Land Acquisition proceedings:acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
+ W.P.(C) 407/2012, C.M. APPL.25579/2015 & 25580/2015 M/S. GREY SHAM AND CO. AND ANR. ….. versus UOI AND ORS.
+ W.P.(C) 4432/2015, C.M. APPL.8048/2015
SALONI MEHROTRA AND ANR. …. versus GNCTD AND ORS. …..
CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE S.P. GARG
03/07/17 [ DELHI HIGH COURT ]
Land Acquisition proceedings – The relief claimed in W.P.(C) is that since the property was not taken possession of by the respondents, the acquisition is deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – The Court notices that the LAC whose primary responsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were builtup and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land – The documents relied upon, i.e. proceedings rule out the inference that mere symbolic possession is taken.
The respondents – GNCTD in their counter affidavit rely principally upon the proceedings of possession dated 22.12.1972. It is urged here that notwithstanding the nature of the pleading which seem to suggest that mere symbolic possession was taken, the fact remains on record that physical possession of the lands was taken and witnessed by both Govind Singh, and Man Singh, the father of Mohan Singh and Govind Singh, as well as one of the petitioners. These too were partners of Greysham and Company which is the first petitioner in the W.P.(C) 407/2012. The GNCTD furthermore submits that the position of the first petitioner in W.P.(C) 407/2012 in respect of said concerned land is also that it was in effect a licensee of the MCD and admitted as such in response to the notice by the MCD, involving deposit of arrears of damages for unauthorized occupation of a portion of the suit property. It is submitted that in this light, the submission of the petitioners that they have been in the continuous possession of the suit lands and that they were never displaced bears out from the record.
9. It is evident from the above narrative that the first petition seeks a direction for denotification and the second proceeds on the footing that the land acquisition proceedings have lapsed. So far as the first claim in the first proceeding is concerned, the GNCTD relies upon the detailed minutes of the denotification committee meeting of 25.02.2010. A look at that document will show that Greysham and Company’s application in respect of the suit property too was considered. The Committee decided not to recommend denotification because the officers of the MCD, “contended that this piece of land is required for establishment of a primary school which will be a feederschool for the existing sr. secondary school in the area.” The petitioners’ endeavor was to submit that there was already an existing school and that it was entitled to alternative land in lieu of acquired land and that consequently, a direction for denotification under Section 48 has to be made. It is consequently urged to acknowledge the claim in W.P.(C) 4432/2015 that in fact actual possession was never taken because if that were the case, the application under Section 48 would not have been maintainable.
10. As far as the claim for denotification is concerned, the Court notices that there is no authority in law to suggest that a citizen who has received compensation and whose lands have been notified for acquisition had a vested right to claim denotification. Whether to leave from acquisition or not is a matter which lies within the exclusive domain of the authority. Sans successful plea of discrimination or utterly arbitrary approach to the request for denotification, the public nature of the process itself would preclude the right to claim denotification. In short, judicial review would be confined to mere considering whether reasons for declining denotification can withstand scrutiny. It would be well to recollect that without establishing illegality, procedural irregularity or lack of bona fides, in the absence of a legal right, an order – statutory or executive, cannot be set aside or characterized as arbitrary. The reasons given by the GNCTD to reject the denotification application cannot be said to be arbitrary, particularly, because the MCD went on to say that the primary school should be established, which would cater as a feeder to the existing senior secondary school in the area.
11. As far as the petitioners’ submission with respect to allotment of alternative land is concerned, no doubt, there are observations to that effect in law. At the same time, the Court notices that the LAC whose primaryresponsibility is to determine compensation payable did not premise the recommendations of alternative land upon any existing policy. He rather based it upon the fact that the properties were built-up and also relied upon the MCD resolution. Here again, as far as the MCD is concerned, whilst its resolution cannot be disputed whether it actually paid for any alternative land or has any alternative land is not established. In these circumstances, the claim to alternative land in the absence of a clearly enunciated policy spelling out eligibility conditions and a class of land owners, whose properties are acquired, the Court cannot issue a direction to grant alternative land. That brings the Court to a discussion on the applicability of Section 24(2) of the new Act. By several judgments, it has been established that by virtue of Section 24(2) where acquisition of land has been notified but the process has not been completed, i.e. in the sense that either possession is not taken or compensation not paid within five years, whether awards are made more than five years prior to coming into force of the new Act or whether either possession is not taken of the suit land or compensation not paid within the said five year period, the acquisition is deemed to have lapsed. Now in the present case, there is no dispute that the award was made on 02.09.1972. As far as possession is concerned, again, the petitioners did not dispute having received compensation in 1972-73. The only question which survives consideration is whether possession was taken or not. Here, the petitioners emphasise upon previous proceedings – in terms of the interim order permitting withdrawal dated 07.01.2010; the initial interim order made in W.P.(C) 407/2012 and the plea of the GNCTD in W.P.(C) 407/2012. It is submitted that cumulatively all these establish that compensation within the meaning of law or at least physical possession was never taken. Muchemphasis or stress is laid upon the expression “symbolic” used in para 4 of the GNCTD’s affidavit in W.P.(C) 407/2012.
12. The GNCTD counters this argument with the compensation proceedings of 22.12.1972 and the translated copies – the copies of which have been produced in these proceedings. Significantly, this document was not produced or even relied upon in any of the previous writ petitions – W.P.(C) 3876/1990 and W.P.(C) 407/2012. The petitioners too were aware of these proceedings. The document inter alia reads as follows:
“Possession proceeding in respect of property No.XII/7249 acquired by Award No.28/72-73.
Today on 22/12/72, M/s. Shri Ram Phal Kanoongo along with Ved Singh patwari reached at site of the property No.XII/7249 admeasuring 10951 sq. yards acquired vide Award No.28-72-73 for possession proceedings. M/s Chaman Lal, Kanoongo and Ram Kawar, Patwari were found present at the site on behalf of Municipal Corporation of Delhi. On behalf of owner M/s Girdhari Lal Karan Singh, Shri Man Singh Karta and on behalf of Greysham Company, Shri Govind Singh, Partner were found present at site. Nobody was present at the site on behalf of occupiers on behalf of occupiers at the time of possession proceedings. After taking measurement of this property and after moving the representative of Municipal Corporation of Delhi Shri Chaman Lal Kanoongo around in and outside the property No.XII/7249 measuring 10951 sq. yards along with sper structure and after taking possession, the proprietary possession was handed over to Sh. Chaman Lal Kanoongo. There are twenty-four (24) trees in this property for which compensation has been assessed by the award. There possession was also handed over to Shri Chaman Lal Kannoongo. This possession proceeding was announced in loud voice by beat of drum by Shri Mohan Lal, the watchman of the property. At the time of possession proceeding no hindrance was faced. One copy of this possession proceedings was handedover to Shri Chaman Lal, Kanoongo, Land and Estate Department of Corporation.
Sd/-illegible Sd/-Man Singh 22/12 22/12/72
Sd/-GovindSingh Sd/-Illegible Kgo.LA
sd/-illegible 22-12-72
Sd/-illegiblepat(LA) 22-12-72
Page 10 of 12
Sd/- illegible
Kgo.L&E, MCD/22/12/72”
13. It is immediately evident from a reading of the above document that the possession taken of the property was in absolute terms and not subject to any conditions. Furthermore, late Sh. Man Singh and one of the petitioners, Govind Singh, were parties to these documents and had signed it. As against this, the reliance by the petitioner with respect to the admissions made in the pleadings, in the opinion of the Court, is inconsequential. It is important here to notice that for reasons best known, the GNCTD did not advert to the possession proceedings of 22.12.1972 in the sense that the documents were never part of any of the records in W.P.(C) 3876/1990 and W.P.(C) 407/2012. They have been produced for the first time in answer to W.P.(C) 4432/2015.
14. As to the effect of this documents, the Supreme Court has ruled in DDA v. Sukhbir Singh and Ors. AIR 2016 SC 4275 by falling upon previous judgments in Raghbir Singh Sehrawat v. State of Haryana 2012 (1) SCC 792 and Banda Development Authority v. Moti Lal Agarwal 2011 (5) SCC 394 that there is no fixed criteria or set pattern of acquiring or taking over possession of acquired lands. Quoted with approval, the observations oinBanda Development Authority (supra) visualizing five situations and at the same time stating that they are not exhaustive, in Sukhbir Singh (supra) itself the Court approved the mode of acquisition, i.e. recording that the officials/authorities of the Government had visited the site and recorded the taking over of possession. Having regard to this position in law, the Court is of the opinion that in the present case too, the documents relied upon, i.e. proceedings dated 22.12.1972 rule out the inference that mere symbolic possession is taken.
15. For the foregoing reasons, the Court holds that Section 24(2) of the new Act has no application to the circumstances and facts in these writ petitions. W.P.(C) 407/2012 and W.P.(C) 4432/2015 are, therefore, dismissed.
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