High Court of Punjab and HaryanaCWP/25439/2016dismissed

Ashish Kishor And ORS v. State Of Haryana And ORS

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

CWP No. 25439 of 2016 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Civil Writ Petition No. 25439 of 2016 (O&M) Reserved on : 29.03.2022 Date of Decision: 31st August, 2022.

Ashish Kishor and others .... Petitioners

Versus

State of Haryana and others

...Respondents

Present:9 Mr. Rupak Bansal, Advocate, for the petitioners. 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 controversy involved in the matter at hand revolves around the applicability of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 onto the facts of the case wherein the award under Section 11 of The Land Acquisition Act, 1894 was announced on 02.03.2006 i.e. more than five years prior to the commencement of the Act of 2013 on 01.01.2014 and as contended by the petitioners, neither the possession of the land has been taken by the State nor compensation has been paid/ deposited till date. In view of the said facts, prayer has been made to declare the acquisition proceedings have lapsed under Section 24(2) of Act of 2013. 2.

The interpretation of Section 24(2) of Act of 2013 had remained under cloud for long until it finally came to be decided by a Constitution Bench of the Supreme Court of India in case

CWP No. 25439 of 2016 2

, whereby the Apex Court has laid down the guiding principles in order to decide whether in the given facts and circumstances, the acquisition proceedings can be declared to have been lapsed in view of deeming fiction provided under Section 24(2) of Act of 2013. The concluding paragraph 363 of the judgment is reproduced herein below:9 '....

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The exposition of the law made by the Apex Court can be summarized in the following manner for more clarity on the principles laid down by the Constitution Bench:9 (a) In all those cases wherein the acquisition process had been initiated but the award has not been announced under Section 11 of the Act of 1894, on the date of commencement of the Act of 2013 i.e. 01.01.2014, there is no lapse of proceedings and the same will continue, however, with the rider that the compensation has to be determined under the provisions of Act

CWP No. 25439 of 2016 4 of 2013. All those cases wherein the award under Section 11 of the Act of 1894 has been announced prior to commencement of the Act of 2013, the provisions of the Act of 2013 would have no bearing or application and the proceedings will continue in respect of those cases, as if the Act of 1894 has not been repealed.

(b) The word 'or' used in between both the contingencies of Section 24(2) of the Act of 2013 is to be read as -. or as -. which means that to seek lapsing of the acquisition proceedings, both the contingencies must be fulfilled. Meaning thereby, that if the possession had been taken but the compensation was not received, there would be no lapse. Similarly, if compensation has been accepted but the possession has not been taken, there would be no lapsing. #!"

&&#$ ! 3( $ (c) As far as the aspect of compensation for the land acquired is concerned, the Hon'ble Supreme Court of India has categorically observed that the expression "" in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in Court. What is required to be proved is that the compensation amount was tendered, which has been explained in

& that the tendering of the amount would mean that the amount is made available to the landowner and that would be a discharge of the obligation to make the payment and in that event such a person cannot be penalized for the default in making the payment. While referring to Section 31(1), 31(2), 34 of the Act of 1894 and comparing them with the para materia provisions i.e.

CWP No. 25439 of 2016 5 Section 71 and 80 of the Act of 2013, the Apex Court has clarified that the only consequence of non9payment of compensation is to make the payment of interest as per Section 34 of the Act of 1894. Even the Supreme Court has further clarified that once the payment of compensation has been offered/tendered under Section 31(1), the acquiring authority cannot be penalized for non9payment as the amount has remain unpaid due to refusal to accept by the landowner. To clarify it further, the Supreme Court has further observed that if a landowner has filed the reference for higher compensation, he cannot claim that he was not paid the amount.

(d) While reading the proviso to Section be part of Section 24(2) of the Act of 2013, the Supreme Court has clarified that in case, the offer for payment has been made but not deposited, liability to pay amount along with interest subsists and if not deposited for 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.

Regarding the deposit, it has been clarified in of the judgment that for the higher compensation to follow, the money should not have been deposited with the Land Acquisition Collector or in the treasury or in the Court with respect to majority of land holdings, meaning thereby if it was deposited in any of the three modes with respect to majority of holdings, the higher compensation will not follow, but interest under Section 34 of the Act of 1894 would be the consequence.

CWP No. 25439 of 2016 6 (e) As regards the mode of taking possession, the Supreme Court had clarified that drawing of inquest report/ memorandum would mean that physical possession has been taken. The law with regard to vesting of land has once again be reiterated to hold that once the possession has been taken under Section 16 of the Act of 1894, the land vest in the State and there cannot be any divesting or lapsing.

(f) While computing the gap period of five years between the date of award and commencement of the Act of 2013, any interim order subsisting is to be excluded which means that after excluding the interim order, the pre9requisite gap period of 5 years is not there, the provisions of Section 24(2) cannot be invoked. (g) The Hon'ble Court has further clarified that if the acquisition of land had earlier been challenged and the acquisition was upheld, which means the proceeding stood concluded, the umbrella protection of Section 24(2) of the Act of 2013 cannot be invoke as it does not revive stale and time barred claims. (h) In para 337, the Supreme Court Court has made it clear that the provision of Section 24(2) of the Act of 2013 is meant to be invoked by the beneficiaries i.e. landowners who were recorded so at the time of issuance of notification under Section 4 of the Act of 1894. Any subsequent purchaser, POA holder or otherwise, cannot invoke the provisions of Section 24(2) of the Act of 2013.

As per the case put forth by the petitioners, they are owners in possession of the land comprised in Khasra No. 13//15/1 (798), 14/2(790), 16/1 (199), 17/1 (199), 14//11/2 (0915), 14//20/2 /(5910), 13//16/2 (6911),

CWP No. 25439 of 2016 7 13//17/2 (5911), 13//3/2 (490), 8/1 (490), 13/2 (490), 17/3 (190), 18/1 (590), 18//12/2 (394), 13 (890), 18(890), 19(890), 20(890), 21(890), 22(890), 23(890), 28 (890) in the revenue Estate of Village Badhkhalsa Tehsil Rai, District Sonipat. The land of the petitioners along with land of other land owners came to be acquired by the State of Haryana vide notifications dated 17.11.2005 and 07.02.2006 issued under Section 4 and Section 6 of the Land Acquisition Act, 1894, followed by award dated 02.03.2006 for the public purpose namely, Development and Utilization of land for Residential, Commercial and Institutional Sector 65, 66, 67 and 68 Sonepat.

It is case of the petitioners that they are in actual physical possession of the land in question and have not received the compensation amount till date, therefore, the acquisition proceedings qua the land in question has lapsed in terms of Section 24(2) of the Act of 2013. The petitioners filed Civil Writ Petition No. 10299 of 2014 thereby seeking lapsing of acquisition proceeding under Section 24(2) of the Act of 2013 which was disposed of vide order dated 21.04.2015 with directions to the respondent authority to decide the representation of the petitioners by passing an appropriate speaking order considering the applicability of Section 24(2) of the Act of 2013. In compliance of the same, the speaking order dated 02.03.

2016 came to be passed thereby rejecting the representation of the petitioners on the ground that the possession of the land was taken and the amount of the compensation was duly tendered as 80% of the total amount of compensation stands paid to the land owners. As far as the land in question is concerned, it has been recorded therein the petitioners have not taken the amount of compensation. It was further considered that the land in question affects area of plot no. 40 part, 24 mtr. service road, 100mtr.

CWP No. 25439 of 2016 8 therefore no case is made out under Section 24(2) of Act of 2013. The petitioners have challenged the aforesaid order on the ground that while rejecting the claim, the respondent authorities have failed to consider that they are in physical possession of the land in question and have not taken any compensation for the acquired land till date. Therefore, the order is liable to be set aside and the acquisition proceedings shall be declared to have been lapsed.

In response to the submissions made by the petitioners, Mr. Ankur Mittal, learned Additional Advocate General appearing for the respondent9State of Haryana, has contended that the present petition is squarely covered by the principles laid down in Indore Development Authority (Supra) and thus, has prayed for its dismissal. It is his contention that in the case at hand, both the contingencies under Section 24(2) of Act of 2013 remain unfulfilled as the possession of the land was taken at the time of announcement of award itself by recording Rapat Roznamcha no. 566 dated 02.03.2006 and same has been handed over to the beneficiary department i.e. HSVP.

He submits that the drawing of Panchnama, which in the present case is recording of Rapat Roznamcha, is valid mode of taking possession of the land and once it is taken, the land vests in the State free from all encumbrances. Further he submits that the compensation for land in question was duly tendered i.e., was made available to the petitioner and other land owners which is evident from the fact that out of total award amount i.e. Rs. 3,34,90,10,360/9, an amount of Rs. 2,60,58,18,572/9 has been disbursed and remaining amount is available for disbursement. As regards the land in question, compensation amount is available and the petitioners are at liberty to receive the same.

CWP No. 25439 of 2016 9 that the amount of compensation was duly tendered. Therefore, none of the contingencies of Section 24(2) of Act of 2013 have been fulfilled and thus, present petition merits dismissal.

After having perused the pleadings of both the contesting parties and recording their contentions, we have no hesitation to conclude that the matter at hand is squarely covered by the principles laid down by the Supreme Court of India in case Indore Development Authority (supra) and the prayer of the petitioners claiming lapsing of acquisition proceedings deserves dismissal in view of the following reasons:9 a)Though the petitioners have contended that actual physical possession of the land in question remains with them, however, the said averment does not find substance firstly, in view of the interpretation of 'physical possession' made by the Apex Court in Indore Development Authority (Supra) wherein the Hon'ble Court has categorically held that the word '' used in the Act of 1894 has same meaning as that of physical possession used in Section 24 (2) of Act of 2013.

When the State Government acquires the land and draws memorandum of taking possession, which in the present case is by recording Rapat Roznamcha no. 566 dated 02.03.2006, which amounts to taking of the physical possession of the land and once the possession is taken, there is absolute vesting of the land in the State. Thereafter, even if the landowner retains the possession of the land, he is a trespasser, and such possession of trespasser enures for his benefit and on behalf of the owner i.e. State. Therefore, as observed above, the possession of the land in question was taken by recording Rapat Roznamcha No.

CWP No. 25439 of 2016 10 dated 02.02.2006 which implies that the possession of the land stands duly taken and same vests in the State free from all encumbrances. Therefore, we have no hesitation to hold that the physical possession of the land in question stands taken and thus, it is not available to the petitioner to contend that he is still in possession of the land in question and accordingly, one of the contingencies occurring in Section 24(2) of 2013 Act goes.

b) As far as the aspect of compensation is concerned, it is important to highlight here that the Apex Court while interpreting the word 'paid' occurring in Sec924(2) and the word 'deposited' used in proviso to Sec 24 (2) of 2013 Act has very categorically observed the meaning and effect of both by holding that the word 'paid' does not include deposit and in case, the amount has been tendered, the obligation to pay is fulfilled. What would construe to mean "tender of the amount" has been explained in Para 203 to mean that the amount is/was made available to the landowner and that would be a discharge of the obligation to make the payment.

It is the specific stand of the Respondent State that the compensation amount was duly tendered to the landowners and to substantiate the same, attention of this Court has been drawn towards the fact that out of total compensation, majority amount has already been disbursed. Once it is so, there does not remain even an iota of doubt that the compensation amount was duly tendered to the petitioners, however they chose not to accept the same and thus, no inaction can be attributed to the State in this regard.

CWP No. 25439 of 2016 11 c)Further it is pertinent to mention that the acquisition proceedings stood concluded way back in the year 2006 and as pointed out by the learned Counsel appearing for the State of Haryana, the land in question has been planned and it affects the planning of planning of plot no. 40, 24 mtr. service road, 100mtr. green belt and orbital corridor as per the approved development plan, therefore, it is essential for achieving the public purpose for which the land was acquired and cannot be released from the acquisition, more so when the possession of the land sands already taken.

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. 8.

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