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2015 DAILYLAW 3738 (DEL)

Kishan Chand v. Union of India

2015-07-13

Badar Durrez Ahmed, Sanjeev Sachdeva

body2015
JUDGMENT BADAR DURREZ AHMED, J. 1. The petitioners seek the benefit of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as ‘the 2013 Act’) which came into effect on 01.01.2014. A declaration is sought to the effect that the acquisition proceeding initiated under the Land Acquisition Act, 1894 (hereinafter referred to as ‘the 1894 Act’) in respect of which Award No. 243/1986-87 dated 22.09.1986 was made, inter alia, in respect of the petitioners’ land comprised in Khasra No. 48/19 measuring 4 bighas and 16 biswas in all in village Narela, Delhi, shall be deemed to have lapsed. 2. Insofar as 1 bigha is concerned out of the above land, it is admitted by the respondents that the physical possession of the same could not be taken because it was built-up. The respondents however contend that in respect of the balance 3 bighas 16 biswas the possession was taken by them on 10.03.1995. This is disputed by the petitioners who claim to be in actual physical possession of the entire subject land i.e. 4 bighas 16 biswas. 3. In so far as the question of compensation is concerned, the same has not been paid to the petitioners but according to the respondents, the same has been deposited in the treasury. Therefore, they seek to invoke the second Proviso to Section 24(2) of the 2013 Act, which was introduced by virtue of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015 (hereinafter referred to as “the said Ordinance”). 4. So far as the applicability of the second Proviso to Section 24(2) of the 2013 Act is concerned, the same cannot be relied upon by the respondents inasmuch as the said Ordinance has been held to be prospective in nature and does not take away vested rights. 4. So far as the applicability of the second Proviso to Section 24(2) of the 2013 Act is concerned, the same cannot be relied upon by the respondents inasmuch as the said Ordinance has been held to be prospective in nature and does not take away vested rights. This has so been held by the Supreme Court in recent decision in M/s. Radiance Fincap Pvt. Ltd. & Others vs. Union of India & Others, decided on 12.01.2015 in Civil Appeal No. 4283 of 2011 wherein the Supreme Court held as under:- “The right conferred to the land holders/owners of the acquired land under Section 24(2) of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the above-said sub-section without giving retrospective effect to the same.” 5. The same has been reinforced by the Supreme Court in Karnail Kaur & Others vs. State of Punjab & Others, Civil Appeal No. 7424 of 2013 decided on 22.01.2015. 6. From the above decisions, it is evident that the said Ordinance is prospective in nature and the rights created in favour of the petitioners as on 01.01.2014 by virtue of the 2013 Act are undisturbed by the second Proviso to Section 24(2) of the 2013 Act, which has been introduced by the said Ordinance. The same would apply to the Ordinance of 2015. 7. Without going into the controversy with regard to the physical possession in so far as 3 bighas 16 biswas are concerned, this much is clear that the Award was made more than five years prior to the commencement of the 2013 Act and the compensation has also not been paid to the petitioner, but has only been deposited in the treasury, which does not amount to payment of compensation as interpreted by the Supreme Court in Pune Municipal Corporation and Another vs. Harakchand Misirimal Solanki and Others, (2014) 3 SCC 183 . 8. All the necessary ingredients for the application of Section 24(2) of the 2013 Act as interpreted by the Supreme Court and this Court in the following cases stand satisfied:- (1) Union of India and Others vs. Shiv Raj and Others, (2014) 6 SCC 564 . (2) Sree Balaji Nagar Residential Association vs. State of Tamil Nadu and Others, Civil Appeal No. 8700 of 2013, decided on 10.9.2014. (2) Sree Balaji Nagar Residential Association vs. State of Tamil Nadu and Others, Civil Appeal No. 8700 of 2013, decided on 10.9.2014. (3) Surender Singh vs. Union of India & Others, W.P. (C) 2294 of 2014, decided on 12.09.2014 by this Court. (4) Girish Chhabra vs. Lt. Governor of Delhi and Others, W.P. (C) 2759 of 2014, decided on 12.09.2014 by this Court. 9. As a result, the petitioners are entitled to a declaration that the said acquisition proceedings initiated under the 1894 Act in respect of the subject land are deemed to have lapsed. It is so declared. 10. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs.