DELHI DEVELOPMENT AUTHORITY versus ANITA SINGH & ORS. on 1 May 2023

1. The order dated 22.08.2017 passed by the High Court of Delhiin Writ Petition (C) No.5339/2016 has been impugned before this Court.Vide aforesaid order, the Writ Petition filed by the Respondent no.1invoking Section 24(2) of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and Resettlement Act,2013 (hereinafter referred to as “the 2013 Act”) was allowed and itwas opined that acquisition in question has lapsed.

2. The facts of the case as are available on record are that theRespondent no.1 had filed a writ petition stating that she had purchased100 square yards bearing Khasra No.140/9/1 situated in the RevenueEstate of Village Dichaun Kalan Delhi by virtue of sale deed dated A

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A04.03.2005. The said land was subject matter of acquisition. ANotification under Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as “the 1894 Act”) was issued on 07.04.2006which was followed by a Notification under Section 6 of the 1894 on04.04.2007. The Award was announced by the Land Acquisition Collectoron 30.12.2008 under Section 11 of the 1894 Act.B

3. The writ petition was filed in the year 2016 invoking Section24(2) of the 2013 Act claiming that neither the compensation has beenpaid to the Respondent no.1 nor the possession of the land had beentaken by the acquiring authority, hence, the acquisition lapsed.

C4. The stand taken by the Land Acquisition Collector in the counteraffidavit filed before the High Court was that the possession of theacquired land was taken on 10.02.2012 except 3 biswas of land on whichcertain structure had been build up. The Respondent no.1 not being therecorded owner of land, the compensation for the land, including thecases where there was dispute regarding ownership, was deposited withDthe Reference Court on 27.12.2013.

5. The High Court found that one of the conditions laid down inSection 24(2) of the 2013 Act having not been complied with regardingpayment of compensation to the Respondent no.1, the acquisition haslapsed.E

6. The learned counsel for the appellant submitted that in view ofthe Constitution Bench judgment of this Court in Indore DevelopmentAuthority v. Manoharlal and Others[1], whereby the earlier judgmentof this Court in Pune Municipal Corporation & Anr. v. MisirimalSolanki & Ors.[2] was overruled. The order passed by the High CourtFcannot be legally sustained. It was opined by the Constitution Benchthat compliance of either of the two conditions i.e. taking over ofpossession of the land or payment of compensation is sufficient to sustainthe acquisition. In the case in hand, it is the admitted case of theRespondent no.1 that she was not the recorded owner of the land thoughGshe claimed that the plot in question was purchased by her vide saledeed dated 04.03.2005. The land is being utilized by the Government forconstruction of 100 Meter wide Road, under Planned Development ofDelhi. The land is required for UER-II, which is connecting NH-1, NH- 1(2020) 8 SCC 129H2 (2014) 3 SCC 183(2014) 3 SCC 183

2 (2014) 3 SCC 183(2014) 3 SCC 183

10 and NH-8 further connecting it to NH-2. The said project is of greatpublic importance and has to be completed before 15 August 2023 inlight of Amrit Mahotsav (75 years of Independence). This will help inde-congestion of Delhi and provide better connectivity to the public. Asthere was dispute regarding ownership, the amount of compensationwas deposited with the Reference Court on 27.12.2013. The same willamount to tendering the compensation as in case of dispute of ownershipsit could not have been paid to anyone. Learned counsel for the appellantfurther submitted that the Respondent no.1 herself had filed applicationon 06.05.2009 before the Land Acquisition Collector for release ofcompensation. She clearly stated therein that though she is not therecorded owner of the land, as she had purchased the same throughgeneral power of attorney, the compensation should not be paid to therecorded owner of the plot. This was admission on the part of theRespondent no.1 that she had knowledge about acquisition of land. Theorder passed by the High Court is liable to be set aside.

7. Heard learned counsel for the parties and perused the paperbooks.

8. The Constitution Bench of this Court in Indore DevelopmentAuthority’s case (supra) has 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 extracted below:

“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. …

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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.

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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.

366.4. The expression “paid” in the main part of Section24(2) of the 2013 Act does not include a deposit ofcompensation in court. The consequence of non- deposit isprovided in the proviso to Section 24(2) in case it has notbeen deposited with respect to majority of landholdings thenall beneficiaries (landowners) as on the date of notificationfor land acquisition under Section 4 of the 1894 Act shall beentitled to compensation in accordance with the provisionsof the 2013 Act. In case the obligation under Section 31 ofthe Land Acquisition Act, 1894 has not been fulfilled, interestunder Section 34 of the said Act can be granted. Non-depositof compensation (in court) does not result in the lapse of landacquisition proceedings. In case of non-deposit with respectto 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 compensation DELHI DEVELOPMENT AUTHORITY v. ANITA SINGH &ORS. [RAJESH BINDAL, J.]

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

9. It is the admitted case of Respondent no.1 that she was notthe recorded owner of the land at the time of issuance of Notificationunder Section 4 of 1894 Act or even at the time of the passing of theAward. This is even mentioned in the application dated 06.05.2009 filedby her to the Land Acquisition Collector for release of compensation.This establishes knowledge of acquisition and passing of award. On A

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Aaccount of fact that there was dispute of ownership, the amount ofcompensation was deposited by the Land Acquisition Collector with theReference Court under Section 30/31 of the 1894 Act. On the issue ofdeposit of compensation with the Reference Court, the position of lawhas been settled in Indore Development Authority’s case (supra). Paras117, 118 and 119 thereof, which are extracted below:B

“117. Payment of compensation under the 1894 Act isprovided for by Section 31 of the Act, which is to be afterpassing of the award under Section 11. The exception, is incase of urgency under Section 17, is where it has to betendered before taking possession. Once an award has beenpassed, the Collector is bound to tender the payment ofcompensation to the persons interested entitled to it, as foundin the award and shall pay it to them unless “prevented” bythe contingencies mentioned in sub-section (2) of Section 31.Section 31(3) contains a non obstante clause whichauthorises the Collector with the sanction of the appropriateGovernment, in the interest of the majority, by the grant ofother lands in exchange, the remission of land revenue onother lands or in such other way as may be equitable.

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118. Section 31(1) enacts that the Collector has to tenderEpayment of the compensation awarded by him to the personsinterested entitled thereto according to the award and shallpay such amount to a person interested in the land, unless he(the Collector) is prevented from doing so, for any of the threecontingencies provided by sub-section (2). Section 31(2)provides for deposit of compensation in court in case the StateFis prevented from making payment in the event of:

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(i) refusal to receive it;

(ii) if there be no person competent to alienate the land;

(iii) if there is any dispute as to the title to receive thecompensation; or G

(iv) if there is dispute as to the apportionment.

In such exigencies, the Collector shall deposit the amount ofthe compensation in the court to which a reference underSection 18 would be submitted.

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119. Section 34 deals with a situation where any of theobligations under Section 31 is not fulfilled i.e. when theamount of compensation is not paid or deposited on or beforetaking possession of the land, the Collector shall pay theamount awarded with interest thereon @ 9% p.a. from thetime of so taking possession until it shall have been so paidor deposited; and after one year from the date on whichpossession is taken, interest payable shall be @ 15% p.a.The scheme of the 1894 Act clearly makes it out that when theaward is passed under Section 11, thereafter possession istaken as provided under Section 16, land vests in the StateGovernment. Under Section 12(2), a notice of the award hasto be issued by the Collector. Taking possession is notdependent upon payment. Payment has to be tendered underSection 31 unless the Collector is “prevented from makingpayment”, as provided under Section 31(2). In case of failureunder Section 31(1) or 31(3), also Collector is not precludedfrom making payment, but it carries interest under Section 34@ 9% for the first year from the date it ought to have beenpaid or deposited and thereafter @ 15%. Thus, once landhas been vested in the State under Section 16, in case of failureto pay the compensation under Section 31(1) or to depositunder Section 31(2), compensation has to be paid along with-interest, and due to noncompliance of Section 31, there is nolapse of acquisition. The same spirit has been carried forwardin the 2013 Act by providing in Section 24(2). Once possessionhas been taken though the payment has not been made, thecompensation has to be paid along with interest as envisagedunder Section 34, and in a case, payment has been made,possession has not been taken, there is no lapse under Section24(2). In a case where possession has been taken under the1894 Act as provided by Section 16 or 17(1) the land vestsabsolutely in the State, free from all encumbrances, ifcompensation is not paid, there is no divesting there will beno lapse as compensation carries interest @ 9% or @ 15%as envisaged under Section 34 of the 1894 Act. The provisoto Section 24(2) makes some wholesome provision in case theamount has not been deposited with respect to majority oflandholdings, in such an event, not only those persons but AB

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SUPREME COURT REPORTS

Aall the beneficiaries, though for minority of holdingcompensation has been paid, shall be entitled to highercompensation in accordance with the provisions of the 2013Act. The expression used is “all beneficiaries specified in thenotification for acquisition under Section 4 of the said LandAcquisition Act” i.e. the 1894 Act, means that the personsBwho are to be paid higher compensation are those who havebeen recorded as beneficiaries as on the date of notificationunder Section 4. The proviso gives effect to, and furthers theprinciple that under the 1894 Act, the purchases made afterissuance of notification under Section 4 are void. As such,Cthe benefit of higher compensation under the proviso toSection 24(2) is intended to be given to the beneficiariesmentioned in the notification under Section 4 of the 1894Act.”

D10. Further, with reference to Section 24(2) of the 2013 Act, theposition is summed up in para 208 of Indore Development Authority’scase (supra), which is extracted below:

“208. … … … In our opinion, when amount has beentendered, the obligation has been fulfilled by the Collector.ELandowners cannot be forced to receive it. In case a personhas not accepted the amount wants to take the advantage ofnon-payment, though the amount has remained (sic unpaid)due to his own act. It is not open to him to contend that theamount has not been paid to him, as such, there should beFlapse of the proceedings.Even in a case when offer forpayment has been made but not deposited, liability to payamount along with interest subsist and if not deposited formajority of holding, for that adequate provisions have beengiven in the proviso also to Section 24(2). The scheme of the2013 Act in Sections 77 and 80 is also the same as thatGprovided in Sections 31 and 34 of the 1894 Act.”

11. The issue as to what is meant by “possession of the land bythe State after its acquisition” has also been considered in IndoreDevelopment Authority’s case(supra). It is opined therein that afterH

the acquisition of land and passing of award, the land vests in the Statefree from all encumbrances. The vesting of land with the State is withpossession. Any person retaining the possession thereafter has to betreated trespasser. When large chunk of land is acquired, the State is notsupposed to put some person or police force to retain the possession andstart cultivating on the land till it is utilized. The Government is also notsupposed to start residing or physically occupying the same once processof the acquisition is complete. If after the process of acquisition iscomplete and land vest in the State free from all encumbrances withpossession, any person retaining the land or any re-entry made by anyperson is nothing else but trespass on the State land. Relevant paragraphs244, 245 and 256 are extracted below:

“244. Section 16 of the Act of 1894 provided that possessionof land may be taken by the State Government after passingof 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 “physicalpossession” 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 acquiredthe 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.

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 drawns AB

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up 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.

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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 landownerover 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 behalfof the owner.”

12. As per the stand taken by the appellant, the land in question isbeing utilised for UER-II, which is connecting NH-1, NH-10 and NH-8further connecting it to NH-2. The said project is of great publicimportance and has to be completed before 15.08.2023 in light of AmritMahotsav (75 years of Independence). This will help in de-congestionof Delhi.

13. From the facts as are available on record, it is evident thatRespondent no.1 was admittedly not the recorded owner of the land attime of acquisition thereof or pronouncement of Award by the LandAcquisition Collector. The amount of compensation was deposited withthe Reference Court in term of Section 30/31 of the 1894 Act as thesame could not be paid to Respondent no.1. Hence, one of the conditionsbeing satisfied, in our view the order passed by the High Court cannotbe legally sustained whereby the acquisition has been held to have lapsedin terms of Section 24(2) of the 2013 Act.

14. The appeal is accordingly allowed and the impugned orderpassed by the High Court is set aside. The Writ Petition filed by theRespondent no.1 in the High Court is dismissed.

Ankit Gyan(Assisted by : Mahendra Yadav, LCRA)

Appeal allowed.

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