Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11.04.2017
+ W.P.(C) 6235/2014, C.M. APPL.15083/2014
OM PRAKASH AND ORS. ..... Petitioners
versus
UNION OF INDIA AND ORS. ..... Respondents
+ W.P.(C) 6295/2014
BAL KISHAN AND ORS. ..... Petitioners
versus
UNION OF INDIA AND ORS. ..... Respondents
+ W.P.(C) 470/2015, C.M. APPL.788/2015
YOGENDER KUMAR AND ORS. ..... Petitioners
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Sh. Ravi Prakash Gupta, Advocate, for
petitioners, in Item Nos.1, 2 and 3.
Sh. Siddharth Panda, Advocate, for L&B in Item
Nos. 1, 2 and 3.
Sh. Abhishek Pundir, Advocate, for DSIIDC, in
Item Nos.1, 2 & 3.
Sh. Dhanesh Relan, Standing Counsel with Ms.
Isha Garg, Sh. Harshit Manaktala and Sh. Amit
Mehta, Advocates, for DDA, in Item No.1
Ms. Monika Arora, CGSC with Ms. Simranjeet and
Sh. Kushal Kumar, Advocates, for UOI, in Item
Nos.1 & 2.
Sh. Dev. P. Bhardwaj, CGSC with Sh. Satya
Prakash Singh, Advocate, for UOI, in Item No.3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE YOGESH KHANNA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 1 of 7
%
1. The petitioners in all these proceedings under Article 226 of the
Constitution of India, claim a declaration that the acquisition notifications
issued by the respondent authorities/Land Acquisition Department (hereafter
“Govt. of NCT of Delhi”) lapsed, by reason of Section 24(2) of the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”).
2. In W.P.(C) 470/2014, the petitioners’ lands were acquired through a
th
notification dated 27 January, 2003, followed by a declaration issued under
th
Section 6 of the Land Acquisition Act, 1894 [hereafter “the old Act”], on 6
July, 2004. In W.P.(C) 6295/2014, notifications under Sections 4/17 of the
st th
old Act were issued on 1 June, 1998; the possession was taken over on 6
th
July, 1998 and Award was made on 24 October, 1999. Likewise, in
W.P.(C) 6235/2014, the notifications under Section 6/17 were published on
th th
11 September, 2000 and possession was taken on 5 October, 2000. All
these lands are within the revenue boundaries of Village Sanoth. The
petitioners contend that the respondents have not taken actual possession of
the acquired lands and that consequently, the mandate of Section 24(2) of the
2013 Act applies, to result in lapse of the acquisition notification.
3. The respondents, particularly the Land Acquisition Collector of the
appropriate government, urge that these proceedings are an abuse of process
of court. They point out that the petitioners do not dispute that compensation
was tendered and accepted, after its due determination. The respondents’
affidavits also stated that since lands were acquired for planned development
of various parts of the city of Delhi, for different projects, possession was in
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 2 of 7
fact taken over. They rely on Panchnamas; copies of which have been
annexed with the petitions. It is urged that consequently Section 24(2) is
inapplicable.
4. Sh. R.P. Gupta learned counsel, argues in these petitions that the
taking over “possession” of land means the taking over of actual physical
possession and not constructive possession. He highlights that the
panchnama relied on facially shows that a vast tract of 2687 Bighas and 11
biswa of land is supposed to have been taken over on a single day- a physical
impossibility (in Village Sanoth, in W.P.(C) 470/2014). Furthermore, says
counsel, the panchnama records that possession of over 402-18 bighas is
th
supposed to have been taken over on 6 September, 2004 - again an
impossibility. Similar arguments were addressed in the other two petitions;
the counsel stated that likewise vast tracts were said to have been taken over;
in fact, the respondents only took over “paper possession”.
5. Learned counsel relies on the ruling in Pune Municipal Corporation v.
H.M. Solanki 2014 (3) SCC 183, which had interpreted Section 24(2) and the
later judgment in Union of India v Shiv Raj & Ors (2014) 6 SCC 564 to say
that since possession was not taken, and the five-year period prescribed has
lapsed, the acquisition in fact lapsed. It is argued that consistently, the
Supreme Court has interpreted the expression “possession” to mean actual
physical possession and not paper possession, in Balwant Narayan Bhagde v.
M.D. Bhagwat (1976) 1 SCC 700 ; Balmokand Khatri Educational and
Industrial Trust v State of Punjab (1996) 4 SCC 212 and P.K. Kalburqui v
State of Karnataka, (2005) 12 SCC 489. Balwant Narayan Bhagde (supra)
was especially relied upon to say that where there is standing crop, proof of
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 3 of 7
actual physical possession is to be shown and that in the present case, there is
no such material forthcoming.
6. Counsel for the respondents emphasize that in each of these cases,
actual physical possession was taken over from the land owners long ago- in
fact, soon after the notifications were published, because the lands were
needed. In fact, the State invoked the urgency powers under Section 17 and
besides taking over possession, compensation was determined in each case
and tendered to the land owners, who do not deny receiving it in every case.
Furthermore, it is submitted that the agency which asked for the land was
handed over with it, after possession was taken from the land owners. The
respondents’ counsel relied on the Supreme Court decision in Delhi
Development Authority v Sukhbir Singh, AIR 2016 SC 4275.
7. Pune Municipal Corporation (supra) is no doubt an authority for the
proposition that under Section 24(2) land acquisition proceedings initiated
under the Land Acquisition Act, 1894, by fiction, are deemed lapsed if an
award has been made five years or more prior to the commencement of the
2013 Act and possession of the land is not taken or compensation has not
been paid. It was held that the legal fiction under Section 24(2) comes into
operation as soon as conditions stated therein are satisfied. The applicability
of Section 6 of the General Clauses Act, it was held, was subject to
Section 24(2).
8. The decision in Delhi Development Authority v Sukhbir Singh, AIR
2016 SC 4275 held as follows:
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 4 of 7
“It remains to deal with one submission of Shri A.K. Sanghi.
According to Shri Sanghi, physical possession has not been
taken of the land in dispute. We are afraid this may not be
correct. The Panchnama dated 27th January, 2000 specifically
records that possession of the land above stated was recovered
and handed over to the representatives of the Office of Land
and Buildings. The Panchnama is also signed by all the
necessary officers. This piece of land admittedly being open
land is governed by the ratio of Raghbir Singh Sherawat v State
of Haryana & Ors (2012) 1 SCC 792 in which it has been held:
“In Banda Development Authority v Moti Lal
Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] ,
the Court referred to the judgments in Balwant
Narayan Bhagde v M.D. Bhagwat [(1976) 1 SCC 700],
Balmokand Khatri Educational and Industrial Trust v
State of Punjab [(1996) 4 SCC 212] P.K. Kalburqui v
State of Karnataka, [(2005) 12 SCC 489], NTPC Ltd v
Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ)
375],Sita Ram Bhandar Society v Govt (NCT of
Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268]
and culled out the following propositions: (Banda
Development Authority case [(2011) 5 SCC 394 : (2011)
2 SCC (Civ) 747] , SCC p. 411, para 37) “(i) No hard-
and-fast rule can be laid down as to what act would
constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State
authority concerned to go to the spot and prepare a panchnama
will ordinarily be treated as sufficient to constitute taking of
possession.
(iii) If crop is standing on the acquired land or
building/structure exists, mere going on the spot by the
authority concerned will, by itself, be not sufficient for taking
possession. Ordinarily, in such cases, the authority concerned
will have to give notice to the occupier of the building/structure
or the person who has cultivated the land and take possession
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 5 of 7
in the presence of independent witnesses and get their
signatures on the panchnama. Of course, refusal of the owner
of the land or building/structure may not lead to an inference
that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be
possible for the acquiring/designated authority to take physical
possession of each and every parcel of the land and it will be
sufficient that symbolic possession is taken by preparing
appropriate document in the presence of independent witnesses
and getting their signatures on such document.
(v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80% of the total
compensation is deposited in terms of Section 17(3-A) and
substantial portion of the acquired land has been utilised in
furtherance of the particular public purpose, then the court may
reasonably presume that possession of the acquired land has
been taken.” [para 27]
29. As the present case will fall within sub-paragraph (ii),
physical possession of the land can be said to have been taken
on the facts of the present case.”
9. In the present case the material on record suggests that the possession
was taken over long ago, soon after compensation was given. The
Panchnamas are undisputed. The petitioners’ argument with respect to actual
physical possession does not persuade this court to hold in their favour. As
Sukhbir Singh (supra) explained, if a document is forthright about the
question of possession, there is no scope for further debate on that aspect. In
the various possession notes in each of the three cases, possession is shown
to have been taken.
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 6 of 7
10. In view of the foregoing discussion, the writ petitions cannot succeed.
Along with pending application they are dismissed, but without any orders as
to costs.
S. RAVINDRA BHAT
(JUDGE)
YOGESH KHANNA
(JUDGE)
APRIL 11, 2017
W.P.(C) 6235/14, 6295/2014 & 470/2015 Page 7 of 7