High Court of Punjab and HaryanaCWP/1956/2015dismissed

Dharam Prakash & ORS v. State Of Haryana & ORS

2022-08-31The Chief Justice,Mr. Justice Arun Palli12 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 1956 of 2015 (O&M) Reserved on : 29.03.2022 Date of Decision: 31 August, 2022 Dharam Parkash and others

...Petitioners

Versus

State of Haryana and others

...Respondents

Present:9 Mr. S.R.Hooda, Advocate, for the petitioners. Mr. Ankur Mittal, Addl. Advocate General, Haryana with Mr. Saurabh Mago, Assistant Advocate General Haryana and Ms. Kushaldeep Kaur 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 29.11.2001 and 28.11.2002 respectively; followed by the award dated 24.11.2004, thereby acquiring the land for a public purpose, namely for the development and utilization of land as Residential, and Commercial Sector 58 Sonepat; qua the land of the petitioners comprised in Khasra No. 75//11/3 (393), 20(7912) and 63//16(79

11) total measuring 18K 06M situated within the Revenue Estate of Village Nangal Kalan, Sub Tehsil Rai, District Sonepat; 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 the Constitution Bench of the Supreme Court of India in

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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 LAC 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 Hon'ble 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 petitioners, they are owners of Khasra No. 75//11/3 (393), 20(7912) and 63//16(7911) total measuring 18K9 06M situated within the Revenue Estate of Village Nangal Kalan, Sub Tehsil Rai, District Sonipat. The said land was acquired by the Government of Haryana by issuing of notification dated 29.11.2001 and 28.11.2002 issued under Section 4 & 6 of the Land Acquisition Act, 1894, respectively, followed by award dated 24.11.2004 for the public purpose namely, development and utilization of land as Residential and Commercial Sector 58, Sonipat. It is the case of the petitioners that despite having announced

the award on 24.11.2004, the respondents have failed to take the possession of the land in question as till date they are in possession of the land in question and even the amount of compensation has neither been paid nor deposited with 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.

Before adverting to the contentions raised by the respondents, it is important to be noticed here, that though prayer clause of the petition was styled in the manner as in below i.e.:9 > ) % & 2,

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% 6 &2 ,&&&-, % & + !+ + + * A * % % + %6 &= But essentially the relief has been claimed only with respect to the applicability of Section 24 (2) of Act of 2013 and accordingly, we will be considering the issues raised in the instant petition as regards the plea of Section 24(2) of the Act of 2013 only.

Per contra Mr. Ankur Mittal, learned Additional Advocate General appearing for the respondent9State of Haryana submits that the instant petition deserves to be dismissed in view of the law laid down by the Hon'ble 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 to claim lapsing of acquisition proceedings is to prove that the land owner is in possession of the land in question, which the petitioners have failed to prove as the possession of the land in question was taken by the State by recording Rapat Roznamcha No. 185 dated 24.11.2004, 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.As regards the land in question, the compensation was deposited in the account of Land Acquisition Collector, therefore, is available for disbursement. He submits that in terms of the exposition of law made in Indore Development Authority (supra), the obligation of the State to pay the compensation is discharged once such amount is tendered i.e. made available to the land owners. Actual payment or deposit in the Reference Court is neither necessary nor envisaged in the scheme of Land Acquisition Act, 1894 so as to discharge the obligation of making payment by the State Government.

Accordingly, he has contended that since none of the contingencies provided under Section 24(2) of the Act of 2013 are fulfilled, no declaration as regards the lapsing of acquisition proceedings can be made in the given facts and circumstances. 7.

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 Petitioners in the instant petition have claimed to be in the physical possession of the land in question. Positive case set up by the Petitioners is that even though the award was passed on 24.11.2004 and they did not challenge the acquisition proceedings yet the physical possession has not been taken from them. 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. 185 dated 24.11.2004 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. The reference in this regard is made to the following paragraphs from the judgment:9

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The respondents have categorically pleaded in the written statement that the amount of compensation for the entire acquired land was made available to all the landowners. It is the stand of the State that the amount of compensation as regards the land in question was duly tendered and is lying deposited in the account of Land Acquisition Collector. Therefore, 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:9

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The Hon'ble 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 Hon'ble Supreme Court of India has observed that 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:9 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 24.11.2004, the physical possession was taken by recording Rapat Roznamcha No. 185 dated 24.11.2004 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 Petitioners 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 namely for development and utilization of land as Residential, and Commercial Sector 58, Sonipat. The land in question is very much essential to achieve the public purpose in accordance with the layout plan. We have considered this part of the 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.

14.

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 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. 15.

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) 31 August, 2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No