High Court of Punjab and HaryanaCWP/1520/2016dismissed

Jagram v. State Of Haryana And ORS

2022-08-31The Chief Justice,Mr. Justice Arun Palli11 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 1520 of 2016 (O&M) Reserved on : 29.03.2022 Date of Decision: 31st August, 2022 Jagram

...Petitioner

Versus

State of Haryana and others

...Respondents

Present:8 Mr. Sandeep Sharma, Advocate, for the petitioner. Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Assistant Advocate General Haryana and Ms. Kushaldeep K.Manchanda, Advocate, for the respondents ******

The instant petition has been filed claiming that the acquisition proceedings carried out vide the notifications issued under Section 4 & 6 of the Land Acquisition Act, 1894 dated 22.03.1990 and 19.03.1991 respectively; followed by the award dated 16.03.1993, thereby acquiring the land for a public purpose, namely for the development and utilization of land as Residential, Commercial, Institutional and open space, Sector 38 to 41, Gurgaon; qua the land of the petitioner comprised in Khasra No. 441 measuring 200 sq. yds, situated within the Revenue Estate of Village Islampur, Tehsil & District Gurgaon; has lapsed in view of the provisions of Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013.

Owing to the controversy erupted as regards the interpretation of the provision of Section 24 (2) of the Act of 2013, like many other writ petitions, the proceedings in the instant petition were kept in abeyance awaiting the decision of the Supreme Court of India. The controversy was finally put at rest by a Constitution Bench of the Supreme Court of India in

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% & &2 #= The sum and substance of the interpretation of Section 24 (2) of the Act of 2013 by the Hon'ble Supreme Court of India is that the first and foremost condition to seek lapsing is that both the contingencies provided i.e. about the physical possession and the payment of compensation are to be fulfilled, meaning thereby, if either of the conditions is not satisfied, there would be no lapsing. As far as the obligation to make the payment in lieu of

the land acquired is concerned, it has been clarified that such obligation to pay is complete by tendering the compensation, which would mean that the compensation amount was made available to the land owner and if he has not accepted the same, it will not be available for the land owner to claim that the compensation has not been paid. Similarly, word "deposit" has been interpreted to mean depositing with the Land Acquisition Collector or the treasury or the Reference Court. Drawing of panchnama has been considered to be a valid proof of taking physical possession and once the land stands vested in the State, there is no divesting provided under Section 24 (2) of the Act of 2013.

The Supreme Court of India has further clarified that the period for which any interim order was in operation, will be excluded while computing the gap period of five years. Similarly, it has been clarified that Section 24 (2) of the Act of 2013 does not give rise to new cause of action to question legality of concluded proceedings of land acquisition as it applies to only those cases wherein the proceedings were pending on the date of enforcement of Act of 2013.

As per the case put forth by the petitioner, he is owner of the land comprised in Khasra No. 441 measuring 200 sq. yds., situated in the revenue estate of Islampur, Tehsil &District Gurgaon. He has constructed his house on the aforesaid land and the said land is in his possession. The land was acquired by the Government of Haryana by issuing of notifications dated 22.03.1990 and 19.03.1991 under Section 4 & 6 of the Acquisition Act, 1894 followed by award dated 16.03.1993 for the public purpose namely, for development and utilization of land as Residential, Commercial, Institutional, Open Space, Sector 38 to 41, Gurgaon. It is the case of the petitioner that despite having announced the award on 16.03.1993, the

respondents have failed to take the possession of the land in question and even the amount of compensation has neither been paid nor deposited in the Reference Court. Therefore, the acquisition proceedings qua the land in question stands lapsed in view of Section 24(2) of the Act of 2013. 4.

Per contra Mr. Ankur Mittal, learned Additional Advocate General appearing for the respondent8State of Haryana submits that the instant petition deserves to be dismissed in view of the law laid down by the Supreme Court of India in the case of Indore Development Authority (supra) as none of the contingencies prescribed in Section 24(2) of the Act of 2013 are fulfilled. The first and foremost requirement for claiming lapsing of acquisition proceedings is to prove that the land owner is in possession of the land in question, which the petitioner has failed to prove as the possession of the land in question was taken by the State by recording Rapat Roznamcha No. 981 dated 18.07.2011, which has been held as a valid mode of taking possession.

Once such possession is taken, the land vests absolutely in the State and whosoever retains or remains in the possession of the land, he is a trespasser. He further submits that the obligation of the State to pay the compensation stands duly discharged as the entire compensation amount was tendered at the time of announcement of award and was made available to the landowners. This is substantiated from the fact that out of total award amount of Rs.

34,45,22,645.75/8, an amount of Rs. 31,92,15,995.40/8 i.e. majority of compensation has been disbursed. As far as the land in question is concerned, the petitioner has not received the compensation amount, which he is at liberty to receive. Therefore, in view of the law laid down by the Supreme Court of India in Indore Development Authority (supra), none of the contingencies were prescribed in Section

24(2) of the Act of 2013 are fulfilled and no declaration with respect to lapsing of acquisition proceedings can be made. 5.

Having heard the respective arguments, going through the respective pleadings and above all the exposition of Indore Development Authority (supra), we are of the considered opinion that the instant petition is liable to be dismissed for more than one reason.

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The Petitioner in the instant petition has claimed to be in the physical possession of the land in question. Positive case set up by the petitioner is that even though the award was passed on 16.03.1993, yet the physical possession has not been taken. In this regard, the respondents have filed the written statement submitting that possession was taken by drawing panchnama in the form of Rapat Roznamcha No. 981 dated 18.07.2011 which has been held as a valid mode of taking possession of the land. Section 16 of the Act of 1894 provides that after taking the possession of the land, it vests in the State free from all encumbrances. Thus, we are of the considered opinion that the physical possession of the land in question duly taken and land is vested in the State. The reference in this regard is made to the following paragraphs from the judgment:8

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Thus, the plea of the petitioner of being in physical possession of the land in question is wholly mis8conceived and is liable to be rejected. $-#%& !($&!-$+&('$.( %"!&)&*+% ($&/!

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The respondents have categorically pleaded in the written statement that the amount of compensation for the entire awarded land was made available to all the land owners. It is the stand of the State that the amount due to the petitioner is available for disbursement and the petitioner is at liberty to receive the same, coupled with the fact that majority of compensation has been disbursed. This shows that the compensation amount was duly tendered, and the obligation to the State to pay the compensation stands duly discharged. In this regard, Mr. Mittal has asserted that in view of

the exposition in Indore Development Authority (supra), the obligation of the State to pay the compensation is discharged if the amount of compensation is tendered, which has been interpreted to mean that the amount was made available to the land owners as observed in Para 203, which is reproduced here in below:8 2*+ & !

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The afore8stated facts clearly reveal that the observations made here in above did not leave any scope for doubt that the State has discharged its obligation towards making the compensation for the land acquired. Thus, second contingency for claiming the lapsing of acquisition proceedings is also not available to the petitioner.

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The Supreme Court of India in Indore Development Authority (supra) has clearly observed that for deemed lapsing of acquisition proceedings under Section 24 (2) of the Act of 2013, both the conditions i.e. payment of compensation and taking of possession must not be fulfilled i.e. if either of the condition is fulfilled, the lapsing cannot happen. The Supreme Court of India has observed that the word "or" occurring in Section 24 (2) of the Act of 2013 must be read as "and/nor". Relevant paras from the judgment are reproduced here in below:8 2 - 8 " 5

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In the case at hand as reflected from the reply filed, it is evident that after the award was announced on 16.03.1993, the physical possession was taken by recording Rapat Roznamcha No. 981 dated 18.07.2011 and the compensation amount was duly tendered. Since none of the conditions prescribed in Section 24(2) of the Act of 2013 are fulfilled, therefore, said provision cannot be relied upon by the petitioner to claim lapsing of the acquisition proceedings.

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Mr. Ankur Mittal on the strength of the facts pleaded in the written statement has vehemently contended that the State acquired the land for the public purpose for utilization of land as Residential, Commercial, Institutional and Open Space, Sector 38 to 41, Gurgaon. The land in question is very much essential to achieve the public purpose as it affects the development of housing board site as per the approved layout plan. We have considered this part of argument raised by the respondents and we are in

complete agreement with the same as this is an important factor to be kept in mind while dealing with the case arising out of the acquisition of land to achieve the public purpose and it is the State/its authority who is in the best position to decide about utilization of the land acquired, after it having been vested in State.

13.

As a sequel of the above discussion and in view of law summarized in para 363 of Indore Development Authority (supra), specifically after having recorded that in the case at hand, the physical possession of the land in question having been taken, the obligation for payment of compensation stands discharged and also considering that the land in question is very much essential to achieve the public purpose, we have no hesitation to hold that in the instant case, the State has fully discharged its obligation qua both the contingencies occurring in section 24 (2) of 2013 Act and it being so, the instant petition is dismissed. 14.

Having dismissed the main writ petition, all pending applications, if any also meet the same fate. The writ petition is dismissed. Status quo, if any, stands vacated. (RAVI SHANKER JHA) CHIEF JUSTICE (ARUN PALLI) 31st August, 2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No