Full Judgment Text
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Judgment: 16 November, 2017
+ W.P.(C) 3158/2015 & C.M.5624/2015
DHANNU ..... Petitioner
Through: Mr.R.K.Saini and Mr.Anshuman
Sood, Advocates.
versus
LT. GOVERNOR, GOVT OF NCT & ORS. ..... Respondents
Through: Mr.Siddharth Panda, Adv. for
LAC/L&B Deptt.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V.KAMESWAR RAO
G.S.SISTANI, J. (ORAL)
1. This is a petition filed under Article 226 of the Constitution of India
by the petitioner. The petitioner claims to be in possession of land
measuring 9 Biswas (wrongly typed as 9 Bighas in prayer clause as
admitted by Mr.R.K.Saini, counsel appearing on behalf of the
petitioner), a built up structure comprised in Khasra no.335/80,
situated in the revenue estate of Village Chilla Saroda, Bangar,
Shahdara, Delhi (hereinafter referred to as the ‘subject land’).
2. It is the case of the petitioner that a notification under Section 4 of the
Land Acquisition Act, 1894 was issued on 13.11.1959. A notification
under Section 6 of the Land Acquisition Act, 1894 was issued in the
year 1966. Thereafter, an Award was made in the year 1977.
3. Mr.Saini contends that grandfather of the petitioner had constructed a
house over the subject land in the year 1965 and since then the
petitioner has been in actual physical possession over the land in
W.P.(C) 3158/2015 Page 1 of 7
question. While relying on the counter affidavit filed by the LAC
Mr.Saini contends that the possession of the subject land could not be
taken on account of the area being built up. Attention of this court is
drawn to para 7 of the counter affidavit filed by the LAC, which reads
as under:
“7. That in the present case, the possession of 17 bigha
and 17 biswa out of total 18-06 of Khasra no.335/80 was
taken over and handed over to the beneficiary department
on 11.05.1977, however, remaining 0-9 biswa of land could
not be taken over due to built up. The compensation with
respect to the above said land was sent to the court of ADJ
under section 30-31 of Land Acquisition Act, 1894, on
17.05.1978. Further, it is pertinent to mention here that the
Petitioner have no right or title over the land in question in
as much as the land in question belongs to “Gaon Sabha”.
The petitioner has not placed on record any document
evidencing that the land was ever allotted/given to him by
Gaon Sabha.”
4. Mr.Saini also contends that he does not dispute that the land belongs
to Gaon Sabha and he submits that question of ownership may be kept
open to be decided in appropriate proceedings. He submits 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. Mr.Siddharth Panda, learned counsel for the LAC has opposed this
petition on the ground that the petitioner is not a rightful owner. He is
an illegal occupant over the land in question and thus no relief should
W.P.(C) 3158/2015 Page 2 of 7
be granted to him. As far as possession is concerned, Mr.Panda relies
on para 7 of the counter affidavit wherein categorical assertion has
been made that the possession over the subject land measuring 9
biswas could not be taken out to the area being built up.
6. We have heard learned counsel for the parties.
7. Having regard to the fact that admittedly possession of the subject land
could not be taken, the case of the petitioner would be covered with
the decision rendered by the Apex court in the case of Pune
Municipal Corporation & Anr. V. Harak Chand Misiri Mal Solanki
& Ors., reported at (2014) 3 SCC 183 , more particularly, paragraphs
14 to 20 of the judgment 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
W.P.(C) 3158/2015 Page 3 of 7
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
W.P.(C) 3158/2015 Page 4 of 7
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.
W.P.(C) 3158/2015 Page 5 of 7
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.”
8. As far as the objection raised by Mr. Panda that no relief can be
granted to the petitioner as the land belongs to the Gaon Sabha is
concerned, an identical issue had arisen before another 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.”
9. The Division Bench had held that by passing the order declaring the
proceedings of the subject land to have lapsed, the Court was not
deciding the question of title which was kept open to be decided in the
appropriate court of jurisdiction. We see no reason to take a different
view while we declare the acquisition proceedings having lapsed. The
question of title is kept open to be decided in appropriate court of
jurisdiction.
10. The writ petition stands disposed.
W.P.(C) 3158/2015 Page 6 of 7
C.M.5624/2015 (stay)
11. The interim order dated 27.03.2015 stands confirmed.
12. The application stands disposed of.
G.S.SISTANI, J.
V.KAMESWAR RAO, J.
NOVEMBER 16, 2017
rb
W.P.(C) 3158/2015 Page 7 of 7