Mahipal Singh & Ors vs Union Of India & Ors

G.S.Sistani, J

Counter affidavit has not been filed despite time having been granted since 04.12.2015.

Mr.Jain, learned counsel for the LAC submits that counter affidavit is ready. Copy of the same has been supplied to counsel for the petitioners. The

counter affidavit is also handed over in Court, which is taken on record.

This is a petition under Article 226 of Constitution of India filed by the petitioners seeking a declaration that the acquisition proceedings with respect

to land being full share in Khasra no.471 (01-00), 508 (01-06), 506 min (01-03), total measuring 03 bighas 09 biswas and being 2/7 joint share in

Khasra no.507(01-06) of the petitioner, situated in the revenue estate of village Madanpur Khadar, Teshil Kalkaji, New Delhi (hereinafter referred to

as the “subject landâ€) stand lapsed in view of section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 (hereinafter referred to as “2013 Actâ€) as neither possession has been taken nor compensation has been paid to the

petitioners.

In this case, a notification under section 4 of Land Acquisition Act, 1894 (“the Act†in short) was issued on 23.06.1989 and a declaration under

sections 6 & 17 of the Act was made on 22.06.1990. Thereafter, an award bearing no.20/92-93 was passed on 19.06.1992.

Counsel for the petitioners has placed reliance upon a decision rendered by Apex Court in Pune Municipal Corporation & Anr. v. Harakchand

Misirimal Solanki & ors., reported at (2014) 3 SCC 183, in support of his plea that since the compensation has not been tendered, the case of the

petitioners would be covered by the aforesaid decision.

As per counter affidavit filed by LAC, possession of the subject land was taken on 03.12.2012 and was handed over to DDA. However,

compensation was sent to reference court on 28.10.2014 as there was an apportionment dispute. Para 4 of counter affidavit filed by LAC reads as

under :-

“4. That it is submitted that the lands of village Madan Pur Khadar were notified vide Notification under section 4 of the Land Acquisition Act

dated 23.6.1989 which was followed by Notification under section 6 of the said Act. That the then Land Acquisition Collector passed an Award

No.20/92-93 dated 19.6.92 and the possession of the land falling in khasra number 471 (01-00), 508(01-06) and 506 min (1-03) 2/7th share was taken

on 3.12.2012 after preparing possession proceeding on the spot and was handed over to the beneficiary department i.e. DDA immediately. The

compensation of the same was also sent to the Reference Court on 28.10.2014 as there was an apportionment dispute.â€​

Counsel for the petitioners submits that since the compensation was not tendered prior to coming into force of the 2013 Act, the acquisition

proceedings would deem to have lapsed.

We have heard learned counsel for the parties. Taking into consideration the submissions made, in our view, the case of the petitioners would be

fully covered by the decision rendered in Pune Municipal Corporation & Anr. (supra), wherein it has been held in paras 14 to 20 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.

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.

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 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.

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 “tenderedâ€. But at the same time, we do not think that by use of the word “paidâ€, 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.

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.

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 stateâ€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.

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.â€​

Since the compensation having been sent to reference court post coming into force of the 2013 Act on 28.10.2014 and the award having been

announced more than five years prior to the commencement of 2013 Act, the acquisition proceedings with respect to the subject land would deem to

have lapsed. Consequently, the writ petition is allowed. It is declared that the acquisition proceedings with respect to the subject land stand lapsed.

The writ petition is disposed of.

C.M. APPL 29283/2015

The application stands disposed of in view of the order passed in the writ petition.