W.P.(C)/1230/2018 of HARNARAIN AND ORS Vs UNION OF INDIA AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 1230/2018

HARNARAIN AND ORS.

..... Petitioner

Through: Mr Rajiv Yadav, Advocate.

versus

UNION OF INDIA & ORS.

..... Respondents

Through: Mr. Chiranjeev Kumar, Advocate for R-1/UOI R-1/UOI

Mr Rajesh Sharma, Advocate for LAC/L&B Ms. Garima Prashad, Standing counsel for R-5/SDMC. LAC/L&B Ms. Garima Prashad, Standing counsel for R-5/SDMC.

CORAM:JUSTICE S.MURALIDHAR JUSTICE I.S. MEHTA

O R R19.03.2019

1. The prayers in the present petition read as under:

“i. Issue writ of Mandamus, Prohibition and Certiorari or any otherappropriate order or direction to the respondents to quash thenotification F1O (20)/85-L&B/4919 dated 19.2.1979 andF.10(20)/75-L&B 27414 dated 27.9.1980 under section 4 and 6of the Land Acquisition Act, 1894 and the award no. 56/86-87dated 19.9.1986 passed by the than L.A.C.(MSW) Delhi ofvillage Samalka in respect of the petitioners' land falling in Khatano. 204 and Khasrakhasra no. 10/11(4-16), 12(4-16), 19(4-16),20(4-16), 21/1(2-5), 11//14(3-11), 15(4-16) , 16(4-16), 17(4-8),24(6-11), 25/1(0-13), 25/2(4-3), 147/4(4-16), 5(4-16), 15//1/1(2-8) situated in village Samalka, being lapsed on thecommencement of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013.

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ii. Issue writ ofMandamus ordirection to the respondents tocancelthe endorsement/mutation of the award number 55/86-87 fromthe revenue record and they may be further directed to mutate theabove said land in question inthe name ofthe petitioners.

iii. direct the Respondents no.l to 4 by issuing writ of Mandamusnot to proceed further in respect of Award No. 55/86-87 Villageof Samalka passed by the Land Acquisition Collector under theLand Acquisition Act, 1894 in respect of land in questionbelonging to the Petitioners;

iv. Pass any other order/s which this Hon'ble Court may deem justand proper in the facts and circumstances of the case, in theinterest ofjustice and equity;”

2. The background facts are that the land in question as mentioned in the prayer, located in Village Samalka was notified under Section 4 of the Land Acquisition Act (LAA), 1894 on 19[th] February 1979 followed by declaration under Section 6 LAA on 27[th] September 1980. The impugned Award No.55/86-87 was passed on 19[th] September 1986.

3.It is stated by the Petitioners that neither compensation was paid neitherwas possession of the subject land taken. No kabja-karwahi was carried out by the Respondents. The Petitioners state that they are in continuous and actual possession of the land. It is further stated that the entire area has grown to densely populated colony, known as „Samalka Extension‟, and that the Government of NCT of Delhi, in furtherance of its policy to regularise unauthorized colonies has issued Provisional Certificate bearing number F.1-33/UC/UD/2004/Pt.III dated 17[th] September 2008 to „The Samalka Residents Welfare Association‟. It is stated that in the year 2008, the Respondents and civic authorities threatened to demolish the

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houses of the Petitioners, and some of them filed W.P.(C) 4593/2008 challenging the Section 4 and Section 6 LAA notifications as mentioned above. It is seen that the said petition was disposed of by order dated 9[th]February 2009 with the direction to the Respondents that they can complete the process of acquisition but shall not take possession of the land till the question of regularisation was finally decided by them. Thereafter, the petition straightaway refers to the passing of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (the „2013 Act‟).

4. In the counter affidavit filed by the ADM (New Delhi), Office of Deputy Commissioner, it is stated that the said Award No.56/1986-87 was passed in respect of the land in question for the public purpose of „Truck Repair Service cum Shopping Complex‟, after having invited and considered the claims of interested persons. It is submitted that the possession of the subject land had already been taken by the Municipal Corporation of Delhi (MCD) even before the passing of the Award by the LAC. It is submitted by letter dated 17[th] June 1983 addressed to the Commissioner, MCD, the LAC “intimated that the land being subject matter of this petition has already been occupied by MCD for shopping complex and has not been made available to the LAC for demarcation and also requested to inform the date of possession of the said land.” It is stated that return of the possession of large tracts of the lands sought to be acquired under the above said notifications qua the relevant Khasra numbers would ultimately prejudice the public purpose envisaged. It is stated that Section 24(2) of the 2013 Act would not apply as the land in question was already in the possession of the MCD before the

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passing of the Award and is free from all encumbrances whatsoever.

5. short counter affidavit has also been filed on behalf of SDMC. It is stated that for the purposes of the Truck repair/ servicing-cum-Shopping complex at Samalkha village „having provision for 156 big, and 22 small workshop, 2 service stations, 2 petrol pumps, 70 small eating/spare parts shop, and 8 big eating shops‟, proceedings under the LAA were initiated, whereby the DDA, by its letter dated 16[th] June 1976 issued deletion of 30 acres of land from their requirement, in favour of the MCD, subject to change of land use. It is stated that the Award No.56/86-87 was passed for the same purpose and an amount of Rs.12,86,011/- was remitted by the MCD to the L&B Department and the LAC on account of compensation for the subject land.

6. In para 6 of the affidavit of the SDMC, it is stated that landowners instituted various cases against the acquisition of land, in which stay orders were passed, due to which possession could not be handed over to the MCD. In the meantime, the land was encroached by jhuggi dwellers, who also cannot be dispossessed unless they are relocated to another site. list of these petitions has been provided in tabular format in the said para, which were disposed of by order dated 9[th] February 2009, as in W.P.(C) 4593/2008 referred to by the Petitioners.It is further submitted that in view of the aforesaid litigation, the proposed scheme for development of „Transport Nagar‟ was scrapped, and due to the same, the Respondents have had to suffer financial losses.

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7. The narration in the petition itself reveals that the land in question claimed by the Petitioner forms part of an unauthorized colony. The unauthorized colony is known as Samalka Extension and figures at Sl.No.779 in the list of unauthorized colonies awaiting regularization as displayed on the website of the Department of Urban Development, GNCTD.

8. In respect of the lands that form part of unauthorized colony this Court has taken the consistent view that no relief under Section 24(2) of the 2013 Act can be granted. The legal position has been explained by this Court in Mool Chand v. Union of India2019 (173) DRJ 595 (DB) as under:

“48. The third aspect of the case is that the Petitioner admits that the land in question is part of an unauthorised colony. The very basis for seeking regularisation of an unauthorised colony is that it is located on land which belongs either to the public or to some other private parties. The Petitioners would therefore not have the locus standi to seek declaration in terms of Section 24 (2) of the 2013 Act in such cases since the very fact that they have sought regularisation on the basis that they are in unauthorised colony would be an admission that they do not otherwise have any valid right, title or interest in the land in question.

49. This Court has by order dated 19[th] December 2018 in WP(C) No.190/2016 (Harbhagwan Batra v. Govt. of NCT of Delhi) and order dated 8[th] January 2019 in WP(C) No.10201/2015 (Gurmeet Singh Grewal v. Union of India)negatived similar pleas by the Petitioners who were trying to seek similar declaration of lapsing even while admitting that they were pursuing regularisation of an unauthorised colony.

50. In decision dated 10th January 2019 in W.P. (C) 3623 of

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2018 (Akhil Sibal v. Govt. of NCT of Delhi) this Court observed in this context as under:

“18. The Court at this stage may also observe that many of the unauthorized colonies are awaiting regularization orders. large portion of these colonies are by way of encroachment on public land, some of it may be on private land, but in any event, the constructions themselves are unauthorized. The major premise on which such regularization is sought is that these constructions have been erected on public or private land which does not belong to the persons who are under occupation of those structures. That very basis gets contradicted as some of them try to seek declaration about lapsing of the land acquisition proceedings by invoking Section 24 (2) of the 2013 Act. This is contradiction in terms and is legally untenable.”

9. The above decision has been followed and the legal position has been reiterated by this Court in an order dated 25[th] January, 2019 in W.P.(C) No.3438/2015 (Krishna Devi v. Union of India).

10. No rejoinder has been filed to the counter affidavits of the ADM or the SDMC regarding taking over of the possession. In any event, the assertion by the Petitioners that they continued to remain in possession of the land in question or that compensation has not been tendered gives rise to disputed questions of fact. The fact further remains that the Petitioners have no explanation to offer for the inordinate delay in approaching the Court for the relief, with respect to an Award that was passed in 1986.

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11. On the aspect of laches, in Mahavir v. Union of India (2018) 3 SCC 588

the Supreme Court has observed as under:

“23. In the instant case, the claim has been made not onlybelatedly, but neither the petitioners nor their previous threegenerations had ever approached any of the authorities inwriting for claiming compensation. No representation hadever been filed with any authority, none has been annexed andthere is no averment made in the petition that any suchrepresentation had ever been filed. The claim appears not onlystale and dead but extremely clouded. This we are mentioningas additional reasons, as such claims not only suffer fromdelay and laches but courts are not supposed to entertain suchclaims. Besides such claims become doubtful, cannot bereceived for consideration being barred due to delay andlaches.

24. The High Court has rightly observed that such claimscannot be permitted to be raised in the court, and cannot beadjudicated as they are barred. The High Court has rightlyobserved that such claims cannot be subject matter ofinquiry after the lapse of reasonable period of time andbeneficial provisions of Section 24 of the 2013 Act are notavailable to such incumbents. In our opinion, Section 24cannot revive those claims that are dead and stale.”

12. The above observations have been reiterated in the judgment of the three Judge Bench of the Supreme Court in Indore Development Authority v. Shailendra (2018) 3 SCC 412 where it was observed as under:

“128. In our considered opinion section 24 cannot be used to revivethe dead or stale claims and the matters, which have beencontested up to this Court or even in the High Court having lost thecases or where reference has been sought for enhancement of thecompensation. Compensation obtained and still it is urged thatphysical possession has not been taken from them, such claimscannot be entertained under the guise of section 24(2). We havecome across the cases in which findings have been recorded that bywhich ofdrawing Panchnama, possession has been taken, nowagain under Section 24(2) it is asserted again that

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physicalpossession is still with them. Such claims cannot be entertained inview of the previous decisions in which such plea ought to havebeen raised and such decisions would operate as res judicata orconstructive res judicata. As either the plea raised is negatived orsuch plea ought to have been raised or was not raised in theprevious round of litigation. Section 24 of the Act of 2013 does notsupersede or annul the court‟s decision and the provisions cannotbe misused to reassert such claims once over again. OncePanchnama has been drawn and by way of drawing the Panchnamaphysical possession has been taken, the case cannot be reopenedunder the guise of section 24 of Act of 2013.

129. Section 24 is not intended to come to the aid of those who firstdeliberately refuse to accept the compensation, and then indulge inill-advised litigation, and often ill-motivated dilatory tactics, fordecades together. On the contrary, the section is intended to helpthose who have not been offered or paid the compensation despite itbeing the legal obligation of the acquiring body so to do, and/or whohave been illegally deprived of their possession for five years ormore; in both the scenarios, fault/cause not being attributable tothe landowners/claimants.

130. We are of the view that stale or dead claims cannot be thesubject-matter of judicial probing under section 24 of the Act of2013. The provisions of section 24 do not invalidate thosejudgment/orders of the courts where under rights/claims have beenlost/negatived, neither do they revive those rights which have comebarred, either due to inaction or otherwise by operation of law.Fraudulent and stale claims are not at all to be raised under theguise of section 24. Misuse of provisions of section 24(2) cannot bepermitted. Protection by the courts in cases of such blatant misuseof the provisions of law could never have been the intention behindenacting the provisions of section 24 (2) of the 2013 Act; and, by thedecision laid down in Pune Municipal Corporation (supra), and thisCourt never, even for moment, intended that such cases would bereceived or entertained by the courts.”

13. For the aforementioned reasons, the reliefs prayed for in the petition

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cannot be granted. The writ petition is dismissed. The interim order dated 9[th]February 2018 as confirmed on 17[th] April 2018 is hereby vacated. As clarified in Krishna Devi v. Union of India (supra), the dismissal of the present petition will not come in the way of the Petitioners pursuing the claim for regularisation of the unauthorised colony in question.

S.MURALIDHAR, J.

MARCH 19, 2019mw

I.S. MEHTA, J.

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