Land and Building Department Thr. Secretary & Anr v. Attro Devi & Ors.

LAND AND BUILDING DEPARTMENT THR. SECRETARY & ANR. v. ATTRO DEVI & ORS. (Civil Appeal No. 2749 of 2023) APRIL 11, 2023 [ABHAY S. OKA AND RAJESH BINDAL, JJ.] Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – s. 24( 2) – Notification u/s 4 was issued on 23.06.1989 – Another notificat ion u/s 6 was issued on 20.06.1990 – Award announced on 19.06.1992 – Respondents filed a writ petition in the High Court claimi ng that neither possession was taken over nor compensation was paid thus the acquisition had lapsed u/s 24(2) – The appellant’s stand be fore the High Court was that the possession of the land was taken on

06.12.2012 but compensation could not be paid to th e recorded land owners as they never claimed the same – High court rel ied on the case of Pune Municipal Corporation’s for interpretation of s.24(2) as per which possession as well as payment must be complet e, within five years and since compensation has not been paid the acquis ition in question has lapsed – On appeal, held: Pune Muni cipal Corporation case had been overruled by Indore Development Authority’s caseas per which compliance of either of the two conditions i.e. taking over of possession of the land or payment of compensation, is good enough to sustain the acquisit ion – In the case at hand, the possession of the land was taken over by the Land Acquisition Collector and handed over to Delhi Development Authority, hence, one of the conditions being satisfied thus there is no deemed lapse and the acquisition is sustained – Judgment of High Court unsustainable – Accordingly, set aside. Disposing the appeal, the Court HELD: 1. The Constitution Bench of this Court in Indor e Development Authority’s case had opined that satisf action of either of the conditions namely either taking possess ion of the acquired land or payment of compensation to the landowners would be sufficient to save the acquisition from being lapsed in terms of Section 24(2) of the 2013 Act. [Para 11][377-F-G]

¶2It is a fact to be noticed and taken care of tha t large chunk of land is acquired for planned development to take c are of immediate need and also keep buffer for future requi rements. Such portion of land may be lying vacant also. As h as been observed in Indore Development Authority’s case by this court, the State agencies are not supposed to put police force to protect possession of the land taken after process of acqui sition is complete. As far as the case in hand is concerned, the land even if lying vacant, is required now for a project of national importance. [Para 13][382-B-D]

¶3It is the undisputed fact on the record, as has been noticed in the impugned order passed by the High Court, the pos session of the land was taken over by the Land Acquisition Collect or and handed over to Delhi Development Authority. Report of possession proceedings dated 06.12.2012 has also be en placed on record. Hence, one of the conditions being satisfied, no need to examine any other argument. [Para 14][382-E] Indore Development Authority v. Manoharlal and Others

(2020) 8 SCC 129 : [2020] 3 SCR 1 – followed. Pune Municipal Corporation & Anr. v. Misirimal Solanki & Ors. (2014) 3 SCC 183 : [2014] 1 SCR 783 – referred to. Case Law Reference [2020] 3 SCR 1 followed Para 7 [2014] 1 SCR 783 referred to Para 7 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2749 of 2023. From the Judgment and Order dated 20.12.2017 of the High Court of Delhi at New Delhi in WP (C) No. 10075 of 2015. Atul Kumar, Ms. Sweety Singh, Ms. Archana Kumari, Rahul Pandey, Rajiv Ranjan, Advs. for the Appellants. Sanjay Poddar, Sr. Adv., Rakesh Kumar -I, Narendra Kumar, Sataroop Das, Ms. Deepali Aggarwal, Ms. Manika Tripathy, Ashutosh Kaushik, Sumit Gupta, Prateek Madnani, Govind, Rahul Shyam Bhandari, Advs. for the Respondents. LAND AND BUILDING DEPARTMENT THR. SECRETARY v. ATTRO DEVI & ORS. The Judgment of the Court was delivered by

RAJESH BINDAL, J.

¶1Delay condoned.

¶2Leave granted.

¶3The appellants have challenged the order dated 20.12.2017 passed by the High Court of Delhi. Vide aforesaid order, writ pet ition filed by the respondents was allowed holding that in view of Sec tion 24(2) of the Right to Fair Compensation and Transparency i n Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “the 2013 Act”), the acquisition in respect to the land in dispute, has lapsed.

¶4From the facts of the case as are available on record, it is evident that vide notification dated 23.06.1989 issued under Section 4 of the Land Acquisition Act, 1894 large chunk of the land including the land of petitioner comprised in Khasra No.1 Etc/57/1 and Khasra No.1 Etc/ 58/1, situated in revenue estate of village Ghonda, Chauhan Khadar , New Delhi was sought to be acquired for planned development of Delhi. It was followed by the notification issued under Se ction 6 dated

20.06.1990. The Award was announced on 19.06.1992.

¶5A writ petition was filed in the High Court invoking Sect ion 24(2) of the 2013 Act claiming that the acquisition in question has lapsed as neither possession has been taken nor the compensation therefor has been paid. The appellant’s stand before the High Court was that the possession of the land was taken on 06.12.2012 and handed over to the DDA on the spot. The compensation could not be paid to the recorded land owners as they never came forward to claim the same .

¶6The High Court relying upon the judgment of this Court in Pune Municipal Corporation & Anr. v. Misirimal Solanki & Ors. (2014) 3 SCC 183 held that since the compensation was not paid to th e landowners, i.e., the respondents herein, the acquisition in question has lapsed.

¶7The arguments raised by learned counsel appearing for the appellants are that in view of the Constitution Bench judgment o f this Court in Indore Development Authority v. Manoharlal and Others

(2020) 8 SCC 129 whereby earlier judgment of this Court in Pune Municipal Corporation & Anr.’s case (supra) was overruled, the order passed by the High Court is liable to be set aside. It was opined by the Constitution Bench that compliance of either of the two conditions i.e. taking over of possession of the land or payment of compensat ion, is good enough to sustain the acquisition. From the undisputed facts available on record it is evident that in the present case, the possession of land in dispute was taken after the acquisition was complete.

¶8Additionally, an important fact brought to our attention is that the subject land is required by NHAI for construction of the Delhi-Saharanpur-Dehradun Highway starting from Akshardham Junction to Delhi/UP Border, in the State of Delhi in Phase-I o f Bharatmala Pariyojana. Even the contractors have been appointed to execute t he project, which may be delayed due to pendency of the pre sent appeal. The subject land is therefore a part of the project which is of national importance.

¶9On the other hand, the arguments raised by learned counsel for the respondents are that the writ petition having been deci ded on the basis of law as existing on the date of decision by the High Court cannot be set aside on the basis of the subsequent judgment of this Court. The High Court had held that compensation having not been paid, as per the interpretation of Section 24(2) of the 2013 Act by this Court i n Pune Municipal Corporation’s case (supra), the acquisition proceedings lapsed. It is a matter of fact which has been noticed in the order passed by the High Court that the possession of the land had already been taken by the authority concerned.

¶10Heard learned counsel appearing for the parties and perused the records.

¶11The Constitution Bench of this Court in Indore Development Authority’s case (supra) had opined that satisfaction of either of the conditions namely either taking possession of the acquired land or payment of compensation to the landowners would be sufficient to sa ve the acquisition from being lapsed in terms of Section 24(2) of the 2013 Act. Various questions posed before the Constitution Bench of this Cou rt were also answered. Relevant para-Nos. 362 and 366 are ex tracted below: “362. Resultantly, the decision rendered in Pune Mun icipal Corporation & Anr. (supra) is hereby overruled and all other decisions in which Pune Municipal Corporation (supra) has been followed, are also overruled. … ... LAND AND BUILDING DEPARTMENT THR. SECRETARY v.

¶366In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in ca se the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisi ons of the 2013 Act.

366.2. In case the award has been passed within the window period of five years excluding the period covered by an int erim order of the court, then proceedings shall continue as prov ided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceed ings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prio r to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compens ation has been paid, possession has not been taken then t here is no lapse. (emphasis supplied)

366.4. The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compen sation in court. The consequence of non-deposit is provided i n the proviso to Section 24(2) in case it has not been de posited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for lan d acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, intere st under Section 34 of the said Act can be granted. Non-depo sit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with res pect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to t he “landowners” as on the date of notification for lan d acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Secti on 24(2) due to non-payment or non-deposit of compensa tion in court. The obligation to pay is complete by tenderin g the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for h igher compensation, cannot claim that the acquisition proce edings 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 treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawi ng of inquest report/memorandum. Once award has been pass ed on taking possession under Section 16 of the 1894 Act , the land vests in State there is no divesting provided under Sect ion 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authoritie s have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has t o be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of con cluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and tim e-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taki ng LAND AND BUILDING DEPARTMENT THR. SECRETARY v. possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to in validate acquisition.”

¶12The issue as to what is meant by “possession of the l and by the State after its acquisition” has also been considered by Constitution Bench of Hon’ble Supreme Court in Indore Development Authority’s case (supra). It is opined therein that after the acqui sition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some pe rson or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start res iding or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extrac ted below: “244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passi ng of an award and thereupon land vest free from all encumbrances in the State Government. Similar are t he provisions made in the case of urgency in Section 17(1). The word “possession” has been used in the Act of 1894, wherea s in Section 24(2) of Act of 2013, the expression “ph ysical possession” is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has ac quired the land and award has been passed, land vests in the S tate Government free from all encumbrances. The act of v esting of the land in the State is with possession, any person reta ining the possession, thereafter, has to be treated as trespa sser and has no right to possess the land which vests in the State f ree from all encumbrances .

¶245The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression “physical possession” used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894 , by taking the possession meant only physical possess ion of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Governm ent is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been ac quired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining posse ssion thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is d eemed to be the trespasser on land which in possession of the State . The possession of trespasser always inures for the ben efit of the real owner that is the State Government in the case. xxxx

¶256Thus, it is apparent that vesting is with possessi on and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute ves ting occurred. It is an indefeasible right and vesting i s with possession thereafter. The vesting specified under Secti on 16, takes place after various steps, such as, notificat ion under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free fr om all encumbrances has to be accorded full effect. Not on ly the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the lando wner LAND AND BUILDING DEPARTMENT THR. SECRETARY v. over the property. He cannot have any animus to tak e the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after pos session has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and o n behalf of the owner .” (emphasis supplied)

¶13It is also a fact to be noticed and taken care of that l arge chunk of land is acquired for planned development to take care of immediate need and also keep buffer for future requirements. Such portion of land may be lying vacant also. As has been observed in Indore Development Authority’s case(supra) by this Court, the State agencies are not supposed to put police force to protect possession of the land taken after process of acquisition is complete. As far as the case in hand is concerned, the land even if was lying vacant, is required now for a project of national importance for construction of the Delhi-Saharanpur-Dehradun Highway starting from Akshardham Junction to Delhi/UP Border, in the State of Delhi in Phase-I of Bharatmala Pariyojana.

¶14It is the undisputed fact on the record, as has been noticed in the impugned order passed by the High Court, the possession of the land was taken over by the Land Acquisition Collector and handed over t o Delhi Development Authority. Report of possession proceedings dated

06.12.2012 has also been placed on record. Hence, one of the conditions being satisfied, we need not examine any other argument.

¶15Keeping in view the aforesaid fact and the law laid down by the Constitution Bench of this Court in Indore Development Authority’s case (supra), in our opinion the order passed by the High Court cannot be legally sustained and the same is accordingly set aside. However, the respondents shall be entitled to receive compensatio n as per their entitlement. The Land Acquisition Officer should also take steps to pay the same to the rightful owner.

¶16The appeal is disposed of accordingly. Ankit Gyan Appeal disposed of. (Assisted by : Shraddha Singh and Aarsh Choudhary, LCRAs)