Delhi High Court - Orders
Raj Singh & Ors vs Union Of India & Ors on 25 January, 2019
Author: Sanjeev Narula
Bench: S.Muralidhar, Sanjeev Narula
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2199/2017
RAJ SINGH & ORS ..... Petitioners
Through: Mr.Chatanya Siddharth, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms.Nazia Parveen, Advocate for
Mr.Sanjeev Sagar, Standing Counsel for
DDA.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE SANJEEV NARULA
ORDER
% 25.01.2019 SANJEEV NARULA, J.:
1. The prayer in this writ petition reads as under:
"(a) Issue an appropriate direction/order/or writ including a writ of mandamus declaring the land acquisition process initiated under the Land Acquisition Act, 1894 for the land in question measuring 28 bigha 12 biswa bearing in Khasra Nos. 7//12/2 min (0-3), 7//13/2min (2-0), 7//14/1/2min (0-12) and 41//1 (2-3), 42//5 (4-16), 42//6 (2-16), 42//7 (4-16), 42//14 (4-17), 44//4 (4-
12), 44//5 (4-12) of revenue estate of village Mohamadpur Majri Post Office-Karala, Delhi-110081 as having been lapsed by virtue of the provisions of Section 24(2) of The Right to Fair Compensating and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(b) Issue further a Writ of certiorari or any other Writ of like nature thereof, declaring the impugned award No. 20/2005- 2006/DC (NW) dated 18.11.2005, Notification under Section 4 of land Acquisition Act, 1894 dated 21.03.2003 and Declaration WP(C) No.2199/2017 Page 1 of 11 under Section 6 of Land Acquisition Act, 1894 dated 19.03.2004 qua the land in question of the petitioners falling in revenue estate of village Mohamadpur Majri, Delhi-110081 as null and void in the eyes of law inasmuch as land acquisition process qua the land in question is deemed to have lapsed in view of provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
(c) Issue a prohibition directing the Respondents not to interfere with the peaceful enjoyment and possession of the petitioners in any manner whatsoever of the land in question and restraining/prohibiting the respondents from taking possession of the lands which are still in physical possession and enjoyment of the petitioners situated in village- Mohamadpur Majri, North- West, Delhi in pursuance of the issuance of the impugned notifications and award; and
(d) Pass such further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. "
2. The case of the Petitioners is in respect of two portions of land. In respect of khasra numbers 41//1 (2-3), 42//5 (4-16), 42//6 (2-16), 42//7 (4-16), 42//14 (4-17), 44//4 (4-12), 44//5 (4-12) (hereinafter referred to as "Part A land") the Petitioners claim that compensation has been received, but physical possession of the land has not been taken. Further it is averred that w.r.t khasra numbers 7//12/2min (0-3), 7//13/2min (2-0), 7//14/1/2min (0-
12) (hereinafter referred to as "Part B land") neither compensation has been paid nor physical possession of the land has been taken.
3. It is not disputed by the Petitioners that a notification dated 21st March 2003 was issued under section 4 of the Land Acquisition Act, 1894 (hereinafter "LAA"). A declaration dated 19th March 2004 under Section 6 WP(C) No.2199/2017 Page 2 of 11 of the LAA for public purpose namely Rohini Residential Scheme, in respect of a large portion of land which includes both Part A and Part B land. The Award No. 20/2005-2006/DC(NW) was passed on 18th November 2005.
4. The Petitioners admit the receipt of compensation in respect of the acquisition, however, it is alleged that the Petitioners are still in physical possession of the Part A land. It is noted that some of the landowners of village Mohamadpur Majri had filed W.P. No. 1545 of 2014 (Dharam Singh v. Union of India), challenging the aforementioned land acquisition proceeding. This Hon'ble Court vide order dated 10th March 2014, dismissed the petition on the ground of delay and laches, which reads as under:
"W.P.(C) No.1545/2014 and CM No.3231/2014 This writ petition is concerned with the same Notification under Section 4 of the Land Acquisition Act, 1894 and subsequent Notification under Section 6 in respect of Village? Mohammadpur Majri, Delhi, which was the subject matter of W.P.(C) No.2501/2013 entitled Naresh Kumar and Ors. Vs. Union of India and Ors. as also W.P.(C) No.958/2014 entitled Rajendra Singh and Ors. Vs. Union of India and Ors. Those writ petitions were dismissed by the Division Bench of this Court on the ground of delay and laches by separate orders dated 17.04.2013 and 10.02.2014.
For the same reason, this writ petition is also dismissed. It is ordered accordingly. The pending applications are disposed off."
5. The aforesaid order was challenged before the Supreme Court in SLP (C) WP(C) No.2199/2017 Page 3 of 11 No. 13358/2014 which was dismissed as withdrawn. Thereafter the present Petitioners filed another writ petition being W.P. (C) No. 4712 of 2015 (Dharam Singh v. UoI) which was dismissed as withdrawn, vide order dated 22nd November 2016, which reads as under:
"The learned counsel for the petitioners submits that he may be permitted to withdraw this writ petition with liberty that the petitioners may file individual petitions.
The writ petition is dismissed as withdrawn with the aforesaid liberty."
6. In view of the leave granted the Petitioners have now approached this court by way of the present petitions. The Petitioners rely upon an order passed by this Court in W.P.(C) 7749/2015 (Unique Wood Product & Ors. Vs. Union of India & Ors.) wherein a Coordinate Bench of this Court has passed an order dated 9th February 2016 declaring the lapsing of land acquisition proceedings in respect of Khasra No.7//12/2 min (0-04), 7//13/2 min (1-00) and 7//14/1/2 min (0-04) measuring in total 1 bigha 8 biswas, in village Mohammed Pur Majri.
7. It is noticed that the khasra No. 7//12/2 min (0-04), 7//13/2 min (1-00) and 7//14/1/2 min (0-04) for which there is already a lapsing order and the khasra numbers mentioned in Part B are the same, however the area mentioned in Part B land against the said khasra numbers is different. The Petitioners seek similar relief on the strength of the aforesaid order. The Petitioners have however not filed any title documents along with the petition. It is therefore not clear as to on what basis the Petitioners claim a right to have a declaration issued under Section 24 (2) of the 2013 Act in respect of the Part WP(C) No.2199/2017 Page 4 of 11 B land. Be that as it may, there are several other factors which come in the way of the Petitioners to seek the reliefs as sought in the present petition, which are discussed in the succeeding paragraphs.
8. The Land Acquisition Collector (LAC) in its counter affidavit has disputed the Petitioners possession of the Part A land. It is stated that the possession was duly taken on 2nd August 2006 and was handed over to the beneficiary department i.e. DDA. A preliminary objection has been raised by the LAC that the petition is liable to be dismissed on account of delay and laches. As regards payment of compensation, it is stated that compensation stands paid. Relevant extract of para 5 of the counter affidavit has been reproduced as under:
"That the present writ petition is liable to be dismissed on the ground of delay and latches as the actual vacant physical possession of the subject land was duly taken on the spot on 2.8.06 by preparing possession proceeding on the spot and was handed over to the DDA on the spot. It is submitted that having taken the possession on the spot, the said land vests with Government absolutely without any encumbrances uls 16 of Land Acquisition Act, 1894 and the acquisition proceedings became complete in all manner and the petitioners applied for compensation, which was duly paid to them vide cheque number 847423 - 847425 dated 5.7.07 amounting to Rs. 19,73,2301- each. The petitioners were also paid compensation vide cheque number 847426-27 dated 5.7.07 amounting to Rs. 78,92,9211- each. The petitioners were also paid balance compensation vide cheque number 341753 -- 55 dated 8.12.09 amounting to Rs. 6,57,743/- each. It is however pertinent to mention here that the possession of land falling in. khasra number 7//12/2 min (0-03), 71113/2 min (2-
0) and 71114/1/2 min (0-12) could not be taken possession nor the compensation for the same could be paid to the recorded owners.
The copies of application, vouncher are annexed herewith as WP(C) No.2199/2017 Page 5 of 11 Annexure R-l(colly)."
9. In respect of Part B land, the LAC in its counter affidavit stated that although for khasra number 7//12/2 min (0-03), 7//12/2 min (2-0), and 7//14/1/2 min (0-12) possession could not be taken and compensation for the same could not be paid to the recorded owners.
10. It respect of the Part A land, the Petitioners submit that they continue to be in possession of the land and that the possession proceedings conducted were a farce and mere exercise on papers. Though the Petitioners do not dispute receiving compensation for the Part A land, it is urged that as long as possession of the plot remained with the Petitioners, it would not matter if they had received compensation since one of the conditions specified under Section 24 (2) of the 2013 Act stood fulfilled and this was sufficient for a declaration that the land acquisition proceedings were deemed to have lapsed. Reliance was placed on the decision of Pune Municipal Corporation v. Harakchand Misrimal Solanki reported at (2014) 3 SCC 183, Prahlad Singh v. Union of India reported at (2011) 5 SCC 386.
11. The Supreme Court in Executive Engineer Jal Nigam Central Stores Division U.P. v. Suresh Nand Juyal (1997) 9 SCC 224 considered what could be termed as "symbolic possession" and held as under:
"Suffice it is to so say that after symbolic possession is taken, if the petitioner is enjoying the possession, he is enjoying the possession as a trustee on behalf of the public at large and that by itself cannot be considered to be a around to contend that possession is not taken. It is the duty of the person who is occupying the property to look after the property and to see that WP(C) No.2199/2017 Page 6 of 11 the property is not defaced or devalued by himself or by others. He cannot subsequently come to the Court to say that actual possession is not taken and therefore he should be protected and land be denotified."
12. At the outset, the Court would like to observe that in Pune Municipal Corporation (supra), there was no observation to the effect that the retention of possession notwithstanding the acceptance of full compensation would per se attract provisions of Section 24 (2) of the 2013 Act. Further, the Court finds that in DDA v. Sukhbir Singh AIR 2016 SC 4275, the Supreme Court referred to an earlier decision in Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792, where the legal position was explained as under:
"(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring /designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses WP(C) No.2199/2017 Page 7 of 11 and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
13. Once the compensation has been admittedly received in full the only inference that could be is that the Petitioners have again trespassed into the land after surrendering it, as is noticed in Suresh Nand Juyal (supra). Consequently, none of the conditionalities attached to Section 24 (2) of the 2013 Act is fulfilled in the present case.
14. A further factor why the petition is liable to be dismissed is that although the Award was passed way back on 18th November 2005, no effort was made thereafter by the Petitioners to assert that they continue to remain in actual physical possession of the Part A land. They appear to have moved the Court only in 2015. The delay in approaching the Court for relief is inordinate and has no convincing explanation.
15. In Mahavir v. Union of India (2018) 3 SCC 588, the Supreme Court observed as under:
"23. In the instant case, the claim has been made not only belatedly, but neither the petitioners nor their previous three generations had ever approached any of the authorities in writing for claiming compensation. No representation had ever been filed with any authority, none has been annexed and there is no averment made in the petition that any such representation had ever been filed. The claim appears not only stale and dead but WP(C) No.2199/2017 Page 8 of 11 extremely clouded. This we are mentioning as additional reasons, as such claims not only suffer from delay and laches but courts are not supposed to entertain such claims. Besides such claims become doubtful, cannot be received for consideration being barred due to delay and laches. 24. The High Court has rightly observed that such claims cannot be permitted to be raised in the court, and cannot be adjudicated as they are barred. The High Court has rightly observed that such claims cannot be a subject matter of inquiry after the lapse of a reasonable period of time and beneficial provisions of Section 24 of the 2013 Act are not available to such incumbents. In our opinion, Section 24 cannot revive those claims that are dead and stale."
16. The aforesaid Judgment has been considered by the Supreme Court in the decision of Indore Development Authority v. Shailendra reported at (2018) 3 SCC 412, relevant portion of which is reproduced hereunder:-
"128. In our considered opinion section 24 cannot be used to revive the dead or stale claims and the matters, which have been contested up to this Court or even in the High Court having lost the cases or where reference has been sought for enhancement of the compensation. Compensation obtained and still it is urged that physical possession has not been taken from them, such claims cannot be entertained under the guise of section 24(2). We have W.P.(C) Nos. 946/2017 & 948/2017 Page 5 of 7 come across the cases in which findings have been recorded that by which of drawing a Panchnama, possession has been taken, now again under Section 24(2) it is asserted again that physical possession is still with them. Such claims cannot be entertained in view of the previous decisions in which such plea ought to have been raised and such decisions would operate as res judicata or constructive res judicata. As either the plea raised is negatived or such plea ought to have been raised or was not raised in the previous round of litigation. Section 24 of the Act of 2013 does not supersede or annul the court‟s decision and the provisions cannot be misused to reassert such claims once over again. Once Panchnama has been drawn and by way of drawing WP(C) No.2199/2017 Page 9 of 11 the Panchnama physical possession has been taken, the case cannot be reopened under the guise of section 24 of Act of 2013.
129. Section 24 is not intended to come to the aid of those who first deliberately refuse to accept the compensation, and then indulge in ill-advised litigation, and often ill-motivated dilatory tactics, for decades together. On the contrary, the section is intended to help those who have not been offered or paid the compensation despite it being the legal obligation of the acquiring body so to do, and/or who have been illegally deprived of their possession for five years or more; in both the scenarios, fault/cause not being attributable to the landowners/claimants.
130. We are of the view that stale or dead claims cannot be the subject-matter of judicial probing under section 24 of the Act of 2013. The provisions of section 24 do not invalidate those judgment/orders of the courts where under rights/claims have been lost/negatived, neither do they revive those rights which have come barred, either due to inaction or otherwise by operation of law. Fraudulent and stale claims are not at all to be raised under the guise of section 24. Misuse of provisions of section 24(2) cannot be permitted. Protection by the courts in cases of such blatant misuse of the provisions of law could never have been the intention behind enacting the provisions of section 24 (2) of the 2013 Act; and, by the decision laid down in Pune Municipal Corporation (supra), and this Court never, even for a moment, intended that such cases W.P.(C) Nos. 946/2017 & 948/2017 Page 6 of 7 would be received or entertained by the courts."
17. With Respect to Part B land it has to be noted, the above-noted Judgments in Mahavir (supra) and Indore Development Authority (supra), were not available for consideration before this court while passing the order in Unique Wood Product (supra). Therefore the discussion hereinbefore w.r.t. the non-maintainability of the petition on the ground of delay and laches would also be applicable to Part B land.
WP(C) No.2199/2017 Page 10 of 1118. Another difficulty for the Petitioners is that both Part A and Part B land in question have been acquired for Rohini Residential Scheme. Although they seek to contend that the orders passed by the Supreme Court in SLP (C) No.16385-88/2012 (Rahul Gupta v. DDA) do not pertain to Village Mohamadpur Majri, Rohini where the lands in question is located, this Court has rejected a similar plea earlier in its order dated 22nd November 2018 in W. P. (C) 5111 of 2016 (Jawahar Singh v. Lt. Governor). This Court finds that in the order dated 18th October 2016 in Rahul Gupta v. DDA, the Supreme Court was categorical that "in case the applicants have re-entered possession or otherwise, they shall vacate the said land and hand over its possession forthwith to the DDA, failing which it shall be assumed to be in possession of the DDA, after the expiry of ten days from the passing of the instant order."
19. Following the aforementioned decisions and in the light of the facts and circumstances listed out hereinbefore, the present petition is dismissed both on the ground of laches as well as merits for both Part A and Part B land. The interim stay stands vacated.
SANJEEV NARULA, J.
S.MURALIDHAR, J.
JANUARY 25, 2019 ss WP(C) No.2199/2017 Page 11 of 11