Delhi Development Authority vs Rajan Sood

Delhi Development Authority ..Appellant (S)

Versus

Rajan Sood & Ors. ..Respondent (S)

With

CIVIL APPEAL NO. 1928 OF 2022

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 30.08.2016 passed by the High

Court of Delhi at New Delhi in Writ Petition (C) No.

1034/2015, by which the High Court has allowed the said

writ petition preferred by the private respondents herein –

original writ petitioners and has declared that the Signature Not Verified Digitally signed by R Natarajan Date: 2022.03.29 acquisition proceedings initiated under the Land 16:40:40 IST Reason: Acquisition Act, 1894 (hereinafter referred to as the Act,

1 1894) in respect of the subject lands are deemed to have

lapsed under sub­section (2) of section 24 of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (hereinafter

referred to as the Act, 2013), Delhi Development Authority

(DDA) and Government of NCT of Delhi have preferred the

present appeals.

2. Private respondent No.1 and 2 herein ­ original writ

petitioners filed the writ petition before the High Court for

a declaration that the acquisition proceedings initiated

under the Act, 1894 in respect of the subject lands are

deemed to have lapsed under sub­section (2) of section 24

of the Act, 2013. It was the case on behalf of the original

writ petitioners before the High Court that as the

possession of the land in question is with them and no

compensation has been paid, the land acquisition

proceedings are deemed to have lapsed. Heavy reliance

was placed on the decision of this Court in the case of

Pune Municipal Corporation and Anr. Vs. Harakchand

Misirimal Solanki and Ors, (2014) 3 SCC 183.

2 2.1 The petition was opposed by the appellants herein and

others. It was the specific case on behalf of the DDA that

as such the compensation was tendered to one Shiv

Kumar S/o Devi Chand. Relying upon the decision of this

Court in the case of Pune Municipal Corporation (supra),

the High Court, by the impugned judgment and order has

allowed the said writ petition and has declared that the

acquisition proceedings initiated under the Act, 1894 in

respect of the subject lands are deemed to have lapsed

under sub­section (2) of section 24 of the Act, 2013.

2.2 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, DDA and

Government of NCT of Delhi have preferred the present

appeals.

3. Learned counsel appearing on behalf of the DDA has

vehemently submitted that in the facts and circumstances

of the case the High Court has materially erred in

declaring that the acquisition proceedings have lapsed

under sub­section (2) of section 24 of the Act, 2013.

3 3.1 It is submitted on behalf of the DDA that in the present

case as such the possession was already taken over by the

Authority on 23.09.1986 after following the due procedure

as required and even a punchnama was also drawn,

which was the requirement while taking over possession.

3.2 It is urged that even the compensation was tendered to

the recorded owner ­ Shri Shiv Kumar through notice

under section 12(2) of the Act, 1894 but recorded owner

never came forward to accept the same. It is submitted

that therefore, the original writ petitioners cannot be

permitted to take the benefit under sub­section (2) of

section 24 of the Act, 2013.

3.3 It is further submitted that even the amount of

compensation of Rs.2.00 crores was deposited by the DDA

with the Land and Building Department towards

compensation. Therefore, the original writ petitioners are

not entitled to the benefit of deemed lapse.

3.4 It is further contended by learned counsel appearing on

behalf of the DDA and the Government of NCT of Delhi

4 that as such the original writ petitioners were not having

any locus to file the writ petition as their title to the

property is shrouded with fraud and investigation is

pending with the Anti­Corruption Branch. It is submitted

that as the possession of the land in question was already

taken over as far as back on 23.09.1986 and even

compensation of Rs.2.00 crores was deposited with the

Land and Building Department, in view of the subsequent

decision in the case of Indore Development Authority

Vs. Manoharlal and Ors., (2020) 8 SCC 129, it cannot be

said the acquisition proceedings have lapsed under sub­

section (2) of section 24 of the Act, 2013. 3.5 It is further submitted on behalf of the appellants that

while passing the impugned judgment and order, the High

Court has relied on the decision of this Court in the case

of Pune Municipal Corporation (supra). That, the said

decision has been subsequently overruled by the

Constitution bench of this Court in the case of Indore

Development Authority (supra).

5 3.6 In the alternative, it is submitted by the learned counsel

appearing on behalf of the respective appellants that

assuming, without admitting that the possession of the

land in question remain with the original writ petitioners,

in that case also, as there was an order of stay granted by

the High Court in the year 2011, in the writ petition filed

by the original writ petitioners and the High Court granted

the interim order of taking no coercive action/order qua

the land, therefore, in view of the decision of this Court in

the case of Indore Development Authority (supra), the

period under which the stay was operative is to be

excluded. Reliance is placed on para 366.8 of the decision

of this Court in the case of Indore Development

Authority (supra).

3.7 Making the above submission and relying upon the

aforesaid decision, it is prayed to allow the present

appeals.

4. Both these appeals are vehemently opposed by Ms. Pinky

Anand, learned Senior Advocate appearing on behalf of

6 the original writ petitioners. Counter affidavits have been

filed on behalf of private respondent No.1 and 2 – original

writ petitioners opposing the present appeals.

4.1 It is vehemently submitted by Ms. Anand, learned Senior

Advocate appearing on behalf of the original writ

petitioners that as such there are specific findings

recorded by the High Court that the original writ

petitioners continue to be in physical possession and

therefore, as neither the actual possession of land in

question was taken over nor any compensation was paid

and/or even tendered to the original writ petitioners. It is

rightly held that acquisition proceedings have lapsed.

4.2 It is urged that in fact in the earlier order passed by the

High Court on 09.11.2011 in writ petition No.7714/2011,

the Division Bench directed the authority to consider

their application under section 48 of the Act, 1894 and to

decide it on merits. That as per section 48 of the Act,

1894 only in a case where possession of the land is not

taken over by the acquiring authority, then only, the

application under section 48 of the Act, 1894 would be

7 maintainable. It is submitted therefore, when the Division

Bench directed the authority to consider the application

of the petitioners under section 48 of the Act, 1894 on

merits, it is to be presumed that only original writ

petitioners continue to remain possession. It is contended

that the authority might have taken ex­parte possession

on paper as alleged on 23.09.1986, however, the original

writ petitioners remained in possession actually. It is

further submitted by learned Senior Advocate appearing

on behalf of the original writ petitioners that there is also

a specific finding recorded by the High Court that the

authorities have failed to prove that any amount of

compensation was paid and/or tendered to the original

writ petitioners or even deposited with the treasury. It is

submitted that when the original writ petitioners remain

in possession and neither the compensation was

tendered nor it was paid, the twin conditions to declare

the acquisition proceedings as having lapsed under sub­

section (2) of section 24 of the Act, 2013 have been

satisfied. It is therefore submitted that the High Court

has not committed any error in declaring that the

8 acquisition proceedings in respect of the subject lands

are deemed to have lapsed under sub­section (2) of

section 24 of the Act, 2013

5. We have heard learned counsel appearing on behalf of the

respective parties at length.

6. By the impugned judgment and order the High Court has

held and declared that the land acquisition proceedings in

respect of the land in question are deemed to have lapsed

under sub­section (2) of section 24 of the Act, 2013. While

holding and declaring so the High Court has relied upon

decision of this Court in the case of Pune Municipal

Corporation (supra). However, the said decision of this

Court has been subsequently overruled by the decision of

this Court in the case of Indore Development Authority

(supra). In paragraph 365 to 366, this Court in the case of

Indore Development Authority (supra) has observed and

held as under: ­

“365. Resultantly, the decision rendered in Pune Municipal Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] is hereby overruled and all other decisions in which Pune Municipal

9 Corpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] has been followed, are also overruled. The decision in Sree Balaji Nagar Residential Assn. [Sree Balaji Nagar Residential Assn. v. State of T.N., (2015) 3 SCC 353 : (2015) 2 SCC (Civ) 298] cannot be said to be laying down good law, is overruled and other decisions following the same are also overruled. In Indore Development Authority v. Shailendra [Indore Development Authority v. Shailendra, (2018) 3 SCC 412 : (2018) 2 SCC (Civ) 426] , the aspect with respect to the proviso to Section 24(2) and whether “or” has to be read as “nor” or as “and” was not placed for consideration. Therefore, that decision too cannot prevail, in the light of the discussion in the present judgment.

366. In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1­1­2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

10 366.4. The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non­deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non­deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non­deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non­ payment or non­deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case

11 authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1­1­2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1­1­2014. It does not revive stale and time­barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.”

7. The High Court while passing the impugned judgment

and order has observed that the possession of the land in

question continued with the original writ petitioners and

that the compensation was neither paid nor even tendered

to the original writ petitioners. However, by holding that

the original writ petitioners have continued to remain in

possession, the High Court has relied upon the earlier

order dated 09.11.2011 passed in writ petition

No.7714/2011, by which the High Court directed the

authority to consider their application under section 48 of

the Act, 1894 on merits. However, it was the specific case

12 on behalf of the authority before the learned Single Judge

that the possession of the land in question was already

taken over on 23.09.1986 and even the compensation

amount of Rs.2.00 crores was deposited with the land and

building department.

7.1 It is the case on behalf of the original writ petitioners that

a purported letter dated 23.09.1986 allegedly taking

symbolic possession was never disclosed by appellants in

the proceedings conducted before the High Court on two

separate occasions and the same has been filed for the

first time in the present proceedings. The aforesaid is not

correct. Even in the impugned order itself in paragraph 2,

the High Court has noted the submissions on behalf of

the appellants to the effect that the possession was taken

over on 23.09.1986. Therefore, it cannot be said such a

plea is taken for the first time before this Court. It is the

case on behalf of the original writ petitioners, relying

upon the earlier order passed by the High Court dated

09.11.2011 in writ petition No.7714/2011 that, the

original writ petitioners continue to be in possession and

13 the actual possession has never been taken over.

However, it is required to be noted that even in the order

dated 09.11.2011, there was no specific finding given by

the High Court that the original writ petitioners are in

possession of the land in question. On the contrary, it is

observed that the authority to consider the application

under section 48 of the Act, 1894 on merits on the

assumption of the possession being with the original writ

petitioners. Therefore, while passing the order dated

09.11.2011 also, the High Court assumed the original

writ petitioners are in possession hence as such no

specific finding was given to the effect that the original

writ petitioners are in possession.

7.2 It is next contented on behalf of the original writ

petitioners that the alleged possession on 23.09.1986 is

illegal and it was a paper possession. However, it is

submitted on behalf of the appellants that possession of

land in question was taken over by drawing the

punchnama which can be said to be sufficient

compliance of the requirement while taking possession.

14 The High Court has also doubted the compensation being

tendered as contended on behalf of the appellant.

7.3 Be that as it may. Assuming for the sake of argument

that the original writ petitioners are found to be in

possession and the compensation was not tendered, in

that case also as can be seen from the order passed by

the High Court on 09.11.2011 in writ petition

No.7714/2011, the authority was restrained from taking

any coercive action in respect of the land in question.

Therefore, in view of the subsequent decision of this

Court in the case of Indore Development Authority

(supra ­ paragraph 366.8), the period, during which the

interim order is/was operative, has to be excluded in the

computation of five years’ period. In the present case

even, it is the contention on behalf of the original writ

petitioners that the order of no coercive action was

directed to be continued till the application under section

48 of the Act, 1894 was decided. It is the specific case on

behalf of the original writ petitioners before this Court

and even so stated in the written submissions that till

15 date no decision is taken on the application under section

48 of the Act, 1894. Meaning thereby the direction/stay

granted by the High Court while passing the order dated

09.11.2011 in writ petition No.7714/2011 continued

when the Act, 2013 came into force.

7.4 In that view of the matter and considering the decision of

this Court in case of Indore Development Authority

(supra), it cannot be said that the land acquisition

proceedings are deemed to have lapsed under sub­section

(2) of section 24 of the Act, 2013.

8. Applying the law laid down by this Court in the case of

Indore Development Authority (supra), more

particularly, paragraph 366, it cannot be said that the

land acquisition proceedings are deemed to have lapsed.

9. In view of the above and for the reasons stated above and

on the aforesaid ground alone that at the time when the

Act, 2013 came into force there was a stay granted by the

High Court vide order dated 09.11.2011 in writ petition

No.7714/2011 restraining the authority taking any

16 coercive action in respect of the land in question, the

impugned judgment and order passed by the High Court

declaring that the land acquisition proceedings are

deemed to have lapsed under sub­section (2) of section

24 of the Act, 2013, is unsustainable.

10. In view of the above and for the reasons stated above, the

present appeals are allowed. The impugned judgment and

order passed by the High Court in Writ Petition (C)

No.1043/2015 declaring that the land acquisition

proceedings under the Act, 1894 with respect to the land

in question are deemed to have lapsed under sub­section

(2) of section 24 of the Act, 2013, is hereby quashed and

set aside. The present appeals are allowed to the

aforesaid extent, accordingly. There shall be no order as

to costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, March 29, 2022.

17