W.P.(C)/9108/2016 of SURENDER KUMAR TANWAR & ANR Vs GOVERNMENT OF NCT OF DELHI & ORS

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI42 + W.P.(C) 9108/2016& CM APPL.36877/2016

SURENDER KUMAR TANWAR & ANR.

..... Petitioners Through: Mr Mahipal Singh Rajput, Advocate.

versus

GOVERNMENT OF NCT OF DELHI & ORS.

..... Respondents Through: Mr Sanjay Kumar Pathak, Mr K Kaomudi Kiran Pathak, Mr Sunil Kumar Jha and Mr MS Akhtar, Advocates for LAC/L&B/GNCTD. Mr Pawan Mathur, Standing counsel for DDA. Kaomudi Kiran Pathak, Mr Sunil Kumar Jha and Mr MS Akhtar, Advocates for LAC/L&B/GNCTD. Mr Pawan Mathur, Standing counsel for DDA.

Mr RV Sinha, Mr AS Singh and Mr Amit Sinha, Advocates for R-4/DMRC along with Ms Somya Suman, Asst. Legal Manager (DMRC).

CORAM:

JUSTICE S.MURALIDHAR JUSTICE SANJEEV NARULA

O R R% 29.01.2019

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

“(a) Declaring the acquisition proceedings initiated in respect of falling in Khasra No.1855/1784 in Village Naraina, New Delhi has deemed to have lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 and that the petitioners are joint owners of the said land. of falling in Khasra No.1855/1784 in Village Naraina, New Delhi has deemed to have lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acqusition, Rehabilitation and Resettlement Act, 2013 and that the petitioners are joint owners of the said land.

(b) directing the respondents including the respondent No.4 to remove their boards, articles/material themselves from the aforesaid land of the petitioners falling in Khasra No.1855/1784 falling in Village Naraina, New Delhi. to remove their boards, articles/material themselves from the aforesaid land of the petitioners falling in Khasra No.1855/1784 falling in Village Naraina, New Delhi.

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(c) Restraining the respondents from carrying any development/construction work in the aforesaid land of the petitioners falling in Khasra No.1855/1784 falling in Village Naraina, New Delhi or any part of it and also restraining the respondents from selling, alienating or otherwise transferring the aforesaid entire land falling in Khasra No.1855/1784 in Village Naraina, New Delhi to any third party; development/construction work in the aforesaid land of the petitioners falling in Khasra No.1855/1784 falling in Village Naraina, New Delhi or any part of it and also restraining the respondents from selling, alienating or otherwise transferring the aforesaid entire land falling in Khasra No.1855/1784 in Village Naraina, New Delhi to any third party;

Any other relief which this Hon‟ble Court may deem fit and proper in the circumstances of the case may also be granted in favour of the petitioners.”

2. According to the narration in the petition, it is seen that notification under Section 4 of the Land Acquisition Act, 1984 („LAA‟) was issued on 13[th]November 1959 followed by declaration under Section 6 of LAA on 5[th]September 1963. The impugned Award No.1953 was passed way back on 10[th]January 1967. It is stated that the Petitioners filed Civil Writ Petition No.2043/2001, in which they showed papers claiming possession proceedings on 31[st] January 2000, which was subsequently dismissed. There is no attempt made in the writ petition to explain the inordinate delay in approaching the Court for the reliefs in terms of Section 24 (3) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 („the 2013 Act‟). According the Petitioners, since possession was not taken and the compensation amount was not paid, there was no occasion for the Petitioners to seek any relief till the passing of the 2013 Act.3. In the counter-affidavit filed by the LAC, it is stated that as per the possession proceeding report, possession of Khasra No.1855/1784 was taken on 31[st] January 2000, as at the time of the actual possession proceedings i.e 24[th] January 1973, there was MCD store at the spot which was only demolished on 12[th] November 1999.

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4. In the counter-affidavit filed by the DDA, it is submitted that the Petitioners have no locus to file the petition as they are not the recorded owners of the land and are not in possession as claimed by them. It is submitted that physical possession of the acquired land was handed over to the DDA by the LAC/L&B on 31[st] January 2000 and that the land vests with the DMRC as there is Metro work ongoing there. copy of the possession proceedings has been enclosed alongwith. It is also stated that compensation for the land was paid to the L&B Department through the revolving fund after the Award was announced.

5. In short affidavit filed by the DMRC, the above stand of the DDA has been affirmed. It is submitted that “the DDA vide letter dated 20.02.2013 (AnnexureR-4/1) granted working permission to the DMRC of the land measuring 1534 sqm on permanent basis and 7166.05 sqm on temporary basis at Naraina for DMRC Project Phase-III.”

6. In the rejoinder to the counter-affidavit filed by the LAC, the Petitioners have asserted that they continue to remain in possession of the said land and have never been deprived of its possession. It is reiterated that the compensation has not been paid and the submissions made by the Respondents have been disputed and denied.

7. In any event, the assertion by the Petitioners that they continued to remain in possession of the land in question gives rise to disputed question of facts. The fact remains that the Petitioners have no explanation to offer for the inordinate delay in approaching the Court for the relief.

8. 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

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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 such

claims. 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.”

9. The above observations have been reiterated in the judgment of the three Judge Bench 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 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

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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.”

10. The above observations have been followed by this Court in several orders including the order dated 10[th] December, 2018 in WP(C) No. 2734/2015 (Devender Singh v. The Hon’ble Lt. Governor) and similar petitions have been dismissed on the ground of laches.

11. Clearly, the Petitioners‟ case is covered by the above decisions of the Supreme Court.The present petition is dismissed both on the ground of laches

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as well as on merits. The application is disposed of.

S.MURALIDHAR, J.

JANUARY 29, 2019 tr

SANJEEV NARULA, J.

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