Dinesh Kumar v. State Of Haryana And ORS

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision 22.11.2021 Dinesh Kumar

...Petitioner

Vs.

State of Haryana and ors.

...Respondents

CORAM: HON'BLE MS. JUSTICE RITU BAHRI HON'BLE MR. JUSTICE KARAMJIT SINGH

Present:

None for the petitioner.

Mr. Ankur Mittal, Addl.A.G, Haryana and Mr. Saurabh Mago, AAG, Haryana.

*** Ritu Bahri, J.

Petitioner is seeking setting aside of impugned notification dated 19.10.2001 (P-3), notification dated 18.10.2002 (P-3) issued under Sections 4 and 6 of the Land Acquisition Act, respectively, whereby the land owned by them measuring 125 sq yards each out of total land measuring 1210 sq yards being part of Khasra No. 24/12/2, situated in the revenue estate of village Sultanpur, Hadbast No. 80, District Sonepat has been acquired. On notice, a short reply dated 12.12.2020 has been filed by way of affidavit of Nirmal Dahiya, Land Acquisition Collector, Urban Estate Department, Haryana, Rohtak. In the reply, it has been stated that the land of the petitioners was acquired vide the above notification issued under Section 4 and 6 of the Land Acquisition Act, 1894 respectfully followed by award dated 14.10.

2004 for the public purpose namely, for Residential-Commercial Sector 2, Sonepat on the ground that the acquisition qua his land measuring 125 sq yard being part of Khasra No. 24/12/2, situated in the revenue estate of village Sultanpur, Hadbast No.

Section 24 (2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (for short 'Act 2013). The writ petition is liable to be dismissed in terms of the submissions made in the following paragraphs based upon the judgment of the Hon'ble Constitution Bench in Indore Development Authority v. Manoharlal and others, AIR 2020 SC 1496. The present matter was adjourned sine die vide order dated 23.07.2019 awaiting the decision of the Hon'ble Supreme Court as it involved the question as regards the applicability of section 24(2) of the Act, 2013 which has now been decided by the Hon'ble 5-Judge Bench of the Hon'ble Supreme Court in SLP (C) 9036-9038 of 2016 titled as Indore Development Authority v, Manoharlal and ors.

Further in the reply, it has been stated the possession of the land was taken vide Rapat no. 233 dated 14.10.2004 and the mutation was entered in favour of the beneficiary department.

The issue has been decided by Hon'ble Supreme Court in SLP (C) 9036-9038 of 2016 titled as Indore Development Authority v, Manoharlal and ors. The concluding paragraph of the judgment is reproduced herein below:- "1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.

2.

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

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 proceedings under Section 24(2) of the Act of

2013 takes place where due to inaction of authorities for five years or more prior 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 the compensation has been paid, possession has not been taken then there is no lapse.

4. The expression 'paid' in the main part of 24 (2) the Act 2013 does not include deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 the Act 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in Court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31 (1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013. 6.

The proviso to Section 24(2) Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b). 7.

The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24 (2) of the Act of

2013, as once possession has been taken there is no lapse under Section 24(2).

8.

The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

9.

Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, ie., 1.1.2014. It does not revive stale and time barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition'.

Further out of the the total amount of the award of Rs.2,02,25,89,863/-, the amount of Rs.1,38,89,61,106/- has been disbursed and the rest of the amount is lying deposited in the LAC account and as far as the compensation due to the petitioners of Rs.36,93,385/- , is concerned, he has not lifted the compensation amount. The petitioner is not owner of the land at the time of issuance of notification under Section 4 as he purchased this land in the year 2013, vide sale deed dated 11.02.2013. The land of the petitioner affects the site of Primary school as per the development plan.

Hon'ble the Supreme Court in the SLP (C) 9036-9038 of 2016 titled as Indore Development Authority v, Manoharlal and ors. vide judgment dated 06.03.2020 has categorically observed that the possession taken through mode of Panchnama and Rapat Roznamcha is a valid possession

and once the possession is taken, the land vests absolutely in the State and cannot be given back. Since the possession in the present case has been duly taken vide Rapat no. 233 dated 14.10.2004, therefore the possession is of the beneficiary department only. The relevant para of the judgment reads as under:- "...244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical 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 acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

245. The 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 possession 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 Government 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 acquired. 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 possession 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 deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

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256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification 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 from all encumbrances has to be accorded full effect. Not only 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 property.

Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of the trespasser enures for his benefit and on behalf of the owner."

Further the Hon'ble Supreme Court has observed that for the deemed lapse of acquisition under section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, both the conditions i.e. non-payment of compensation and non-taking of possession must be fulfilled. The Hon'ble Court has observed that the word 'or' in the section 24(2) of the Act of 2013 must be read as 'and'. Therefore since the possession has already been taken, there can be no

lapse of acquisition qua the land of the petitioner. The relevant paras of the judgment are reproduced as follows:

"...99. In this Court's considered view, as regards the collation of the words used in Section 24(2), two negative conditions have been prescribed. Thus, even if one condition is satisfied, there is no lapse, and this logically flows from the Act of 1894 read with the provisions of Section 24 of the Act of 2013. Any other interpretation would entail illogical results. That apart, if the rule of interpretation with respect to two negative conditions qualified by "or" is used, then "or" should be read as "nor" or "and".

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101. In M/s. Ranchhoddas Atmaram and Anr. vs. The Union of India and Ors., AIR 1961 SC 935, a Constitution Bench of this Court observed that if there are two negative conditions, the expression "or" has to be read as conjunctive and conditions of both the clauses must be fulfilled. It was observed:

"(13) It is clear that if the words form affirmative sentence, then the condition of one of the clauses only need be fulfilled. In such a case, "or" really means "either" "or." In the Shorter Oxford Dictionary one of the meanings of the word "or" is given as "A particle co-ordinating two (or more) words, phrases or clauses between which there is an alternative." It is also there stated, "The alternative expressed by "or" is emphasised by prefixing the first member or adding after the last, the associated adv. EITHER" So, even without "either," "or" alone creates an alternative. If therefore, the sentence before us is an affirmative one, then we get two alternatives, any one of which may be chosen without the other being considered at all. In such a case it must be held that a penalty exceeding Rs. 1,000 can be imposed.

(14) If, however, the sentence is a negative one, then the position becomes different. The word "or" between the two clauses would then spread the negative influence over the clause following it. This rule of grammar is not in dispute. In such a case the conditions of both the clauses must be fulfilled and the result would be that the penalty that can be imposed can never exceed Rs. 1,000.

(15) The question then really comes to this: Is the sentence before us a

negative or an affirmative one? It seems to us that the sentence is an affirmative sentence. The substance of the sentence is that a certain person shall be liable to a penalty. That is a positive concept. The sentence is therefore not negative in its import." (emphasis supplied) Thus, for lapse of acquisition proceedings initiated under the old law, under Section 24(2) if both steps have not been taken. i.e. neither physical possession is taken, nor compensation is paid, the land acquisition proceedings lapse...

Learned State counsel states that in terms of the judgment cited above, the present petition deserves to be dismissed as the possession has already been taken by mode of Rapat Roznamcha and the compensation has been tendered, thus no lapse can be sought under the provisions of section 24

(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Keeping in view the reply filed by the State, the present petition is dismissed, as the acquisition proceedings have not lapsed as per section 24

(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as explained in Indore Development Authority (supra).

(RITU BAHRI) JUDGE 22.11.2021 (KARAMJIT SINGH) G Arora JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No