DELHI DEVELOPMENT AUTHORITY versus RAJAN SOOD & ORS.

[2022] 14 S.C.R.

ADELHI DEVELOPMENT AUTHORITY

RAJAN SOOD & ORS.

(Civil Appeal No. 1927 of 2022)

BMARCH 29, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 – s.24(2) –Land Acquisition Act, 1894 – s.48 – High Court relying on theCdecision in Pune Municipal Corporation case allowed the writ petitionfiled by Respondent No.1 and 2 original writ petitioners and declaredthat the acquisition proceedings initiated under the 1894 Act w.r.tthe subject lands are deemed to have lapsed u/s.24(2) – On appeal,held: The decision in Pune Municipal Corporation case has beenDoverruled by the decision of Constitution bench in IndoreDevelopment Authority case – Further, the High Court while passingthe impugned judgment observed that the possession of the land inquestion continued with the original writ petitioners and that thecompensation was neither paid nor even tendered – However, itwas the specific case on behalf of the authority that the possessionEof the land in question was already taken over on 23.09.1986 andeven the compensation amount of Rs.2.00 crores was deposited withthe land and building department – Considering the decision incase of Indore Development Authority it cannot be said that the landacquisition proceedings are deemed to have lapsed u/sub-section(2)Fof s.24 – Also, at the time when the Act, 2013 came into force therewas stay granted by the High Court vide order dated 09.11.2011in writ petition No.7714/2011 restraining the authority taking anycoercive action in respect of the land in question – Thus, theimpugned judgment passed by the High Court declaring that theland acquisition proceedings are deemed to have lapsed u/sub-Gsection (2) of s.24 of the 2013 Act, is unsustainable and is set aside.

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

DELHI DEVELOPMENT AUTHORITY v.RAJAN SOOD & ORS.

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

Case Law Reference

[2014] 1 SCR 783referred toPara 2 B[2020] 3 SCR 1followedPara 3.4

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1927of 2022.

From the Judgment and Order dated 30.08.2016 of the High Courtof Delhi at New Delhi in WP (C) No. 1034 of 2015.

With

Civil Appeal No. 1928 of 2022

Ms. Pinky Anand, Sr. Adv., Anshay Dhatwalia, Ms. KumudNijhawan, Ashwani Kumar, Ms. Saudamini Sharma, Ms. Asees JasmineKaur, Love Kumar Gupta, Angad Sandhu, Ms. Astha Saxena, Ms. AmitaSingh Kalkal, Ms. Astha Tyagi, Siddharth Raj Agarwal, Ms. RamandeepKaur, Advs. for the appearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 30.08.2016 passed by the High Court of Delhi at NewDelhi in Writ Petition (C) No. 1034/2015, by which the High Court hasallowed the said writ petition preferred by the private respondents herein– original writ petitioners and has declared that the acquisition proceedingsinitiated under the Land Acquisition Act, 1894 (hereinafter referred toas the Act, 1894) in respect of the subject lands are deemed to havelapsed under sub-section (2) of section 24 of the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (hereinafter referred to as the Act, 2013), DelhiDevelopment Authority (DDA) and Government of NCT of Delhi havepreferred the present appeals.

2. Private respondent No.1 and 2 herein - original writ petitionersfiled the writ petition before the High Court for declaration that theacquisition proceedings initiated under the Act, 1894 in respect of the

Asubject lands are deemed to have lapsed under sub-section (2) of section24 of the Act, 2013. It was the case on behalf of the original writpetitioners before the High Court that as the possession of the land inquestion is with them and no compensation has been paid, the landacquisition proceedings are deemed to have lapsed. Heavy reliance wasplaced on the decision of this Court in the case of Pune MunicipalBCorporation and Anr. Vs. Harakchand Misirimal Solanki and Ors,(2014) 3 SCC 183.

2.1 The petition was opposed by the appellants herein and others.It was the specific case on behalf of the DDA that as such thecompensation was tendered to one Shiv Kumar S/o Devi Chand. RelyingCupon the decision of this Court in the case of Pune MunicipalCorporation (supra), the High Court, by the impugned judgment andorder has allowed the said writ petition and has declared that theacquisition proceedings initiated under the Act, 1894 in respect of thesubject lands are deemed to have lapsed under sub-section (2) of sectionD24 of the Act, 2013.

2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, DDA and Government of NCT ofDelhi have preferred the present appeals.

3. Learned counsel appearing on behalf of the DDA has vehementlyEsubmitted that in the facts and circumstances of the case the High Courthas materially erred in declaring that the acquisition proceedings havelapsed under sub-section (2) of section 24 of the Act, 2013.

3.1 It is submitted on behalf of the DDA that in the present caseas such the possession was already taken over by the Authority onF23.09.1986 after following the due procedure as required and even apunchnama was also drawn, which was the requirement while takingover possession.

3.2 It is urged that even the compensation was tendered to therecorded owner - Shri Shiv Kumar through notice under section 12(2) ofGthe Act, 1894 but recorded owner never came forward to accept thesame. It is submitted that therefore, the original writ petitioners cannotbe permitted to take the benefit under sub-section (2) of section 24 ofthe Act, 2013.

3.3 It is further submitted that even the amount of compensationHof Rs.2.00 crores was deposited by the DDA with the Land and Building

Department towards compensation. Therefore, the original writ petitionersare not entitled to the benefit of deemed lapse.

3.4 It is further contended by learned counsel appearing on behalfof the DDA and the Government of NCT of Delhi that as such theoriginal writ petitioners were not having any locus to file the writ petitionas their title to the property is shrouded with fraud and investigation ispending with the Anti-Corruption Branch. It is submitted that as thepossession of the land in question was already taken over as far as backon 23.09.1986 and even compensation of Rs.2.00 crores was depositedwith the Land and Building Department, in view of the subsequent decisionin the case of Indore Development Authority Vs. Manoharlal andOrs., (2020) 8 SCC 129, it cannot be said the acquisition proceedingshave lapsed under sub-section (2) of section 24 of the Act, 2013.

3.5 It is further submitted on behalf of the appellants that whilepassing the impugned judgment and order, the High Court has relied onthe decision of this Court in the case of Pune Municipal Corporation(supra). That, the said decision has been subsequently overruled by theConstitution bench of this Court in the case of Indore DevelopmentAuthority (supra).

3.6 In the alternative, it is submitted by the learned counselappearing on behalf of the respective appellants that assuming, withoutadmitting that the possession of the land in question remain with theoriginal writ petitioners, in that case also, as there was an order of staygranted by the High Court in the year 2011, in the writ petition filed bythe original writ petitioners and the High Court granted the interim orderof taking no coercive action/order qua the land, therefore, in view of thedecision of this Court in the case of Indore Development Authority(supra), the period under which the stay was operative is to be excluded.Reliance is placed on para 366.8 of the decision of this Court in the caseof Indore Development Authority (supra).

3.7 Making the above submission and relying upon the aforesaiddecision, it is prayed to allow the present appeals.

4. Both these appeals are vehemently opposed by Ms. PinkyAnand, learned Senior Advocate appearing on behalf of the original writpetitioners. Counter affidavits have been filed on behalf of privaterespondent No.1 and 2 – original writ petitioners opposing the presentappeals.

A4.1 It is vehemently submitted by Ms. Anand, learned SeniorAdvocate appearing on behalf of the original writ petitioners that assuch there are specific findings recorded by the High Court that theoriginal writ petitioners continue to be in physical possession and therefore,as neither the actual possession of land in question was taken over norany compensation was paid and/or even tendered to the original writBpetitioners. It is rightly held that acquisition proceedings have lapsed.

4.2 It is urged that in fact in the earlier order passed by the HighCourt on 09.11.2011 in writ petition No.7714/2011, the Division Benchdirected the authority to consider their application under section 48 ofthe Act, 1894 and to decide it on merits. That as per section 48 of theCAct, 1894 only in case where possession of the land is not taken overby the acquiring authority, then only, the application under section 48 ofthe Act, 1894 would be maintainable. It is submitted therefore, when theDivision Bench directed the authority to consider the application of thepetitioners under section 48 of the Act, 1894 on merits, it is to be presumedDthat only original writ petitioners continue to remain possession. It iscontended that the authority might have taken ex-parte possession onpaper as alleged on 23.09.1986, however, the original writ petitionersremained in possession actually. It is further submitted by learned SeniorAdvocate appearing on behalf of the original writ petitioners that thereis also specific finding recorded by the High Court that the authoritiesEhave failed to prove that any amount of compensation was paid and/ortendered to the original writ petitioners or even deposited with the treasury.It is submitted that when the original writ petitioners remain in possessionand neither the compensation was tendered nor it was paid, the twinconditions to declare the acquisition proceedings as having lapsed underFsub-section (2) of section 24 of the Act, 2013 have been satisfied. It istherefore submitted that the High Court has not committed any error indeclaring that the acquisition proceedings in respect of the subject landsare deemed to have lapsed under sub-section (2) of section 24 of theAct, 2013G5. We have heard learned counsel appearing on behalf of therespective parties at length.6. By the impugned judgment and order the High Court has heldand declared that the land acquisition proceedings in respect of the landin question are deemed to have lapsed under sub-section (2) of sectionH24 of the Act, 2013. While holding and declaring so the High Court has

relied upon decision of this Court in the case of Pune MunicipalCorporation (supra). However, the said decision of this Court has beensubsequently overruled by the decision of this Court in the case of IndoreDevelopment Authority (supra). In paragraph 365 to 366, this Courtin the case of Indore Development Authority (supra) has observedand held as under: -

“365. Resultantly, the decision rendered in Pune MunicipalCorpn. [Pune Municipal Corpn. v. Harakchand MisirimalSolanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] is herebyoverruled and all other decisions in which Pune MunicipalCorpn. [Pune Municipal Corpn. v. Harakchand MisirimalSolanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] has beenfollowed, are also overruled. The decision in Sree Balaji NagarResidential Assn. [Sree Balaji Nagar Residential Assn. v. Stateof T.N., (2015) 3 SCC 353 : (2015) 2 SCC (Civ) 298] cannot besaid to be laying down good law, is overruled and other decisionsfollowing the same are also overruled. In Indore DevelopmentAuthority v. Shailendra [Indore Development Authority v.Shailendra, (2018) 3 SCC 412 : (2018) 2 SCC (Civ) 426], theaspect 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, in thelight of the discussion in the present judgment.

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

366.1. Under the provisions of Section 24(1)(a) in case the awardis not made as on 1-1-2014, the date of commencement of the2013 Act, there is no lapse of proceedings. Compensation has tobe determined under the provisions of the 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 as if ithas not been repealed.

366.3. The word “or” used in Section 24(2) between possessionand compensation has to be read as “nor” or as “and”. The deemedlapse of land acquisition proceedings under Section 24(2) of the

2013 Act takes place where due to inaction of authorities for fiveyears or more prior to commencement of the said Act, thepossession of land has not been taken nor compensation has beenpaid. In other words, in case possession has been taken,compensation has not been paid then there is no lapse. Similarly,if compensation has been paid, possession has not been takenthen there is no lapse.

366.4. The expression “paid” in the main part of Section 24(2) ofthe 2013 Act does not include deposit of compensation in court.The consequence of non-deposit is provided in the proviso toSection 24(2) in case it has not been deposited with respect tomajority of landholdings then all beneficiaries (landowners) as onthe date of notification for land acquisition under Section 4 of the1894 Act shall be entitled to compensation in accordance with theprovisions of the 2013 Act. In case the obligation under Section31 of the Land Acquisition Act, 1894 has not been fulfilled, interestunder Section 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 tothe majority of holdings for five years or more, compensation underthe 2013 Act has to be paid to the “landowners” as on the date ofnotification for land acquisition under Section 4 of the 1894 Act.366.5. In case person has been tendered the compensation asprovided under Section 31(1) of the 1894 Act, it is not open to himto claim that acquisition has lapsed under Section 24(2) due tonon-payment or non-deposit of compensation in court. Theobligation to pay is complete by tendering the amount under Section31(1). The landowners who had refused to accept compensationor who sought reference for higher compensation, cannot claimthat the acquisition proceedings had lapsed under Section 24(2)of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to be treatedas part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and ascontemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possessionunder Section 16 of the 1894 Act, the land vests in State there is

no divesting provided under Section 24(2) of the 2013 Act, asonce possession has been taken there is no lapse under Section24(2).

366.8. The provisions of Section 24(2) providing for deemedlapse of proceedings are applicable in case authorities have faileddue to their inaction to take possession and pay compensation forfive years or more before the 2013 Act came into force, in aproceeding for land acquisition pending with the authority concernedas on 1-1-2014. The period of subsistence of interim orders passedby court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to newcause of action to question the legality of concluded proceedingsof land acquisition. Section 24 applies to proceeding pending onthe date of enforcement of the 2013 Act i.e. 1-1-2014. It does notrevive stale and time-barred claims and does not reopen concludedproceedings nor allow landowners to question the legality of modeof taking possession to reopen proceedings or mode of deposit ofcompensation in the treasury instead of court to invalidateacquisition.”

7. The High Court while passing the impugned judgment and orderhas observed that the possession of the land in question continued withthe original writ petitioners and that the compensation was neither paidnor even tendered to the original writ petitioners. However, by holdingthat the original writ petitioners have continued to remain in possession,the High Court has relied upon the earlier order dated 09.11.2011 passedin writ petition No.7714/2011, by which the High Court directed theauthority to consider their application under section 48 of the Act, 1894on merits. However, it was the specific case on behalf of the authoritybefore the learned Single Judge that the possession of the land in questionwas already taken over on 23.09.1986 and even the compensation amountof Rs.2.00 crores was deposited with the land and building department.

7.1 It is the case on behalf of the original writ petitioners that apurported letter dated 23.09.1986 allegedly taking symbolic possessionwas never disclosed by appellants in the proceedings conducted beforethe High Court on two separate occasions and the same has been filedfor the first time in the present proceedings. The aforesaid is not correct.Even in the impugned order itself in paragraph 2, the High Court has

Anoted the submissions on behalf of the appellants to the effect that thepossession was taken over on 23.09.1986. Therefore, it cannot be saidsuch plea is taken for the first time before this Court. It is the case onbehalf of the original writ petitioners, relying upon the earlier order passedby the High Court dated 09.11.2011 in writ petition No.7714/2011 that,the original writ petitioners continue to be in possession and the actualBpossession has never been taken over. However, it is required to benoted that even in the order dated 09.11.2011, there was no specificfinding given by the High Court that the original writ petitioners are inpossession of the land in question. On the contrary, it is observed thatthe authority to consider the application under section 48 of the Act,C1894 on merits on the assumption of the possession being with the originalwrit petitioners. Therefore, while passing the order dated 09.11.2011also, the High Court assumed the original writ petitioners are in possessionhence as such no specific finding was given to the effect that the originalwrit petitioners are in possession.D7.2 It is next contented on behalf of the original writ petitionersthat the alleged possession on 23.09.1986 is illegal and it was paperpossession. However, it is submitted on behalf of the appellants thatpossession of land in question was taken over by drawing the punchnamawhich can be said to be sufficient compliance of the requirement whiletaking possession. The High Court has also doubted the compensationEbeing tendered as contended on behalf of the appellant.

7.3 Be that as it may. Assuming for the sake of argument that theoriginal writ petitioners are found to be in possession and the compensationwas not tendered, in that case also as can be seen from the order passedby the High Court on 09.11.2011 in writ petition No.7714/2011, theFauthority was restrained from taking any coercive action in respect ofthe land in question. Therefore, in view of the subsequent decision ofthis Court in the case of Indore Development Authority (supra -paragraph 366.8), the period, during which the interim order is/wasoperative, has to be excluded in the computation of five years’ period. InGthe present case even, it is the contention on behalf of the original writpetitioners that the order of no coercive action was directed to becontinued till the application under section 48 of the Act, 1894 was decided.It is the specific case on behalf of the original writ petitioners before thisCourt and even so stated in the written submissions that till date nodecision is taken on the application under section 48 of the Act, 1894.H

Meaning thereby the direction/stay granted by the High Court whilepassing the order dated 09.11.2011 in writ petition No.7714/2011continued when the Act, 2013 came into force.

7.4 In that view of the matter and considering the decision of thisCourt in case of Indore Development Authority (supra), it cannot besaid that the land acquisition proceedings are deemed to have lapsedunder sub-section (2) of section 24 of the Act, 2013.

8. Applying the law laid down by this Court in the case of IndoreDevelopment Authority (supra), more particularly, paragraph 366, itcannot be said that the land acquisition proceedings are deemed to havelapsed.

9. In view of the above and for the reasons stated above and onthe aforesaid ground alone that at the time when the Act, 2013 cameinto force there was stay granted by the High Court vide order dated09.11.2011 in writ petition No.7714/2011 restraining the authority takingany coercive action in respect of the land in question, the impugnedjudgment and order passed by the High Court declaring that the landacquisition proceedings are deemed to have lapsed under sub-section(2) of section 24 of the Act, 2013, is unsustainable.

10. In view of the above and for the reasons stated above, thepresent appeals are allowed. The impugned judgment and order passedby the High Court in Writ Petition (C) No.1043/2015 declaring that theland acquisition proceedings under the Act, 1894 with respect to the landin question are deemed to have lapsed under sub-section (2) of section24 of the Act, 2013, is hereby quashed and set aside. The present appealsare allowed to the aforesaid extent, accordingly. There shall be no orderas to costs.

Divya Pandey(Assisted by : Neha Sharma, LCRA)

Appeals allowed.