Full Judgment Text
D.No.23608/2021
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.2749/2023
(arising out of S.L.P.(Civil) No.7510/2023
(arising out of S.L.P.(Civil) D.No.23608/2021 )
LAND AND BUIILDING DEPARTMENT
THROUGH SECRETARY & ANR. …APPELLANT(S)
VS.
ATTRO DEVI & ORS. …RESPONDENT(S)
J U D G M E N T
Rajesh Bindal, J.
1. Delay condoned.
2. Leave granted.
3. The appellants have challenged the order dated
20.12.2017 passed by the High Court of Delhi. Vide aforesaid
order, writ petition filed by the respondents was allowed holding
Signature Not Verified
that in view of Section 24(2) of the Right to Fair Compensation
Digitally signed by
Anita Malhotra
Date: 2023.04.11
17:43:58 IST
Reason:
and Transparency in Land Acquisition, Rehabilitation and
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Resettlement Act, 2013 (for short “ the 2013 Act ”), the acquisition
in respect to the land in dispute, has lapsed.
4. From the facts of the case as are available on record, it
is evident that vide notification dated 23.06.1989 issued under
Section 4 of the Land Acquisition Act, 1894 large chunk of the
land including the land of petitioner comprised in Khasra No.1
Etc/57/1 and Khasra No.1 Etc/58/1, situated in revenue estate
of village Ghonda, Chauhan Khadar, New Delhi was sought to be
acquired for planned development of Delhi. It was followed by the
notification issued under Section 6 dated 20.06.1990. The Award
was announced on 19.06.1992.
5. A writ petition was filed in the High Court invoking
Section 24(2) of the 2013 Act claiming that the acquisition in
question has lapsed as neither possession has been taken nor the
compensation therefor has been paid. The appellant’s stand before
the High Court was that the possession of the land was taken on
06.12.2012 and handed over to the DDA on the spot. The
compensation could not be paid to the recorded land owners as
they never came forward to claim the same.
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6. The High Court relying upon the judgment of this
Court in Pune Municipal Corporation & Anr. v. Misirimal
(2014) 3 SCC 183 held that since the
Solanki & Ors.
compensation was not paid to the landowners, i.e., the
respondents herein, the acquisition in question has lapsed.
7. The arguments raised by learned counsel appearing for
the appellants are that in view of the Constitution Bench
judgment of this Court in Indore Development Authority v.
(2020) 8 SCC 129 whereby earlier
Manoharlal and Others
judgment of this Court in Pune Municipal Corporation &
case (supra) was overruled, the order passed by the High
Anr.’s
Court is liable to be set aside. It was opined by the Constitution
Bench that compliance of either of the two conditions i.e. taking
over of possession of the land or payment of compensation, is
good enough to sustain the acquisition. From the undisputed
facts available on record it is evident that in the present case, the
possession of land in dispute was taken after the acquisition was
complete.
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8. Additionally, an important fact brought to our
attention is that the subject land is required by NHAI for
construction of the DelhiSaharanpurDehradun Highway
starting from Akshardham Junction to Delhi/UP Border, in the
State of Delhi in PhaseI of Bharatmala Pariyojana. Even the
contractors have been appointed to execute the project, which
may be delayed due to pendency of the present appeal. The
subject land is therefore a part of the project which is of national
importance.
9. On the other hand, the arguments raised by learned
counsel for the respondents are that the writ petition having been
decided on the basis of law as existing on the date of decision by
the High Court cannot be set aside on the basis of the
subsequent judgment of this Court. The High Court had held
that compensation having not been paid, as per the
interpretation of Section 24(2) of the 2013 Act by this Court in
Pune Municipal Corporation’s case (supra), the acquisition
proceedings lapsed. It is a matter of fact which has been noticed
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in the order passed by the High Court that the possession of the
land had already been taken by the authority concerned.
10. Heard learned counsel appearing for the parties and
perused the records.
11. The Constitution Bench of this Court in
Indore
Development Authority's case (supra) had opined that
satisfaction of either of the conditions namely either taking
possession of the acquired land or payment of compensation to
the landowners would be sufficient to save the acquisition from
being lapsed in terms of Section 24(2) of the 2013 Act. Various
questions posed before the Constitution Bench of this Court were
also answered. Relevant paraNos. 362 and 366 are extracted
below:
“362. Resultantly, the decision rendered in
Pune Municipal Corporation & Anr. (supra) is
hereby overruled and all other decisions in which
Pune Municipal Corporation (supra) has been
followed, are also overruled. …
...
366. In view of the aforesaid discussion, we
answer the questions as under:
366.1. Under the provisions of Section 24(1)(a)
in case the award is not made as on 112014, the
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date of commencement of the 2013 Act, there is no
lapse of proceedings. Compensation has to be
determined under the provisions of the 2013 Act.
366.2. In case the award has been passed
within the window period of five years excluding
the period covered by an interim order of the court,
then proceedings shall continue as provided under
Section 24(1)(b) of the 2013 Act under the 1894 Act
as if it has not been repealed.
366.3. The word “or” used in Section 24(2)
between possession and compensation has to be
read as “nor” or as “and”. The deemed lapse of
land acquisition proceedings under Section 24(2) of
the 2013 Act takes place where due to inaction of
authorities for five years or more prior to
commencement of the said Act, the possession of
land has not been taken nor compensation has
been paid. In other words, in case possession has
been taken, compensation has not been paid then
there is no lapse. Similarly, if compensation has
been paid, possession has not been taken then
there is no lapse.
(emphasis supplied)
366.4. The expression “paid” in the main part of
Section 24(2) of the 2013 Act does not include a
deposit of compensation in court. The consequence
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of non deposit is provided in the proviso to Section
24(2) in case it has not been deposited with respect
to majority of landholdings then all beneficiaries
(landowners) as on the date of notification for land
acquisition under Section 4 of the 1894 Act shall be
entitled to compensation in accordance with the
provisions of the 2013 Act. In case the obligation
under Section 31 of the Land Acquisition Act, 1894
has not been fulfilled, interest under Section 34 of
the said Act can be granted. Nondeposit of
compensation (in court) does not result in the lapse
of land acquisition proceedings. In case of non
deposit with respect to the majority of holdings for
five years or more, compensation under the 2013
Act has to be paid to the “landowners” as on the
date of notification for land acquisition under
Section 4 of the 1894 Act.
366.5. In case a person has been tendered the
compensation as provided under Section 31(1) of
the 1894 Act, it is not open to him to claim that
acquisition has lapsed under Section 24(2) due to
nonpayment or non deposit of compensation in
court. The obligation to pay is complete by tendering
the amount under Section 31(1). The landowners
who had refused to accept compensation or who
sought reference for higher compensation, cannot
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claim that the acquisition proceedings had lapsed
under Section 24(2) of the 2013 Act.
366.6. The proviso to Section 24(2) of the 2013
Act is to be treated as part of Section 24(2), not part
of Section 24(1)(b).
366.7. The mode of taking possession under the
1894 Act and as contemplated under Section 24(2)
is by drawing of inquest report/memorandum. Once
award has been passed on taking possession
under Section 16 of the 1894 Act, the land vests in
State there is no divesting provided under Section
24(2) of the 2013 Act, as once possession has been
taken there is no lapse under Section 24(2).
366.8. The provisions of Section 24(2) providing
for a deemed lapse of proceedings are applicable in
case authorities have failed due to their inaction to
take possession and pay compensation for five
years or more before the 2013 Act came into force,
in a proceeding for land acquisition pending with
the authority concerned as on 112014. The period
of subsistence of interim orders passed by court
has to be excluded in the computation of five years.
366.9. Section 24(2) of the 2013 Act does not
give rise to new cause of action to question the
legality of concluded proceedings of land
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acquisition. Section 24 applies to a proceeding
pending on the date of enforcement of the 2013 Act
i.e. 112014. It does not revive stale and time
barred claims and does not reopen concluded
proceedings nor allow landowners to question the
legality of mode of taking possession to reopen
proceedings or mode of deposit of compensation in
the treasury instead of court to invalidate
acquisition.”
12. The issue as to what is meant by "possession of the
land by the State after its acquisition" has also been considered
by Constitution Bench of Hon'ble Supreme Court in Indore
case (supra). It is opined therein that
Development Authority’s
after the acquisition of land and passing of award, the land vests
in the State free from all encumbrances. The vesting of land with
the State is with possession. Any person retaining the possession
thereafter has to be treated trespasser. When large chunk of land
is acquired, the State is not supposed to put some person or
police force to retain the possession and start cultivating on the
land till it is utilized. The Government is also not supposed to
start residing or physically occupying the same once process of
the acquisition is complete. If after the process of acquisition is
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complete and land vest in the State free from all encumbrances
with possession, any person retaining the land or any reentry
made by any person is nothing else but trespass on the State
land. Relevant paragraphs 244, 245 and 256 are extracted below:
. Section 16 of the Act of 1894 provided
"244
that possession of land may be taken by the State
Government after passing of an award and
thereupon land vest free from all encumbrances in
the State Government. Similar are the provisions
made in the case of urgency in Section 17(1). The
word "possession" has been used in the Act of
1894, whereas in Section 24(2) of Act of 2013, the
expression "physical possession" is used. It is
submitted that drawing of panchnama for taking
over the possession is not enough when the actual
physical possession remained with the landowner
and Section 24(2) requires actual physical
possession to be taken, not the possession in any
other form. When the State has acquired the land
and award has been passed, land vests in the
State Government free from all encumbrances. The
act of vesting of the land in the State is with
possession, any person retaining the possession,
thereafter, has to be treated as trespasser and has
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no right to possess the land which vests in the
State free from all encumbrances.
245 . The question which arises whether there
is any difference between taking possession under
the Act of 1894 and the expression "physical
possession" used in Section 24(2). As a matter of
fact, what was contemplated under the Act of
1894, by taking the possession meant only
physical possession of the land. Taking over the
possession under the Act of 2013 always
amounted to taking over physical possession of the
land. When the State Government acquires land
and drawns up a memorandum of taking
possession, that amounts to taking the physical
possession of the land. On the large chunk of
property or otherwise which is acquired, the
Government is not supposed to put some other
person or the police force in possession to retain it
and start cultivating it till the land is used by it for
the purpose for which it has been acquired. The
Government is not supposed to start residing or to
physically occupy it once possession has been
taken by drawing the inquest proceedings for
obtaining possession thereof. Thereafter, if any
further retaining of land or any reentry is made on
the land or someone starts cultivation on the open
land or starts residing in the outhouse, etc., is
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deemed to be the trespasser on land which in
possession of the State. The possession of
trespasser always inures for the benefit of the real
owner that is the State Government in the case.
xxxx
. Thus, it is apparent that vesting is with
256
possession and the statute has provided under
Sections 16 and 17 of the Act of 1894 that once
possession is taken, absolute vesting occurred. It is
an indefeasible right and vesting is with
possession thereafter. The vesting specified under
Section 16, takes place after various steps, such
as, notification under Section 4, declaration under
Section 6, notice under Section 9, award under
Section 11 and then possession. The statutory
provision of vesting of property absolutely free from
all encumbrances has to be accorded full effect.
Not only the possession vests in the State but all
other encumbrances are also removed forthwith.
The title of the landholder ceases and the state
becomes the absolute owner and in possession of
the property. Thereafter there is no control of the
landowner over the property. He cannot have any
animus to take the property and to control it. Even
if he has retained the possession or otherwise
trespassed upon it after possession has been
taken by the State, he is a trespasser and such
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possession of trespasser enures for his benefit and
on behalf of the owner
."
(emphasis supplied)
13. It is also a fact to be noticed and taken care of that
large chunk of land is acquired for planned development to take
care of immediate need and also keep buffer for future
requirements. Such portion of land may be lying vacant also. As
has been observed in Indore Development Authority’s case
(supra) by this Court, the State agencies are not supposed to put
police force to protect possession of the land taken after process
of acquisition is complete. As far as the case in hand is
concerned, the land even if was lying vacant, is required now for
a project of national importance for construction of the Delhi
SaharanpurDehradun Highway starting from Akshardham
Junction to Delhi/UP Border, in the State of Delhi in PhaseI of
Bharatmala Pariyojana.
14. It is the undisputed fact on the record, as has been
noticed in the impugned order passed by the High Court, the
possession of the land was taken over by the Land Acquisition
Collector and handed over to Delhi Development Authority.
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Report of possession proceedings dated 06.12.2012 has also
been placed on record. Hence, one of the conditions being
satisfied, we need not examine any other argument.
15. Keeping in view the aforesaid fact and the law laid
down by the Constitution Bench of this Court in Indore
case (supra), in our opinion the order
Development Authority’s
passed by the High Court cannot be legally sustained and the
same is accordingly set aside. However, the respondents shall
be entitled to receive compensation as per their entitlement. The
Land Acquisition Officer should also take steps to pay the same
to the rightful owner.
16. The appeal is disposed of accordingly.
……………………J.
[Abhay S. Oka]
……….……………J.
[Rajesh Bindal]
New Delhi;
11.04.2023.
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