Ram Kishan & Others v. Union of India & Anr.

1. This writ petition was admitted on 06.02.2017.

2. This is a petition under Article 226 of the Constitution of India filed by the petitioners. The petitioners claim to be the owners of land comprised in Khasra No.399/265 (11-11) situated in the revenue estate of village Chilla Saroda Bangar, Delhi (hereinafter referred to as „the subject land‟). The petitioners seek a declaration that the acquisition proceedings initiated in respect of the subject land are deemed to have 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 possession has been taken nor compensation has been paid to the petitioners. 2018:DHC:67-DB

3. The necessary facts to be noticed for disposal of this writ petition are that a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act‟) was issued on 17.11.1980. A Section 6 declaration was made on 29.09.1981. Thereafter, an Award bearing no.39/82-83 dated 13.09.1982 was rendered by the Land Acquisition Collector (LAC). As per the writ petition though the area in Khasra No.399/265 was 68 bighas 03 biswas, but compensation was remitted by the LAC only with respect to 30 bighas in a reference filed under Section 30-31 of the Act. It is also the case of the petitioners that the necessity of filing of reference arose on account of dispute regarding entitlement of payment of compensation.

4. Counsel for the petitioners contends that the reference court of the Additional District Judge (ADJ) in LAC No.120/2/2006 dated 12.02.2011[7] while deciding the reference under Section 30-31 of the Act held the petitioners to be entitled to 41 bighas and 11 biswas but since the compensation was remitted for only 30 bighas so compensation for 30 bighas was ordered to be paid to the petitioners and possession of 11 bighas and 11 biswas was never taken nor compensation was remitted or offered to be paid to the petitioners. Copy of the judgment dated 12.02.2007 has been placed on record. Counsel submits that this judgment has attained finality. Learned counsel for the petitioners relies on the counter affidavit filed by the LAC, as per which it has been categorically stated that physical possession of 11 bighas and 11 biswas was not taken by the Government.

5. As far as objection raised by the counsel for the LAC that the petitioners are not the original owners as the land belongs to the Gaon Sabha is concerned, counsel has drawn the attention of the Court to para 12 of the judgment passed by the ADJ in the reference to show that it has been held based on the Khasra Girdawaries Ex.AW1/1 to Ex.AW1/6 the petitioners were in cultivatory possession of the land and have acquired Bhumidari rights.

6. Mr.Jain, counsel for the LAC while relying on the counter affidavit placed on record, submits that as per their records, which are prior to the year 2007, Gaon Sabha was shown as the owner. However, he does not dispute that physical possession of the land has not been taken pertaining to 11 bighas and 11 biswas being subject matter of this writ petition.

7. We are of the view the case of the petitioners would be covered by the 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. Paras 14 to 20 read as under:

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.

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.”