly taken overjjpossession of the land as stated at Para 10 ofthe-response affidavit isfalse and it amounts to confeinpt of this Court committed by them, as they have willfullyDisobeyed the interim order ofthis Court dated<04^08Md0B. Therefore, the plea of taking over possMsim,pf'lcm the appellant either on 27.12.2013.MS pei^.fl^^ record or on 31.12.2013 as pen-,d^ R-1 cannot be accepted by us. Thef^espo^d^ have misrepresented certain relevant facts to this Court by filing the abovereferred response affidavit with an oblique motive to deny the-ydluable.s^^ right accrued in favour of the appdlaht'under Section 24 (2) of the 2013 Act. Hence, the conduct of Respondent 4 and officials ofRespondent 3 in misrepresenting thefacts is deprecated by us." "25. XXXXXAtpara 19 ofthe above case, it has been further clearly held that the memo of taking over possession oftheacquiredland must be in thepresence of independent witnesses, undisputedly the same has not been done byRespondents 2, 3 and 4 in the case on W.P.(C) 5561/2015 Page 5of[9] hand. Therefore, in view ofthe principles laid down in the above case, the plea ofthe respondents that as per memo ofpossession dated 31.12.2013 thepossession of the said land of the appellant was taken and handed over to the DDA, Respondent 4 on the same day is not accepted by us as it is done infact and could not have been done in view of the interim order referred to supra and also the same has not been done in the presence ofindependent witnesses as required in law. " ''21. Thus, in view of the above decisions, this Court has clearly laid down the legal principle as to how taken over physical possession of the acquired land means the actual taking ofpossession of it from the landowners/interestedpersons."

8. Mr. Mann, counsel for the; petitibnp^^^^^^ that in the case of Magnum Promoters Private Limtied (supra), the physical possession was alleged to have be.fen'taken on 31.12.2013 and also handed over on the same dat^, which was not found to be acceptable by the Supreiri'e;Tpourt inthe said case. Counsel has also submitted that^g^^eltipi^ the LAC regarding locus standi of the petitioner is misplaced in view of the observations made by the Supreme Court in the case of Govt. ofNCTofDelhi vs. Manav Dharma Trust'& Anr. 'r€^6rXQ[6]. in 2017 (6) SCC 751, wherein the rights of subsequent purchaser have been recognized. He further submits that the petitioner has purchased the land in question even prior to the issuance ofnotification under Section 4 of the Act and thus the objection with regard to the ownership raisedby the respondent(s) is misplaced. W.P.(C) 5561/2015 Pcge 6of[9]

9. We have heard learned counsel for the parties.

10. As per the counter affidavit filed by the LAC, compensation with regard to the subject land has not been tendered because the same was not received from the requisitioning department. Para 5 of the Counter affidavit reads as under That it is submitted that the possession of the land bearing khasra no. 750(1-0), 751(3-0), 752(1-02), total admeasuring 5 Bigha and 2 Biswa was duly taken and handed over to DDA on 31.12.2013 and Compensation has not been paid because not received from the requisitioning department:^ It is relevant to mention here that out of the aforesaid khasra nos. following khasra no. i.e. 750(0-12-1/2), and752(1-02) are vested in Gram Sabha U/s 81 ofDLR Act. "

11. In relation to the objection raised by the counsel for the LAC with regard to the land being vested in Qaon Sabha is concerned, we deem it appropriate to follow a decision rendered by the Division Bench of this Court m'tHie:'^ Solanki Vs. Delhi Development Authoritjj/dn^^rk^V^^ (C) 1999/2015, decided on 24.01.2017, paragraph 5 ofwhich reads as under:-

W.P.(C) 5561/2015 Page 7of[9] neither physical possession was taken over nor compensation was paid."

12. Having regard to the submissions made and the categorical assertion made in the counter affidavit filed by LAC, makes it clear that one of the two ingredients of Section 24 (2) of the Act has admittedl}^ not been fulfilled. As far as the possession is concerned, taking into consideration the observations made by the Apex Court in the case of Magnum Promoters Private Limited Vs. Union of India, in our view, the LAC has not been able to satisfy this Court that the actual physical possession iwas taken. We find it highly unusual that the possession was taken one day prior to coming into force of the 2013 Act. Surprisingly^ it is claimed that it was further handed over to DDA on thp same date makes such a practice has ' r ' ' It •/'. •'" been deprecated by the Supreme! Court as well. Having regard to the reasons given here^ iniabove,^^^ w^^ of the view that the petitioner is entitled; tO;l^;a'j3d^^^pn that the acquisition proceedings in respect land stand lapsed, as admittedly compensation has not been tendered to the petitioner. It I,:. is ordered accordingly.-^; r

13. However, we make it clear that we have not expressed any opinion on the title of the subject land. The question of title of the subject land is left open to be decided in the appropriate court of jurisdiction.