LAND AND BUILDING DEPARTMENT THR. SECRETARY & ANR versus ATTRO DEVI & ORS. on 11 April 2023

1. Delay condoned.

2. Leave granted.

B3. The appellants have challenged the order dated 20.12.2017passed by the High Court of Delhi. Vide aforesaid order, writ petitionfiled by the respondents was allowed holding that in view of Section24(2) of the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (for short “the2013 Act”), the acquisition in respect to the land in dispute, has lapsed.C

4. From the facts of the case as are available on record, it isevident that vide notification dated 23.06.1989 issued under Section 4 ofthe Land Acquisition Act, 1894 large chunk of the land including the landof petitioner comprised in Khasra No.1 Etc/57/1 and Khasra No.1 Etc/58/1, situated in revenue estate of village Ghonda, Chauhan Khadar,DNew Delhi was sought to be acquired for planned development of Delhi.It was followed by the notification issued under Section 6 dated20.06.1990. The Award was announced on 19.06.1992.

5. A writ petition was filed in the High Court invoking Section24(2) of the 2013 Act claiming that the acquisition in question has lapsedEas neither possession has been taken nor the compensation therefor hasbeen paid. The appellant’s stand before the High Court was that thepossession of the land was taken on 06.12.2012 and handed over to theDDA on the spot. The compensation could not be paid to the recordedland owners as they never came forward to claim the same.F6. The High Court relying upon the judgment of this Court in Pune F6. The High Court relying upon the judgment of this Court in PuneMunicipal Corporation & Anr. v. Misirimal Solanki & Ors. (2014)3 SCC 183 held that since the compensation was not paid to thelandowners, i.e., the respondents herein, the acquisition in question haslapsed.G7. The arguments raised by learned counsel appearing for the G7. The arguments raised by learned counsel appearing for theappellants are that in view of the Constitution Bench judgment of thisCourt in Indore Development Authority v. Manoharlal and Others(2020) 8 SCC 129 whereby earlier judgment of this Court in PuneMunicipal Corporation & Anr.’s case (supra) was overruled, the orderpassed by the High Court is liable to be set aside. It was opined by theH

Constitution Bench that compliance of either of the two conditions i.e.taking over of possession of the land or payment of compensation, isgood enough to sustain the acquisition. From the undisputed facts availableon record it is evident that in the present case, the possession of land indispute was taken after the acquisition was complete.

8. Additionally, an important fact brought to our attention is thatthe subject land is required by NHAI for construction of the Delhi-Saharanpur-Dehradun Highway starting from Akshardham Junction toDelhi/UP Border, in the State of Delhi in Phase-I of BharatmalaPariyojana. Even the contractors have been appointed to execute theproject, which may be delayed due to pendency of the present appeal.The subject land is therefore a part of the project which is of nationalimportance.

9. On the other hand, the arguments raised by learned counsel forthe respondents are that the writ petition having been decided on thebasis of law as existing on the date of decision by the High Court cannotbe set aside on the basis of the subsequent judgment of this Court. TheHigh Court had held that compensation having not been paid, as per theinterpretation of Section 24(2) of the 2013 Act by this Court in PuneMunicipal Corporation’s case (supra), the acquisition proceedingslapsed. It is a matter of fact which has been noticed in the order passedby the High Court that the possession of the land had already been takenby the authority concerned.

10. Heard learned counsel appearing for the parties and perusedthe records.

11. The Constitution Bench of this Court in Indore DevelopmentAuthority’s case (supra) had opined that satisfaction of either of theconditions namely either taking possession of the acquired land or paymentof compensation to the landowners would be sufficient to save theacquisition from being lapsed in terms of Section 24(2) of the 2013 Act.Various questions posed before the Constitution Bench of this Courtwere also answered. Relevant para-Nos. 362 and 366 are extractedbelow:

“362. Resultantly, the decision rendered in Pune MunicipalCorporation & Anr. (supra) is hereby overruled and all otherdecisions in which Pune Municipal Corporation (supra) hasbeen followed, are also overruled. …

...

A

BC

D

E

F

G

H

A

B

C

D

E

F

G

H

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

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

366.2. In case the award has been passed within the windowperiod of five years excluding the period covered by an interimorder of the court, then proceedings shall continue as providedunder Section 24(1)(b) of the 2013 Act under the 1894 Act asif 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 proceedingsunder Section 24(2) of the 2013 Act takes place where due toinaction of authorities for five years or more prior tocommencement of the said Act, the possession of land has notbeen taken nor compensation has been paid. In other words,in case possession has been taken, compensation has notbeen paid then there is no lapse. Similarly, if compensationhas been paid, possession has not been taken then there isno lapse.

(emphasis supplied)

366.4. The expression “paid” in the main part of Section 24(2)of the 2013 Act does not include a deposit of compensationin court. The consequence of non- deposit is provided in theproviso to Section 24(2) in case it has not been depositedwith respect to majority of landholdings then all beneficiaries(landowners) as on the date of notification for landacquisition under Section 4 of the 1894 Act shall be entitledto compensation in accordance with the provisions of the 2013Act. In case the obligation under Section 31 of the LandAcquisition Act, 1894 has not been fulfilled, interest underSection 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 LAND AND BUILDING DEPARTMENT THR. SECRETARY v.ATTRO DEVI & ORS. [RAJESH BINDAL, J.]

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 landacquisition 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 notopen to him to claim that acquisition has lapsed under Section24(2) due to non-payment or non- deposit of compensationin court. The obligation to pay is complete by tendering theamount under Section 31(1). The landowners who had refusedto accept compensation or who sought reference for highercompensation, cannot claim that the acquisition proceedingshad lapsed under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to betreated 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 ofinquest report/memorandum. Once award has been passedon taking possession under Section 16 of the 1894 Act, theland vests in State there is no divesting provided under Section24(2) of the 2013 Act, as once possession has been takenthere is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemedlapse of proceedings are applicable in case authorities havefailed 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 withthe authority concerned as on 1-1-2014. The period ofsubsistence of interim orders passed by court has to beexcluded in the computation 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 aproceeding pending on the date of enforcement of the 2013Act i.e. 1-1-2014. It does not revive stale and time-barredclaims and does not reopen concluded proceedings nor allowlandowners to question the legality of mode of taking A

B

C

DE

F

G

H

380SUPREME COURT REPORTS

Apossession to reopen proceedings or mode of deposit ofcompensation in the treasury instead of court to invalidateacquisition.”

12. The issue as to what is meant by “possession of the land bythe State after its acquisition” has also been considered by ConstitutionBBench of Hon’ble Supreme Court in Indore Development Authority’scase (supra). It is opined therein that after the acquisition of land andpassing of award, the land vests in the State free from all encumbrances.The vesting of land with the State is with possession. Any person retainingthe possession thereafter has to be treated trespasser. When large chunkCof land is acquired, the State is not supposed to put some person orpolice force to retain the possession and start cultivating on the land till itis utilized. The Government is also not supposed to start residing orphysically occupying the same once process of the acquisition is complete.If after the process of acquisition is complete and land vest in the Statefree from all encumbrances with possession, any person retaining theDland or any re-entry made by any person is nothing else but trespass onthe State land. Relevant paragraphs 244, 245 and 256 are extractedbelow:

“244. Section 16 of the Act of 1894 provided that possessionof land may be taken by the State Government after passingEof an award and thereupon land vest free from allencumbrances in the State Government. Similar are theprovisions made in the case of urgency in Section 17(1). Theword “possession” has been used in the Act of 1894, whereasin Section 24(2) of Act of 2013, the expression “physicalFpossession” is used. It is submitted that drawing of panchnamafor taking over the possession is not enough when the actualphysical possession remained with the landowner and Section24(2) requires actual physical possession to be taken, not thepossession in any other form. When the State has acquiredGthe land and award has been passed, land vests in the StateGovernment free from all encumbrances. The act of vestingof the land in the State is with possession, any person retainingthe possession, thereafter, has to be treated as trespasser andhas no right to possess the land which vests in the State freefrom all encumbrances.H

LAND AND BUILDING DEPARTMENT THR. SECRETARY v.ATTRO DEVI & ORS. [RAJESH BINDAL, J.]

245. The question which arises whether there is any differencebetween taking possession under the Act of 1894 and theexpression “physical possession” used in Section 24(2). As amatter of fact, what was contemplated under the Act of 1894,by taking the possession meant only physical possession ofthe land. Taking over the possession under the Act of 2013always amounted to taking over physical possession of theland. When the State Government acquires land and drawnsup a memorandum of taking possession, that amounts totaking the physical possession of the land. On the large chunkof property or otherwise which is acquired, the Governmentis not supposed to put some other person or the police forcein possession to retain it and start cultivating it till the land isused by it for the purpose for which it has been acquired.The Government is not supposed to start residing or tophysically occupy it once possession has been taken bydrawing the inquest proceedings for obtaining possessionthereof.Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on theopen land or starts residing in the outhouse, etc., is deemedto be the trespasser on land which in possession of the State.The possession of trespasser always inures for the benefit ofthe real owner that is the State Government in the case.

xxxx

256. Thus, it is apparent that vesting is with possession andthe statute has provided under Sections 16 and 17 of the Actof 1894 that once possession is taken, absolute vestingoccurred. It is an indefeasible right and vesting is withpossession thereafter. The vesting specified under Section 16,takes place after various steps, such as, notification underSection 4, declaration under Section 6, notice under Section9, award under Section 11 and then possession. The statutoryprovision of vesting of property absolutely free from allencumbrances has to be accorded full effect. Not only thepossession vests in the State but all other encumbrances arealso removed forthwith. The title of the landholder ceasesand the state becomes the absolute ownerand in possessionof the property. Thereafter there is no control of the landowner ABC

DE

F

G

H

382SUPREME COURT REPORTS

Aover the property. He cannot have any animus to take theproperty and to control it. Even if he has retained thepossession or otherwise trespassed upon it after possessionhas been taken by the State, he is a trespasser and suchpossession of trespasser enures for his benefit and on behalf”of the owner.B

(emphasis supplied)

13. It is also a fact to be noticed and taken care of that largechunk of land is acquired for planned development to take care ofimmediate need and also keep buffer for future requirements. Such portionCof land may be lying vacant also. As has been observed in IndoreDevelopment Authority’s case(supra) by this Court, the State agenciesare not supposed to put police force to protect possession of the landtaken after process of acquisition is complete. As far as the case in handis concerned, the land even if was lying vacant, is required now for aproject of national importance for construction of the Delhi-Saharanpur-DDehradun Highway starting from Akshardham Junction to Delhi/UPBorder, in the State of Delhi in Phase-I of Bharatmala Pariyojana.

14. It is the undisputed fact on the record, as has been noticed inthe impugned order passed by the High Court, the possession of the landwas taken over by the Land Acquisition Collector and handed over toEDelhi Development Authority. Report of possession proceedings dated06.12.2012 has also been placed on record. Hence, one of the conditionsbeing satisfied, we need not examine any other argument.

15. Keeping in view the aforesaid fact and the law laid down bythe Constitution Bench of this Court in Indore Development Authority’sFcase (supra), in our opinion the order passed by the High Court cannotbe legally sustained and the same is accordingly set aside. However, therespondents shall be entitled to receive compensation as per theirentitlement. The Land Acquisition Officer should also take steps to paythe same to the rightful owner.

G16. The appeal is disposed of accordingly.

Ankit Gyan(Assisted by : Shraddha Singh and Aarsh Choudhary, LCRAs)

Appeal disposed of.

H