GOVT. OF NCT OF DELHI AND ANR. versus SHIV DUTT SHARMA AND ANR. on 24 November 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Delhi at New Delhi in Writ Petition(C) No. 1870 of 2016 by which the High Court has allowed the said writpetition preferred by the respondent No.1 herein and has declared thatthe acquisition with respect to the land in question has lapsed underSection 24(2) of the Right to Fair Compensation and Transparency inLand Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafterreferred to as “Act, 2013”), the Government of NCT of Delhi as well asthe Land Acquisition Collector have preferred the present appeals.

2. We have heard Ms. Astha Tyagi and Shri Nishit Agrawal,learned counsel appearing on behalf of the respective appellants andShri Manish K. Bishnoi, learned counsel appearing on behalf of therespondent No.1.

3. At the outset, it is required to be noted that while passing theimpugned judgment and order, the High Court has relied upon the decisionof this Court in the case of Pune Municipal Corporation and Anr.Vs. Harakchand Misirimal Solanki and Ors. (2014) 3 SCC 183and has declared that the acquisition with respect to the land in questionhas lapsed under Section 24(2) of the Act, 2013 as the compensationhas not been paid/tendered to the original writ petitioner. However, thereis a specific finding given by the High Court that the possession of thesubject land has been taken over, however, the compensation has notbeen paid to the recorded owner.

3.1 It is the case on behalf of the respondent No.1 that the actualpossession of the land in question has not been taken over as the land inquestion is occupied by the encroachers and that the area in question isknown as ‘Sanjay Mohalla’. However, it is required to be noted and asobserved hereinabove, in paragraph 8, the High Court has specificallyobserved that there is a categorical assertion made in the counter affidavitfiled by the Land Acquisition Collector that the possession of the subject A

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Aland has been taken over, however, the compensation has not been paidto the recorded owner. It may be that there may be illegal occupantsand / or encroachers, but that does not mean that the possession of theland in question was taken over and/or handed over to the beneficiarydepartment on 21.06.1973. As per the case on behalf of the LandAcquisition Collector, in any case, the landowner can be permitted toBtake the benefit of the encroachment made on the land in question. Bethat it may, as observed hereinabove, while passing the impugnedjudgment and order, the High Court has relied upon the decision of thisCourt in the case of Pune Municipal Corporation and Anr. (supra)and the said decision in the case of Pune Municipal Corporation andCAnr. (supra) has been subsequently specifically overruled by theConstitution Bench of this Court in the case of Indore DevelopmentAuthority Vs. Manoharlal and Ors. (2020) 8 SCC 129. In paragraphs365 and 366, it is observed and held as under:- “365. Resultantly, the decision rendered in Pune MunicipalDCorpn. [Pune Municipal Corpn. v. Harakchand Misirimal Solanki,(2014) 3 SCC 183] is hereby overruled and all other decisions inwhich Pune Municipal Corpn. [Pune Municipal Corpn. v.Harakchand Misirimal Solanki, (2014) 3 SCC 183] has beenfollowed, are also overruled. The decision in Sree Balaji NagarResidential Assn. [Sree Balaji Nagar Residential Assn. v. StateEof T.N., (2015) 3 SCC 353] cannot be said to be laying downgood law, is overruled and other decisions following the same arealso overruled. In Indore Development Authority v. Shailendra[(2018) 3 SCC 412], the aspect with respect to the proviso toSection 24(2) and whether “or” has to be read as “nor” or asF“and” was not placed for consideration. Therefore, that decisiontoo cannot prevail, in the light of the discussion in the presentjudgment.

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

G366.1. Under the provisions of Section 24(1)(a) in case theaward is not made as on 1-1-2014, the date of commencement ofthe 2013 Act, there is no lapse of proceedings. Compensation hasto be determined under the provisions of the 2013 Act.

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

366.3. The word “or” used in Section 24(2) betweenpossession and compensation has to be read as “nor” or as “and”.The deemed lapse of land acquisition proceedings under Section24(2) of the 2013 Act takes place where due to inaction ofauthorities for five years or more prior to commencement of thesaid Act, the possession of land has not been taken norcompensation has been paid. In other words, in case possessionhas been taken, compensation has not been paid then there is nolapse. Similarly, if compensation has been paid, possession hasnot been taken then there is no lapse.

366.4. The expression “paid” in the main part of Section24(2) of the 2013 Act does not include a deposit of compensationin court. The consequence of non-deposit is provided in the provisoto Section 24(2) in case it has not been deposited with respect tomajority of landholdings then all beneficiaries (landowners) as onthe date of notification for land acquisition under Section 4 of the1894 Act shall be entitled to compensation in accordance with theprovisions of the 2013 Act. In case the obligation under Section31 of the Land Acquisition Act, 1894 has not been fulfilled, interestunder Section 34 of the said Act can be granted. Non-deposit ofcompensation (in court) does not result in the lapse of landacquisition proceedings. In case of non-deposit with respect tothe majority of holdings for five years or more, compensation underthe 2013 Act has to be paid to the “landowners” as on the date ofnotification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensationas provided under Section 31(1) of the 1894 Act, it is not open tohim to claim that acquisition has lapsed under Section 24(2) dueto non-payment or non-deposit of compensation in court. Theobligation to pay is complete by tendering the amount under Section31(1). The landowners who had refused to accept compensationor who sought reference for higher compensation, cannot claimthat the acquisition proceedings had lapsed under Section 24(2)of the 2013 Act.

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

366.7. The mode of taking possession under the 1894 Actand as contemplated under Section 24(2) is by drawing of inquestreport/memorandum. Once award has been passed on takingpossession under Section 16 of the 1894 Act, the land vests inState there is no divesting provided under Section 24(2) of the2013 Act, as once possession has been taken there is no lapseunder Section 24(2).

366.8. The provisions of Section 24(2) providing for adeemed lapse of proceedings are applicable in case authoritieshave failed due to their inaction to take possession and paycompensation for five years or more before the 2013 Act cameinto force, in a proceeding for land acquisition pending with theauthority concerned as on 1-1-2014. The period of subsistence ofinterim orders passed by court has to be excluded in thecomputation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise tonew cause of action to question the legality of concludedproceedings of land acquisition. Section 24 applies to a proceedingpending on the date of enforcement of the 2013 Act i.e. 1-1-2014.It does not revive stale and time-barred claims and does not reopenconcluded proceedings nor allow landowners to question thelegality of mode of taking possession to reopen proceedings ormode of deposit of compensation in the treasury instead of courtto invalidate acquisition.”

4. In view of the above and for the reasons stated above, and,more particularly, considering the subsequent decision of the ConstitutionBench of this Court in the case of Indore Development Authority(supra), the impugned judgment and order passed by the High Court isunsustainable and the same deserves to be quashed and set aside and isaccordingly quashed and set aside.

The submission on behalf of the respondents that the encroachmenton the land in question is being regularized is concerned, that is not thesubject matter before this Court. It is ultimately for the appropriate courtto take appropriate decision. However, so far as the impugned judgmentand order passed by the High Court is concerned, the same is GOVT. OF NCT OF DELHI AND ANR. v. SHIV DUTT SHARMAAND ANR. [M. R. SHAH, J.]

unsustainable in view of the decision of this Court in the case of IndoreDevelopment Authority (supra) and as observed hereinabove. Thepresent appeals are accordingly allowed. No costs.

Pending application, if any, also stands disposed of.

Ankit Gyan

Appeals allowed.

(Assisted by : Aarsh Choudhary, LCRA)

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