Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Judgement: 5 February, 2018
+ W.P.(C) 11516/2016
DHRUV BHASIN & ORS. .....Petitioners
Through: Mr. Gaurav Puri, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Yeeshu Jain, Standing Counsel with
Ms. Jyoti Tyagi Adv. for L&B/LAC.
Ms. Anjuna Gosain Adv. for R-2
Mr. R.K. Dhawan, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (Oral)
1. This is a petition under Article 226 of Constitution of India filed by
the petitioner seeking a declaration that the acquisition proceedings
with respect to land bearing Khasra No. 193 min, measuring 13
Bighas and 14 Biswas, situated in the revenue estate of village
Bijwasan, Tehsil Mehrauli, New Delhi, (hereinafter referred as the
'subject land') stand 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 no compensation has been paid to the petitioners.
2. In this case, a notification under Section 4, Section 6 and Section
17(1) of the Land Acquisition Act, 1894 (hereinafter referred to as
'Act') was issued on 18.08.1985. Thereafter, an award bearing
no.25/85-86 was passed on 29.01.1986. It is the case of the
W.P.(C) 11516/2016 Page 1 of 9
petitioners that the compensation with respect to subject land has
not been tendered even though the possession of the land has been
taken.
3. The counsel for the petitioners submits that since the compensation
has not been tendered, the petitioners would be entitled to a
declaration under Section 24 (2) of the Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (hereinafter referred to as 'the New Act'). Learned
counsel for the petitioners has drawn the attention of the Court to
the Counter Affidavit filed by the LAC wherein it has been
categorically stated that as per Statement-A the compensation has
not been paid.
4. Learned counsel for the petitioners further submits that since
compensation has not been tendered to the petitioners, the case of
the petitioners would be fully covered by the decision rendered by
the Apex Court in Pune Municipal Corporation & Anr. v.
Harakchand Misirimal Solanki & ors ., reported at (2014) 3 SCC
183.
5. Mr. Yeeshu Jain, learned counsel for LAC contended that the land
was acquired for stationing of emergency duty of National Security
Guards and the possession was taken on 06.11.1985. Para.4 & 5 of
the Counter affidavit filed by the LAC, reads as under :-
"4. That the present writ petition is liable to be
dismissed as the petitioners were never aggrieved with
the acquisition proceeding which were issued vide
Notification dated 18.8.1985 under section 4, 6 and
17(1) of Land Acquisition Act, 1894 as the public
W.P.(C) 11516/2016 Page 2 of 9
purpose was for stationing of emergency duty of
National Security guards and possession was taken
immediately on 6.11.1985 on the spot and handed
over to concerned department. The Award No. 25/85-
86 dated 29.1.1986 also came to be passed in
accordance with law.
5. That the petitioners are claiming relief of (13
Bigha-14 Biswa) and have admitted that Government
has taken possession of subject land falling in khasra
number 193. There is no averment by the petitioners
that after the possession of subject land was taken
from them, they ever approached the office of
answering respondent to claim compensation or were
they ever aggrieved, thus apparently and manifestly,
the petitioners have given up their respective claims
seeking compensation and have approached the
Hon'ble Court in the year 2016 only after enactment
of new Act, 2013. The records i.e. Statement-A,
however reflects that the compensation is not shown
as paid.."
6. Ms. Anjana Gosain, learned counsel for Respondent No.2, submits
that after taking possession of the subject land, a permanent
structure has been erected for training purpose and for stationing
emergency duty elements for the National Security Guard. The
relevant portion of the Counter Affidavit filed by Respondent No.2
reads as under:
"That on the terms of the aforementioned notification
and acquisition, the impugned Award No. 25/85-86
dated 18.09.1985 was passed by Land Acquisition
Collector for determination of the compensation for
the land measuring 20 Bighas 01 Biswas 01 Biswas in
village Bijwasan. The amount of 1,97,271 rupees was
determined as the compensation amount to be paid by
Respondent No.4 to the land owners of the acquired
land. Bal Ram Bhasin and Sat Pal Bansal (herein
W.P.(C) 11516/2016 Page 3 of 9
after referred as 'Petitioners') were named as one of
the claimants in the impugned order. However, it is
mentioned in the impugned award that no
documentary proof was given of the same. The
Respondent No.2 is not aware if, any or no,
proceedings for compensation were initiated between
respondent no.4 and the petitioner. The copy of the
Award No.25/85-86 dated 18.09.1985 passed by the
Land Acquisition Collector is annexed as
ANNEXURE R-4 . "
7. Counsel for Respondent no.5 submits that by virtue of being a legal
heir of Late Sh. Satya Pal Bansal (recorded co-owner) Respondent
no.5 is equally entitled to claim all the reliefs in the present petition
alongwith the petitioners pertaining to the subject land. Counter
Affidavit has been filed on behalf of Respondent no.5, relevant
portion of which reads as under:-
"3. That I say that the deponent, who has been
impleaded as Respondent No.5 being one of the legal
heirs of Late Sh. Satya Pal Bansal is entitled to all the
reliefs a claimed in the Writ Petition alongwith the
Petitioners pertaining to the land measuring 13
bighas 14 biswas of khasra no.193 min in Village
Bijwasan, New Delhi and no relief can be claimed
against the Respondent no.5 and accordingly, the
Respondent No.5 be transposed as one of the
Petitioners, as she is entitled to claim all the reliefs
being one of the legal heirs of Late Sh. Satya Pal
Bansal."
8. We have heard learned counsel for the parties.
9. Taking into consideration the submissions made and the
categorical assertion made in the counter affidavit filed by LAC
that the possession of the subject land has been taken, however the
compensation has not been paid, we are of the view that, the case
W.P.(C) 11516/2016 Page 4 of 9
of the petitioners is fully covered by the decision rendered by the
Apex Court in the case of Pune Municipal Corporation &
Anr. (supra). Paras 14 to 20 of aforesaid decision 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 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, 33 and 34. As a matter of
fact, Section 33 gives power to the court, on an
W.P.(C) 11516/2016 Page 5 of 9
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
subsection (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
W.P.(C) 11516/2016 Page 6 of 9
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 W.P. (C)
No.866/2017 Page 5 of 6 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
W.P.(C) 11516/2016 Page 7 of 9
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.”
10. Having regard to the submissions made and the stand taken by the
LAC in the counter affidavit, we are of the considered view that the
necessary ingredients for the application of Section 24(2) of the
2013 Act, as has been interpreted by the Supreme Court of India
and this Court stand satisfied.
9. Since the award having been announced more than five years prior
to the commencement of the 2013 Act and, having regard to the
stand taken by the LAC that the compensation has not been
tendered to the petitioners, the petitioners are entitled to a
declaration that the acquisition proceedings initiated under the
Land Acquisition Act, 1894 with regard to the subject land are
deemed to have lapsed.
10. We are of the view that Respondent No.5 being the legal heir of
Late Sh. Satya Pal Bansal, is equally entitled to claim all the reliefs
as claimed by the petitioners.
11. Therefore, as the possession of the subject land has been taken over
and the land has been put to use, the petitioners and the Respondent
no. 5, would only be entitled to compensation as per the New Act.
Compensation be released within one year from today. It is
ordered accordingly.
W.P.(C) 11516/2016 Page 8 of 9
12. The writ petition stands disposed of.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
FEBRUARY 5, 2018
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