Gajraj v. Govt of NCT of Delhi & Ors

Delhi High Court · 16 Jan 2018 · 2018:DHC:420-DB

G. S. Sistani; Sangita Dhingra Sehgal

W.P. (C) No.12131/2015

2018:DHC:420-DB

property petition_allowed Significant

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The Delhi High Court held that land acquisition proceedings lapse under Section 24(2) of the 2013 Act if neither possession is taken nor compensation paid or deposited in court, regardless of award date, and declared the subject acquisition lapsed without deciding title.

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W.P. (C) No.12131/2015 HIGH COURT OF DELHI
Date of

JUDGMENT

: 16th January, 2018

W.P.(C) 12131/2015
GAJRAJ ..... Petitioner
Through: Mr.Sunil Kumar Goel, Advocate.

versus

GOVT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr.Yeeshu Jain, Standing Counsel with Ms.Jyoti Tyagi, Advocate for respondent-LAC/L&B.
Mr.Arun Birbal, Mr.Sanjay Singh and Mr.Ajay Birbal, Advocates 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 seeking a declaration that the acquisition proceedings in respect of the land comprised in Khasra No.281/4(10-11), 282/4(10-

3) & 80(2-8) total area 23 bigha and 02 biswas to the extent of 1/12th share measuring 01 bigha 19 biswas and 03 biswasi situated in the revenue estate of village Ghari Mandu, Shahdara, Delhi (hereinafter referred to as „the subject land‟) stand 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 has been taken nor compensation has been paid to the petitioner. 2018:DHC:420-DB

2. The necessary facts to be noticed for disposal of this petition are that a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟) was issued on 23.06.1989, a Notification under Section 6 of the Act was issued on 20.06.1990 and an Award bearing No.13/1992-93 was passed on 19.06.1992. 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.

3. Counsel for the LAC submits that the subject land vests in Gaon Sabha, thus, the petitioner would not be entitled to claim any compensation. Mr.Jain has opposed this petition on the ground that the petitioner is not a rightful owner. In support of his submissions, he relies on paragraph 6 & 7 of the counter affidavit, which read as under:

“6. That it is submitted that for the purpose of planned development of Delhi, the answering respondent issued a Notification u/s 4 of the Land Acquisition Act, 1894 on 23.6.1989 which was followed by Notification u/s 6 of the said Act dated 20.6.1990 for planned development of Delhi for the acquisition of the lands falling in village GarhiMendu. That an Award bearing No.13/92-93 dated 19.6.1992 was also passed and the actual vacant physical possession of the subject land including other lands of the said notification was taken on the spot by preparing possession proceedings dated 25.1.2000 and handed over to the DDA on the spot. The petitioners have also admitted about the execution f the possession proceedings by the Government as the petitioners have admitted that symbolic possession of the subject land was taken by the Government. Needless to say that the petitioners never challenged the acquisition proceedings and the possession report which became final and binding on the petitioners as the land vested with the Government absolutely without any encumbrances.

7. That it is submitted that the petitioners were never entitled to claim any compensation as the recorded owner of the subject land was Gaon Sabha, as such, the assertion by the petitioners that no compensation has been paid to them finds no merits and the writ petition deserves to be dismissed. The compensation was however not paid to the Gaon Sabha as well”.

4. Per contra, learned counsel for the petitioner submits that the objection raised by Mr.Jain, as far as title of the land is concerned, be kept open to be decided in appropriate proceedings. Counsel submits further that an identical issue had arisen before another Division Bench of this Court in the case of Sanjeev Solanki Vs. Delhi Development Authority and Ors, W.P. (C) 1999/2015, decided on 24.01.2017. Counsel submits that a similar view has also been expressed by this Court in the case of Parshotam Joshi vs. Govt. of NCT of Delhi & Ors., W.P. (C) 4255/2016, decided on 08.11.2017.

5. We have heard the counsel for the parties.

6. Taking into consideration the fact that neither the compensation has been paid nor possession has been taken over, the case of the petitioner would be fully covered with the decision rendered by the Apex court in the case of Pune Municipal Corporation & Anr. (supra), more particularly, paragraphs 14 to 20 of the judgment, which 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.

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.

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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.”

7. As far as the objection raised by the counsel for the LAC with regard to the land being vested in the Gaon Sabha is concerned, we deem it appropriate to follow a decision rendered by the Division Bench of this Court in the case of Sanjeev Solanki (supra), paragraph 5 of which reads as under:-

“5. While we have declared that the subject acquisition has lapsed, it is made clear that this would not amount to giving title to the petitioner or perfecting the petitioner’s title inasmuch as Mr.Jain has taken the plea in the counter-affidavit filed on behalf o the respondent no.2 that the Gaon Sabha has been shown as the recorded owner. This fact is disputed by the learned counsel for the petitioner. But, we are not entering into the controversy of title which may be sorted out elsewhere. Insofar as the acquisition is concerned, the same has lapsed because neither physical possession was taken over nor compensation was paid.”

8. Having regard to the submissions made and the stand taken by the LAC in the counter affidavit, 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 in the following cases stand satisfied: (1) Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at (2014) 3 SCC 183; (2) Union of India and Ors v. Shiv Raj and Ors., reported at

(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, W.P.(C).2294/2014 decided on 12.09.2014 by this Court; and (5) Girish Chhabra v. Lt. Governor of Delhi and Ors; W.P.(C).2759/2014 decided on 12.09.2014 by this Court.

9. Since, the award having been announced more than five years prior to the commencement of the 2013 Act and compensation having not been tendered, the petitioner is entitled to a declaration that the acquisition proceedings in respect of the subject land are deemed to have lapsed. It is ordered accordingly. However, we have not expressed any opinion on the title of the parties. The question of title of the subject land is left open to be decided in the appropriate court of jurisdiction.

10. The writ petition stands disposed of in above terms. G.S.SISTANI, J. SANGITA DHINGRA SEHGAL, J JANUARY 16, 2018/ ssc

Gajraj v. Govt of NCT of Delhi & Ors

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