High Court of Punjab and HaryanaCWP/2069/2018dismissed

Mahipal And ANR. v. State Of Haryana And 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. 2069 of 2018 (O&M) Reserved on : 29.03.2022 Date of Decision: 31.08.2022 Mahipal and another

...Petitioners

Versus

State of Haryana and others

...Respondents

Present:5 Mr. Sandeep Sharma, 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 instant petition has been filed by claiming that the acquisition proceedings carried out vide the notifications issued under Section 4 & 6 of the Land Acquisition Act, 1894 dated 02.08.1989 and 01.08.1990 respectively; followed by the award dated 07.10.1991, thereby acquiring the land for a public purpose, namely, for the development and utilization of land as Residential and Commercial Sector 45, Faridabad; qua the land of the petitioners comprised in Khasra No. 49//14/2/2 (1513) at Village Mewala, Maharajpur, Tehsil & District Faridabad,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 Hon'ble 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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That the sum and substance of the interpretation of Section 24

(2) of the Act of 2013 by the Supreme Court of India is that to seek lapsing, 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 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 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. 4.

As per the case put forth by the petitioners, they are owners of Khasra No. 49//14/2/2 (1513) situated in Village Mewala, Maharajpur, Tehsil and District Faridabad, whereupon they have constructed rooms and are in physical possession of the of the land in question. The said land was acquired by the Government of Haryana by issuing notifications dated 02.08.1989 and 01.08.1990 under Section 4 & 6 of the Acquisition Act, 1894, followed by award dated 07.10.1991 for the public purpose namely, for development and utilization of land for residential and commercial Sector 45, Faridabad. It is the case of the petitioners that despite having announced the award on 07.10.1991, the respondents have failed to take the possession of the land in question. Further, they have contended that till date neither the compensation of the acquired land was paid to the petitioners nor was deposited with the Reference Court in accordance with law. Therefore, the acquisition proceedings qua the land in question stand lapsed in view of

Section 24(2) of the Act of 2013. In addition to the aforesaid, the petitioners have contended that the land adjacent to the petitioners that has already been released from the acquisition proceedings. Taking all the pleas, petitioners earlier approached this Court by filing Civil Writ Petition No. 23025 of 2014, which was disposed of vide order dated 23.04.2015 thereby directing the respondent authorities to decide the representations moved by the petitioners, considering all the grounds as raised in the petition. The representation moved by the petitioners was decided and their claim was rejected by passing a speaking order dated 11.01.2018.

While rejecting the claim of the petitioners, it was noticed that possession of the acquired land was taken and handed to beneficiary department vide Rapat No. 66 dated 07.10.1991. As regards the status of compensation, it was noticed that the compensation as regards the land in question was sent to the Court of Additional District Judge on 22.05.1992 under Section 30 of the Land Acquisition Act, 1894. The petitioners in the instant petition have challenged both the acquisition proceedings as well as the speaking order and have thus, sought lapsing of the acquisition proceedings on the ground that neither the possession of the land has been taken nor the compensation has been paid to the petitioners.

Though in the pleadings, the petitioners have raised the plea of discrimination by contending that all the adjacent land of the petitioners has been released in favour of the influential persons, however, at the time of the issuance of notice of motion the only contention raised by the petitioners was on the premise of Section 24(2) of the Act of 2013 alone and thus, the claim as regards the discrimination stands virtually given up and even otherwise had no merits as the plea being raised is highly vague and is in fact hit by delay and laches, since the acquisition proceedings stood

concluded way back in the year 1991 and as transpires from the pleadings itself, at no point of time the petitioners had challenged the acquisition proceedings, therefore, considering the scope of the instant writ petition, we would be considering only the plea of applicability of Section 24(2) of the Act of 2013 on the acquisition proceedings for the land in question. 6.

Per contra, Mr. Ankur Mittal, learned Additional Advocate General appearing for the respondent5State submitted 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

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. 66 dated 07.10.1991, 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.

Further, the averment of the petitioners that they have constructed rooms on the site is false as the land in question was vacant at the time of notification under Section 4 of the Act of 1894, therefore, if any construction has been raised post the acquisition proceedings were initiated, same is illegal and unauthorized. He further submits that the obligation of the State to pay the compensation stands duly discharged as the entire compensation amount was tendered and the compensation amount due towards the land in question was sent to the Court of Additional District Judge, Faridabad on 22.05.1992 under Section 30 of the Act of 1894.

issuance of notice of motion had wrongly stated that the compensation amount was neither paid nor deposited in the Reference Court in accordance with law, therefore, learned counsel has prayed for dismissal of the instant petition with costs. As a sequel of the aforementioned fact, a prayer has been made for dismissal of the instant petition as none of the contingencies provided in Section 24 (2) of the Act of 2013 are fulfilled, which are essential for claiming lapsing of the acquisition proceedings. 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:5

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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 07.10.1991 and they did not make challenge to 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 the possession was taken by drawing a panchnama in the form of Rapat Roznamcha No. 66 dated 07.10.1991 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 stands duly taken and the land vests in the State. Thus, the plea being raised by the petitioners of being in physical possession of the land in question is wholly mis5conceived 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 acquired land was made available to all the landowners and as regards the compensation for land in question, same was deposited in the Reference Court on 22.05.1992 under Section 30 of the Act of 1894, therefore, the obligation of the State to pay the compensation amount 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 hereinbelow:5 !"

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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 Apex Court 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 hereinbelow:5 -- 3 . " ) ' "

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In the case at hand, as reflected from the speaking order as well as reply filed, it is evident that after the award was announced on 07.10.1991, the physical possession was taken by recording Rapat Roznamcha No. 66 dated 07.10.1991 and the compensation amount was duly tendered and deposited in the Reference Court as well. Therefore, since none of the conditions prescribed in Section 24(2) of the Act of 2013 are fulfilled, therefore, the 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 i.e. for development and utilization of land as Residential and Commercial Sector 45, Faridabad. The land in question is very much essential to achieve the public purpose as it affects the development of 30 mtr. wide Sector dividing road as per the 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.

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As a sequel of the above discussion and in view of the 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 present petition merits dismissal. The speaking order passed by the respondent authorities thereby rejecting the claim of the petitioners is accordingly, affirmed and upheld.

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) 31.08. 2022 JUDGE ravinder Whether speaking/reasoned √Yes/No Whether reportable √Yes/No