Azhar Ahmed v. Union of India and Ors.

Delhi High Court · 05 Feb 2018 · 2018:DHC:879-DB

G. S. Sistani; Sangita Dhingra Sehgal

W.P.(C) 7927/2016

2018:DHC:879-DB

property petition_allowed Significant

AI Summary

The Delhi High Court held that acquisition proceedings lapse under Section 24(2) of the 2013 Act if compensation is neither paid nor possession taken within five years, and directed compensation be paid as per the new Act.

Full Text

W.P.(C) 7927/2016
HIGH COURT OF DELHI
Date of Judgement: 5th February, 2018

W.P.(C) 7927/2016
AZHAR AHMED .....Petitioner
Through: Shri Sonal Anand and Shri Ayush Sai, Advocates.

VERSUS

UNION OF INDIA AND ORS. .....Respondents
Through: Shri Paritosh Anil, Advocate for DDA.
Mr. Akhil Mittal, Advocate for LAC.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S. SISTANI, J. (Oral)

JUDGMENT

1. This is a petition under Article 226 of Constitution of India filed by the petitioner seeking a declaration that the acquisition proceedings with respect to land bearing Khasra No. 57 (1-08), measuring

01 Bigha and 08 Biswas, situated in the revenue estate of village Behlolpur Khedar, Tehsil Mehrauli, New Delhi (hereinafter referred as the 'subject land') are deemed to have lapsed in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as '2013 Act') as neither the possession of the subject land has been taken nor the compensation has been paid to the petitioner. 2018:DHC:879-DB

2. A Section 4 notification of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was issued on 23.06.1989 followed by a declaration under Section 6 of the act was made on 22.06.1990. Thereafter, an Award bearing No. 15/92-93 was pronounced by the Land Acquisition Collector.

3. It is the case of the petitioner that neither the compensation with respect to the subject land has been tendered nor the possession of the subject land has been taken.

4. The counsel for the petitioner submits that since the compensation has not been tendered, the petitioner would be entitled to a declaration compensation under Section 24 (2) of the 2013 Act. Learned counsel for the petitioner further submits that the case of the petitioner would be fully covered by the decision rendered by the Apex Court in Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183 as compensation has not been tendered to the petitioner.

5. Counter affidavit has been filed by the LAC. Para 6 of the counter affidavit reads as under:-

"6. It is submitted that the possession of the land of the village was taken over to the DDA on the spot whereas the compensation of Khasra no.57 min (1 Bigha 8 Biswa) has been assessed in the name of Sh. Azhar Ahmad S/O Mohd. Nazar as per Naksha Muntzinam at Shumar no.301. as per the record the compensation is not paid to the petitioner (shumar no.301) till date and the petitioner is only entitled for compensation "

6. Counter affidavit has been also filed by the DDA. Para 3 (i) of the counter affidavit reads as under:-

"3 (i) I say that the physical possession of the acquired land falling in Khasra No.57 (28-07) measuring 370 bigha 19 biswa, has been handed over to the respondent no.3- Delhi Development Authority by the Lac/Land & Building Department, Govt. of National Capital Territory of Delhi on 21.04.2006. A copy of the possession proceedings in respect of Award No.15/92-93 of village Behlolpur Khader dated 21.04.2006 is annexed herewith as Annexure R-1. It is further submitted as regards the status of disbursement of compensation to the recorded owners can be correctly responded to by the Land Acquisition Collector/Land and Building Department, Government of NCT of Delhi. The compensation has already been sent to the Land & Building Deptt, GNCTD under the Y.R.F. Scheme for amount of Rs.10 crores vide cheque No. 887574 dated 28.08.1990 b DDA. The petitioner is therefore an unauthorized encroacher on the land under dispute."

7. We have heard learned counsel for the parties.

8. Having regard to the fact that admittedly compensation has not been paid to the petitioner, we are of the view that the case of the petitioner would be covered by the decision rendered by the Supreme Court of India in the case of Pune Municipal Corporation & Anr. (supra). Paras 14 to 20 read as under:

“14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates

the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section (2). The contingencies contemplated in Section 31(2) are: (i) the persons interested entitled to compensation do not consent to receive it (ii) there is no person competent to alienate the land and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.

15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.

16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.

10,469 characters total

17. While enacting Section 24(2), Parliament definitely had in its view Section 31 of the 1894 Act. From that one thing is clear that it did not intend to equate the word “paid” to “offered” or “tendered”. But at the same time, we do not think that by use of the word “paid”, Parliament intended receipt of compensation by the landowners/persons interested. In our view, it is not appropriate to give a literal construction to the expression “paid” used in this subsection (sub-section (2) of Section 24). If a literal construction were to be given, then it would amount to ignoring procedure, mode and manner of deposit provided in Section 31(2) of the 1894 Act in the event of happening of any of the contingencies contemplated therein which may prevent the Collector from making actual payment of compensation. We are of the view, therefore, that for the purposes of Section 24(2), the compensation shall be regarded as “paid” if the compensation has been offered to the person interested and such compensation has been deposited in the court where reference under Section 18 can be made on happening of any of the contingencies contemplated under Section 31(2) of the 1894 Act. In other words, the compensation may be said to have been “paid” within the meaning of Section 24(2) when the Collector (or for that matter Land Acquisition Officer) has discharged his obligation and deposited the amount of compensation in court and made that amount available to the interested person to be dealt with as provided in Sections 32 and 33.

18. 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad[1]) that where a power is given to do a certain thing in a certain way, the thing must W.P. (C) No.866/2017 be done in that way or not at all. Other methods of performance are necessarily forbidden.

19. Now, this is admitted position that award was made on 31.01.2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs.27 crores) was deposited in the government treasury. Can it be said that deposit of the amount of compensation in the government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes[2], relying upon the earlier decision in Prem Nath Kapur[3], has held that the deposit of the amount of the compensation in the state's revenue account is of no avail and the liability of the state to pay interest subsists till the amount has not been deposited in court.

20. From the above, it is clear that the award pertaining to the subject land has been made by the Special Land Acquisition Officer more than five years prior to the commencement of the 2013 Act. It is also admitted position that compensation so awarded has neither been paid to the landowners/persons interested nor deposited in the court. The deposit of compensation amount in the government treasury is of no avail and cannot be held to be equivalent to compensation paid to the landowners/persons interested. We have, therefore, no hesitation in holding that the subject land acquisition proceedings shall be deemed to have lapsed under Section 24(2) of the 2013 Act.”

9. Applying the law laid down to the facts of the present case, since the award having been announced more than five years prior to the commencement of the 2013 Act and, having regard to the fact that the compensation has not been tendered, the petitioner is entitled to a declaration that the acquisition proceedings initiated under the Land Acquisition Act, 1894 with regard to the subject land are deemed to have lapsed. It is ordered accordingly.

10. Learned counsel for the petitioner, at this stage, submits that the petitioners would be satisfied if the compensation is paid to them as per 2013 Act as the possession of the subject land has already been taken over by the respondents. As prayed, it is directed the petitioners be paid the compensation as per the New Act to be paid within one year from today.

11. The writ petition stands disposed of in the above terms. CM APPLN. No. 32912/2016 The present application is disposed of in view of the order passed in the writ petition. G.S.SISTANI, J. SANGITA DHINGRA SEHGAL, J. FEBRUARY 5, 2018 gr

Azhar Ahmed v. Union of India and Ors.

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation