Ranbir Singh v. Union of India & Ors.

Delhi High Court · 02 Feb 2018 · 2018:DHC:840-DB

G. S. Sistani; Sangita Dhingra Sehgal

W.P. (C) No.8677/2014

2018:DHC:840-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 deposited in court and possession is not taken, granting the petitioner relief for 2 biswas of land.

Full Text

W.P. (C) No.8677/2014 HIGH COURT OF DELHI
Date of

JUDGMENT

: 02nd February, 2018

W.P.(C) 8677/2014
RANBIR SINGH ..... Petitioner
Through: Mr.S.P.Singh Rathore, Advocate.

versus

UNION OF INDIA & ORS ..... Respondents
Through: Mr.Bhagvan Swarup Shukla, CGSC with Mr.Suraj Kumar, Advocate for respondent no.1/UOI.
Mr.Sanjay Kumar Pathak, Mrs.K.K.Kaomudi Kiran Pathak, Mr.Sunil Kumar Jha and Mr.Kushal
Raj Tater, Advocates for respondent/LAC-L&B.
Mr.S.R.Sharma, Advocate for respondent/DDA.

CORAM:

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

1. This is a petition under Article 226 of the Constitution of India filed by the petitioner. The petitioner seeks a declaration that the acquisition proceedings in respect of land/property of the petitioner having Khatoni of the same comprised in Khasra No.201 situated at the main road Village-Khichri Pur, Delhi measuring 981 square metres 2018:DHC:840-DB (hereinafter referred to as „the subject land‟) stands lapsed in view of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as „2013 Act‟), as neither the physical possession of land of petitioner measuring nor compensation has been paid to the petitioner.

2. Counsel for the petitioner submits that he seeks relief only to extent of 2 biswas of land of which the possession has not been taken.

3. In this case, a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟) was issued on 13.11.1959, a declaration under Section 6 of the Act was issued on 20.06.1996 and an Award bearing No.28-B/70-71 was passed. Counsel for the petitioner submits that the case of the petitioner is fully covered by a decision rendered by the Apex Court in the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183, as neither possession has been taken nor compensation has been paid to the petitioner.

4. Mr.Pathak, counsel appearing for LAC submits that the present petition is not maintainable as the petitioner is not the owner of the land in question, even otherwise, he submits that as far as the compensation is concerned, the same has been deposited under Sections 30/31 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟), supporting documents have been placed on record. He submits that the petitioner is not the owner of the 981 square metres of land and relying on his counter affidavit, he further submits that the possession of Khasra No.201/3 min (0-2) of Village Khichri Pur was not taken and the petitioner would only be entitled to a declaration with respect to 2 biswas of land in Khasra No.201/3 min. He submits that the petitioner cannot claim any relief beyond 2 biswas of land. Paras 10 & 12 of the counter affidavit filed by LAC read as under: “10. That in so far as status of possession is concerned, possession of Khasra No.201/1(8-4), 201/2(2-9) and 201/3 min (0-13) of Village Khichri Pur was taken over on 17.11.1975. However, possession of Khasra No.201/3 min (0-2) of Village Khichri Pur was not taken over as per possession proceedings dated 21.11.1975 and 10.2.1976. Petitioner is falsely disputing the factum of taking over of possession. It is denied that the possession of the subject land was not taken over by the respondents. As stated above, the possession of land in Khasra No.201 was taken over except small part of Khasra No.201/3 measuring 02 biswa. If the petitioner, thereafter, has reentered or retained the possession of acquired land either in 1991 when he claims to have leased out to his so called tenant or at any other point of time, such possession is clearly illegal and he is only an unauthorized encroacher or trespasser on Government Land. Petitioner cannot be permitted to take benefit of his own wrongs. However, it is denied that the petitioner is in possession of the subject land. This is a disputed question of fact required to be decided on detailed trial/evidence and cannot be adjudicated in writ proceedings for want of requisite evidence and material on record.

12. That as regards status of payment of compensation of acquired land is concerned it is submitted that as per the information available in the Naksha Muntazamin, a reference filed by the recorded owner, namely, Sh.Khacheru and others under Section 18 of the Old Act had been sent to the Court of learned Additional District Judge, Delhi vide File No.F.13(182)75/Lit.I/1023-1024 dated 17.9.1976 regarding Item (Shumar) No.75 to 78 of Naksha Muntazamin. It is further submitted that LAC No.241/76 of Sh.Khacheru was informed to have been stayed vide No.28B/241/76/B.B.G/3035 dated 19.5.78 issued by the learned Court of Sh.B.B.Gupta, Additional District Judge on 10.04.78 in respect of item/entry number 342, 343,75,76,77,78, 51, 52 & 555 of Naksha Muntazamin. Further, the enhanced compensation has also been sent by file No.F.13(182) regarding item No.75. The enhanced compensation relating to item No.75, 76, 77, 78 & 342, 343 in the name of Khacheru & Inder had been prepared and it had been sent in land acquisition cases being LAC No.74/76 and LAC No.178/81. As per orderdated 13.7.76 of the LAC compensation of Khasra No.186 min(5-7), 189(5-14) (some part illegal due to dilapidated record) etc. total 14-16 in the sum of Rs.17,119.00 for item No.75 in the name of Inder had been passed. For entry No.78, it is submitted that as per order of LAC (DS) dated 23.12.1977 order regarding payment of compensation in the sum of Rs.12,261.21 for the land of item No.78 comprised in Khasra Nos.336 min, 186 min, 187 min, 197 min, 198 min total 10-12 has been passed in favour of Sh.Khacheru. As per order of LAC (DS), order regarding payment of compensation in the sum of Rs.17,149.43 for the land in respect of Item No.78 of Khasra No.336, 186, 187, 197, 198 has been passed. As per order dated 7.5.1977 of the LAC (DS) order was passed regarding sending the payment of compensation in the sum of Rs.26,267.12 under Section 30-31 of Khasra No.336 min, 186 min, 187 min, 197 min, 198 min, 39 min(2-3), 42 min (4-6) and 201 min(5-12) total 22-12 to the Court of learned, ADJ, Delhi. As per order dated 7.5.77 of LAC (DS) compensation in respect of Khasra No.201 min (5-12), 39 min (2-5),199(4-7), 191 (1-7), 192(1-1) and 41(3-18) total 27-4 had been sent to the Court of learned ADJ, Delhi under Sections 30-31 of LA Act”.

5. Counsels for DDA and LAC submit that as far as remaining land is concerned, even photographs placed on record alongwith application under Order XXXIX Rule-1 & 2 of Code of Civil Procedure, 1908 (in short „CPC) shows that DDA is in possession of the land and some construction is being carried out.

6. We have heard the counsel for the parties.

7. In the case of Pune Municipal Corporation & Anr.(supra) in paras 14 to 20, it was held 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.

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 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.

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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.”

8. Having regard to the submissions made and the stand taken by LAC in counter affidavit that the compensation has been deposited in the court of Additional District Judge under Sections 30/31 of the Act, the possession of the land having been taken except 02 biswas in Khasra No.201/3 min and the petitioner has restricted his claim only in respect of 02 biswas of land, we are of the considered view that the necessary ingredients for the application of Section 24(2) of the 2013 Act as has been interpreted by the Supreme Court of India and this Court stand satisfied.

9. Since, the award having been announced more than five years prior to the commencement of the 2013 Act, the petitioner is entitled to declaration that the acquisition proceedings in respect of the subject land 2 biswas are deemed to have lapsed. It is ordered accordingly.

10. The writ petition stands disposed of. CM No.42797/2016 (stay) The application stands disposed of, in view of order passed in the writ petition. G.S.SISTANI, J. SANGITA DHINGRA SEHGAL, J FEBRUARY 02, 2018 ssc

Ranbir Singh v. Union of India & Ors.

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