DELHI DEVELOPMENT AUTHORITY V versus SHYAMO & ORS. on 20 January 2023

DELHI DEVELOPMENT AUTHORITY

v.

SHYAMO & ORS.

(Civil Appeal No. 365 of 2023)

JANUARY 20, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 – s.24(2) –High Court relying on its decision in Gyanender Singh & Ors. v.Union of India & Ors. [W.P. (C) No. 1393/2014], allowed the writpetition filed by the original writ petitioner-respondent no.1 hereinand declared that the acquisition w.r.t the land in question is deemedto have lapsed u/s.24(2) on the ground that the compensation wasnot tendered to the original writ petitioner– On appeal, held: Whiledeciding the Gyanender Singh case, the High Court had relied uponthe earlier decision of Supreme Court in Pune Municipal Corporationcase which has been overruled by the Constitution Bench of SupremeCourt in Indore Development Authority case –Applying the law laiddown in Indore Development Authority case and more particularlywhen the possession of the land in question was taken over bydrawing the panchnama and preparing the possession proceedingsand the same was handed over to the DDA and furthermore, as theoriginal writ petitioner was not the recorded owner, there was noquestion of tendering any compensation to him at the relevant time–Also, the High Court entertained the writ petition without decidingthe ownership and title of the original writ petitioner – Impugnedjudgmentis unsustainable, set aside.

Land Acquisition – Writ petition challenging acquisition/lapseof acquisition proceedings – Proving ownership and title– Held:For entertaining any writ petition, the ownership and title has to befirst established and proved and only thereafter a person claimingownership and title can be permitted to file the writ petitionchallenging the acquisition/lapse of acquisition proceedings.

Indore Development Authority vs. Manoharlal and Ors.(2020) 8 SCC 129 : [2020] 3 SCR 1 – followed.

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APune Municipal Corporation and Anr. Vs. HarakchandMisirimal Solanki and Ors., (2014) 3 SCC 183 : [2014]1 SCR 783 – referred to.

Gyanender Singh & Ors. v. Union of India & Ors.Decision dtd.23.09.2014 of High Court of Delhi inBW.P. (C) No. 1393/2014 – referred to.

CCIVIL APPELLATE JURISDICTION : Civil Appeal No. 365 of2023.

From the Judgment and Order dated 20.12.2017 of the High Courtof Delhi at New Delhi in WP (C) No.12174 of 2015.

Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, RahulDPandey, Avs Kadyan, Rajiv Ranjan, Mishra Saurabh, Ms. SujeetaSrivastava, Nishit Agrawal, Ms. Kanishka Mittal, Ms. Vanya Agrawal,Ashwani Kumar, Anshay Dhatwalia, Ms. Binu Tamta, Ms. Smita Maan,Nitin Mishra, Ishaan Sharma, Mohit Kumar Gupta, Shekhar Yadav, Ms.Iti Sharma, Rahul Bhatia, Rachita Kadyan, N. S. Vashist, Gagan Gupta,EMs. Astha Tyagi, Dinesh Chander Trehan, Ms. Diksha Narula, Advs.for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

F1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.12.2017 passed by the High Court of Delhi at NewDelhi in Writ Petition (Civil) No. 12174 of 2015 by which the High Courthas allowed the said writ petition preferred by the respondent no.1 herein– original writ petitioner and has declared that the acquisition with respectto the land in question is deemed to have lapsed under Section 24(2) ofGthe Right to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as‘the Act 2013’), the Delhi Development Authority has preferred thepresent appeal.

2. From the impugned judgment and order passed by the HighHCourt it appears that it was the specific case on behalf of the LAC

before the High Court and so stated in the counter affidavit filed by theLAC that a notification under Section 4 of the Land Acquisition Act,1894 was issued on 23.09.1989 for planned development of Delhi forthe acquisition of the lands falling in Village Ghonda Gujaran Khadar.That award was declared on 19.06.1992 and the actual vacant physicalpossession of the subject land was taken on 21.03.2007, out of whichthe original petitioner has been claiming 1/12[th ]share on the spot andhanded over to the DDA after preparing possession proceedings on thespot. It was also stated that the recorded owners/heirs never cameforward to receive any compensation and hence the same is lying unpaid.However, thereafter without even deciding the question of ownershipand title of the original writ petitioner and leaving the same open andrelying upon its earlier decision in the case of Gyanender Singh &Ors. vs. Union of India & Ors. in W.P. (C) No. 1393 of 2014 decidedon 23.09.2014, the High Court has passed the impugned judgment andorder and has declared the acquisition proceedings deemed to have lapsedon the ground that the compensation was not tendered to the originalwrit petitioner.

2.1 However, it is required to be noted that while deciding theGyanender Singh (supra) the High Court has relied upon the earlierdecision of this Court in the case of Pune Municipal Corporation andAnr. Vs. Harakchand Misirimal Solanki and Ors., (2014) 3 SCC183.It is to be noted that the decision of this Court in the case of PuneMunicipal Corporation and Anr. (supra) has beenover-ruled by theConstitution Bench of this Court in the case of Indore DevelopmentAuthority versus Manoharlal and others reported in (2020) 8 SCC129.In paragraphs 365 and 366, it is observed and held as under:- “365. Resultantly, the decision rendered in PuneMunicipal Corpn. [Pune Municipal Corpn. v. HarakchandMisirimal Solanki, (2014) 3 SCC 183] is hereby overruled andall other decisions in which Pune Municipal Corpn. [PuneMunicipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3SCC 183] has been followed, are also overruled. The decisionin Sree Balaji Nagar Residential Assn. [Sree Balaji NagarResidential Assn. v. State of T.N., (2015) 3 SCC 353] cannotbe said to be laying down good law, is overruled and otherdecisions following the same are also overruled. In IndoreDevelopment Authority v. Shailendra [(2018) 3 SCC 412], the AB

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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 forconsideration. Therefore, that decision too cannot prevail, inthe light of the discussion in the present judgment.

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

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

366.2. In case the award has been passed within thewindow period of five years excluding the period covered byan interim order of the court, then proceedings shall continueas provided under Section 24(1)(b) of the 2013 Act under the1894 Act 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 underSection 24(2) of the 2013 Act takes place where due to inactionof authorities for five years or more prior to commencementof the said 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 isno lapse. Similarly, if compensation has been paid, possessionhas not 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 theproviso to Section 24(2) in case it has not been deposited withrespect to majority of landholdings then all beneficiaries(landowners) as on the date of notification for land acquisitionunder Section 4 of the 1894 Act shall be entitled tocompensation 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 of compensation (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, compensationunder the 2013 Act has to be paid to the “landowners” as onthe date of notification for land acquisition under Section 4 ofthe 1894 Act.

366.5. In case a person has been tendered thecompensation as provided under Section 31(1) of the 1894 Act,it is not open to him to claim that acquisition has lapsed underSection 24(2) due to non-payment or non-deposit ofcompensation in court. The obligation to pay is complete bytendering the amount under Section 31(1). The landownerswho had refused to accept compensation or who soughtreference for higher compensation, cannot claim that theacquisition proceedings had lapsed under Section 24(2) of the2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act isto be treated as part of Section 24(2), not part of Section24(1)(b).

366.7. The mode of taking possession under the 1894Act and as contemplated under Section 24(2) is by drawing ofinquest report/memorandum. Once award has been passed ontaking possession under Section 16 of the 1894 Act, the landvests in State there is no divesting provided under Section 24(2)of the 2013 Act, as once possession has been taken there is nolapse under 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 subsistenceof interim 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 riseto new cause of action to question the legality of concludedproceedings of land acquisition. Section 24 applies to a A

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Aproceeding pending on the date of enforcement of the 2013Act i.e. 1-1-2014. It does not revive stale and time-barred claimsand does not reopen concluded proceedings nor allowlandowners to question the legality of mode of taking possessionto reopen proceedings or mode of deposit of compensation inthe treasury instead of court to invalidate acquisition.”B

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3. Applying the law laid down by this Court in the case of IndoreDevelopment Authority (supra) to the facts of the case on hand andmore particularly when the possession of the land in question was takenover by drawing the panchnama and preparing the possession proceedingsand the same was handed over to the DDA and that the original writCpetitioner was not the recorded owner and therefore there was noquestion of tendering any compensation to him at the relevant time, theimpugned judgment and order passed by the High Court declaring thatthe acquisition with respect to the land in question is deemed to havelapsed is unsustainable.

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D4. At this stage it is also required to be noted that the original writpetitioner was claiming 1/12[th] share in the land in question. However,without deciding the ownership and title of the original writ petitioner theHigh Court has entertained the writ petition filed by the respondent no.1herein – writ petitioner and has declared that the acquisition with respectto the land in question is deemed to have lapsed. While deciding anyEownership and title of the original writ petitioner in theland in question,the High Court was not justified in entertaining the writ petition. Forentertaining any writ petition the ownership and title has to be firstestablished and proved and only thereafter a person claiming ownershipand title can be permitted to file the writ petition challenging the acquisition/Flapse of acquisition proceedings. Under the circumstances also theimpugned judgment and order passed by the High Court is unsustainable.

5. In view of the above and for the reason stated above presentappeal succeeds. The impugned judgment and order passed by the HighCourt is hereby quashed and set aside. Consequently, the original writGpetition filed by respondent no.1 herein - original writ petitioner filedbefore the High Court stands dismissed.

Present appeal is accordingly allowed. No costs.

Appeal allowed.