Om Parkash Spall vs Union Of India & Ors

G. S. Sistani, J

Counter affidavit has been handed over in Court by the counsel for the LAC. Copy has been supplied to the counsel for the petitioner. Let the

counter affidavit be taken on record.

With the consent of the parties, the writ petition is set down for final hearing and disposal.

This is a petition under Article 226 of the Constitution of India filed by the petitioner. The petitioner seeks a declaration that the acquisition

proceedings initiated in respect of the land of petitioner comprised in Khasra no.731, measuring 1512 sq. yards, to the extent of half share, situated in

the revenue estate of village Tuglakabad, New Delhi (hereinafter referred to as “the subject landâ€) is deemed to have 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

the “2013 Actâ€​), as neither the possession has been taken nor the compensation has been paid.

The brief facts to be noticed for the disposal of this petition are that a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter

referred to as “the Actâ€) was issued on 10.11.1960. A Section 6 declaration was made on 04.01.1969 and an Award bearing no.66/86-87 was

rendered on 19.09.1986.

Learned counsel for the petitioner has placed reliance on para 6 of the counter affidavit filed by the LAC, wherein it has been stated that the

compensation has not been tendered to the petitioner, but as per Naksha Mutazameen, the same has been sent to RD. Counsel for the petitioner

submits that since the compensation has not been tendered to the petitioner, the case of the petitioner would be fully covered by the decision rendered

in the case of Pune Municipal Corporation & Anr. V. Harak Chand Misiri Mal Solanki & Ors., reported in (2014) 3 SCC 183.

We have heard the learned counsel for the parties. Paragraph 6 of the counter affidavit filed by the LAC reads as under:

“6. That the land in question i.e. Khasra No.731(1512 Sq.Yrds)(petitioner is claiming 50% of the land) situated at the revenue estate of village

Tughlakabad, New Delhi was notified under section 4 of Land Acquisition Act on 10.11.1960 followed by declaration under Section 6 of Land

Acquisition Act on 04.01.1969 for Planned Development of Delhi. In pursuance of said notification, notices under section 9 and 10 as provided under

the Act, were issued to the interested persons, inviting the claims from all the interested persons and claims were also filed by the interested persons.

The then Land Acquisition Collector passed Award No.66/86-87 dated 19.09.1986 after considering the claims of the claimants. Further, possession of

the above said land was not taken over due to stay in WP(C).No.1815/86 titled as Dhan Singh etc. v. UOI. However, as per Naksha Mutazameen,

the payment of the compensation with respect to the above land was sent in RD due to dispute. It is pertinent to mention here that the land in question

is also subject matter of another writ petition bearing WP(C).815/2016 titled as Som Nath Spall v. UOI & Ors.â€​

Reading of the counter affidavit filed by the LAC makes it clear that the compensation has been sent to RD and has not been tendered to the

petitioner. Hence, the case of the petitioner would be fully covered by the decision rendered by the Supreme Court of India in the case of Pune

Municipal Corporation & Anr.(supra). Paragraphs 14 to 20 of which, 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.

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€​

Taking into consideration 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, stand satisfied.

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 and the fact that the compensation has not been tendered to the petitioner, the petitioner is 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. It is ordered accordingly.

The petition stands disposed of.

CM.APPL 2390/2016(stay)

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