Raj Kumari Khandelwal & Anr vs Union Of India & Ors

G.S.Sistani, J

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

By way of this petition filed under Article 226 of Constitution of India, the petitioners seek a direction to declare the entire acquisition proceedings

with respect to 1/3rd share of the petitioners in the land comprising of 30 bighas 18 biswas situated in Khasra nos.1372/2 (1-4), 1376/3 (1-5), 1377 (5-

12), 1378 (0-10), 1379 (4-1), 1380 (4-16), 1381/1 (2-13), 1522 (4-16), 1523/1 (3-14) & 1732/1 (2-4), in the Revenue Estate of village Malikpur Kohi @

Rangpuri, New Delhi, acquired for public purposes namely ‘Planned Development of Delhi’ under the Land Acquisition Act,1894 to have

lapsed in view Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-Settlement Act, 2013

(hereinafter referred to as ‘New Act’). Learned counsel for the petitioners submits that in this case, two notifications under Sections 4 and 6 of

Land Acquisition Act, 1894 were issued on 23.01.1965 and 26.12.1968 and award was made on 30.03.1981. Counsel contends that father of the

petitioners Shri Jagnnath expired on 02.05.1969 and, thus, the land was inherited by the present petitioners.

Learned counsel for the petitioners has drawn the attention of this Court to the counter affidavit filed by respondent no.5 Land Acquisition Collector

wherein it has been admitted that the compensation has been sent to RD. Counsel for the petitioners submits that the amount was not tendered to the

petitioners, which is mandatory requirement and deposit of amount in RD would not absolve the respondents of their onus in making the payment. To

support his submission, learned counsel has placed reliance in the case reported as (2014) 3 SCC 183, Pune Municipal Corporation & Anr. V. Harak

Chand Misiri Mal Solanki & Ors.

Having heard learned counsel for the parties and taking into consideration the observations made by the Supreme Court in Paras 14 to 20 in Pune

Municipal Corporation (supra), which are reproduced as under, we are of the view that the present petition is liable to be allowed:

“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, 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.

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 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.

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.

That apart the aforesaid position of law has been reiterated in the cases of :

(i) Union of India and Ors. v. Shiv Raj and Ors. (2014) 6SCC 564;

(ii) Sree Balaji Nagar Residential Association v. State of Tamil Nadu and Ors. Civil Appeal No.8700/2013 decided on 10.09.2014;

(iii) Surender Singh v. Union of India & Others: WP(C) 2294/2014 decided on 12.09.2014 by this Court; and

(iv) Girish Chhabra v. Lt. Governor of Delhi and Ors. WP(C) 2759/2014 decided on 12.09.2014 by this Court.

In the case in hand the award having been announced more than five years prior to the commencement of the Act 2013, neither the possession has

been taken nor compensation paid, the petitioners are entitled to declaration that the acquisition proceedings initiated under the 1894 Act, in respect of

the subject land deemed to have lapsed. Ordered accordingly.

The writ petition is disposed of. There shall be no order as to costs.

CM No.13662/2015

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