PHOOLWATI GUPTA AND ORS v. UOI AND ORS

Delhi High Court · 07 Nov 2017 · 2017:DHC:6726-DB

HON'BLE MR. JUSTICE G.S.SISTANI; HON'BLE MR. JUSTICE V. KAMESWAR RAO G.S.SISTANI, J. (ORAL)

2017:DHC:6726-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 to landowners nor deposited in court, and deposit in government treasury does not suffice.

Full Text

W.P. (C) No.11363/2016 HIGH COURT OF DELHI
Date of

JUDGMENT

: 07th November, 2017

W.P.(C) 11363/2016
PHOOLWATI GUPTA AND ORS ..... Petitioners
Through Mr.Brajesh Kumar Singh with Mr. Amit Pratap Shaunak, Advs.

versus

UOI AND ORS ..... Respondents
Through Mr.Yeeshu Jain, Standing Counsel with Ms.Jyoti Tyagi, Adv. for
L&B/LAC.
Mr.Dhanesh Relan, Standing Counsel with Mr.Arush Chikersal, Adv. for
DDA.
Mr.Brajesh Kumar, Adv. for UOI.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V. KAMESWAR RAO G.S.SISTANI, J. (ORAL)

1. Counter affidavit filed by LAC is taken on record.

2. With the consent of counsel for the parties, present writ petition is set down for final hearing and disposal.

3. This is a petition filed under Article 226 of the Constitution of India filed by the petitioners seeking a direction to declare the acquisition proceedings with respect to the land of the petitioners measuring 7 bighas 5 biswas comprised in Khasra nos.1228, 1229, 1230, 1232, 1233 and 1242, situated in the revenue estate of village Kirari Suleman Nagar, Delhi, (hereinafter referred to as „subject land‟) to 2017:DHC:6726-DB have lapsed in view Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re- Settlement Act, 2013 (hereinafter referred to as „New Act‟).

4. Learned counsel for the petitioner submits that in this case, two notifications under Sections 4 and 6 of Land Acquisition Act, 1894 were issued on 21.03.2003 and 19.03.2004 respectively and award bearing no.29/DC(N-W)/2005-06 was made on 17.03.2006. It is the case of the petitioner that neither possession has been taken over nor compensation has been paid. Attention of this Court is drawn to para 5 of the counter affidavit filed by LAC, which reads as under:-

“5. That it is submitted that the lands of village Kirari Suleman Nagar were notified vide Notification under section 4 of the Land Acquisition Act, 1894 dated 21.3.2003 which was followed by the Notification under section 6 of the Act dated 19.3.2004. The Award was also passed vide Award No.29/2005-06 dated 17.3.2006 however neither the physical possession of the subject land could be taken or the compensation was paid.”

5. Counsel for the petitioner submits that the case of the petitioner is fully covered by the decision rendered in the case of Pune Municipal Corporation & Anr. v. Harakchand Misirimal Solanki & ors., reported at 2014 3 SCC 183. Paras 14 to 20 of Pune Municipal Corporation (supra) are reproduced 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, 33and 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 sub-section (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.

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.

6. In view of the averments made in the counter affidavit that neither possession of the subject land has been taken over nor compensation has been paid to the petitioner, we are of the considered view that the necessary ingredients for the application of Section 24(2) of the New Act as has been interpreted by the Supreme Court of India and this Court in the following cases stand satisfied:

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(i) Pune Municipal Corporation & Anr. v.

(ii) Union of India and Ors v. Shiv Raj and Ors., reported at (2014) 6 SCC 564;

(iii) Sree Balaji Nagar Residential Association v.

(iv) Surender Singh v. Union of India & Others,

(v) Girish Chhabra v. Lt. Governor of Delhi and

7. In view of the discussion above, the petitioners are entitled to a declaration that the said acquisition proceedings initiated under the Land Acquisition Act, 1894 with regard to the subject land are deemed to have lapsed. It is so declared.

8. The writ petition is allowed. There shall be no order as to costs. CM No.44604/2016

9. The application stands disposed of in view of order passed in writ petition. G.S.SISTANI, J

V. KAMESWAR RAO, J

NOVEMBER 07, 2017

PHOOLWATI GUPTA AND ORS v. UOI AND ORS

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