$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 20.07.2017 % PRONOUNCED ON: 30.08.2017 + W.P.(C) 1103/2016 MAHENDRA Petitioner W.P.(C) 1104/2016 DHARMVEER AND ORS Petitioners W.P.(C) 1112/2016 HARICHAND AND ORS Petitioners W.P.(C) 1114/2016 CHANDERMAL AND ORS Petitioners W.P.(C) 7126/2016 VINOD KUMAR & ORS Petitioners versus UNION OF INDIA & ORS Respondents Through: Mr. [ENTITY], Advocate with Mr. [ENTITY] & Mr. [ENTITY], Advocates for the petitioners. Mr.[ENTITY], Standing Counsel with Ms.[ENTITY], Advocate for L&B/LAC in W.P.(C)1103, 1114 & 7126/2016. Mr. [ENTITY] & Ms. [ENTITY], Advocates for DDA in W.P.(C) 1103, 1104, 1112 & 1114/2016. Mr. [ENTITY], Advocate for UOI in W.P.(C) 7126/2016. Ms. [ENTITY], Advocate for L&B/LAC in W.P.(C)1104/2016. Ms. [ENTITY], Advocate for L&B/LAC in W.P.(C)1112/2016. W.P.(C)1103/2016 with connected matters Page 1 of 14 CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] S.RAVINDRA BHAT, J.
1. Common questions of law arise for decision, in these writ petitions. They were heard separately because of the facts, but are disposed of through the present single judgment.
2. All writ petitioners were either original landowners or are their heirs. They claim identical relief in these proceedings, i.e. for directions to the respondents to determine and pay the compensation to the petitioners in terms of provisions of the [ACT] (hereafter "the Act"). The lands involved in all the cases are located at Village Aali, Tehsil Mehrauli District Delhi. The petitioners in [CASE NUMBER], claim ownership of 45/1 (2-
8), 146 (4-16) total measuring of land area 7 Bighas. The petitioners in [CASE NUMBER] claim ownership of Khasra Nos. 45/1 (0-5), 46/1(1 -5), 47(1-3), 48 (3-13), 49(1 -5), 50 (4-00), 51 (0-17), 52 (3-19), i.e. total measuring of land area 16 Bighas 7 biswa. The petitioners in [CASE NUMBER] claim ownership of Khasra Nos. 43(6-4), 44 (4-00) 140(7-
8), 147(7-10), 148(7- 17), 150 (3-1), 152/2 (2-8), 153/2(2- 8), 154(3-
00) 157(4-16) total measuring of land area 48 Bighas 12 biswa. The petitioners in [CASE NUMBER] claim ownership of Khasra Nos.152/1(2 -
8), 153/1(2 -8), 158/1(4- 2), 159/2(0-18), 164/1 (3-00) total measuring of land area 12 Bighas 16 biswa of lands. In [CASE NUMBER], the petitioners claim ownership of Khasra Nos.37/1(1 - 16), 38/1 (00 -18), 142/2( 2-12 ), 39(3-17), 40/2 (2-16) and 143(4-16), total measuring of land area 16 Bighas 15 biswa. These lands shall hereafter be referred to as "suit lands". These lands were notified under [SECTION] of the [ACT] ("the old Act" hereafter) on 16.04.1964. The declaration under [SECTION] of the old Act was made on 22.12.1966. Apparently, due to long drawn out proceedings pending in courts that concerned challenges to the acquisition, awards were made under the old Act; the one dealing with suit lands (Award No. 3) was made on 05.12.1997. A corrigendum to the award, was issued on 10.12.1997.
3. According to the pleadings of the parties, there is no dispute that possession of the suit lands (as well as large tracts of other lands, that were acquired) were taken over inter alia, on 26.05.1998. The petitioners, as well as other land owners were paid the compensation based on market value assessment of the acquired lands.
4. The petitioners argue and claim that by virtue of [SECTION] of the Act, which came into force on 01.01.2014, they are entitled to compensation under the new regime, i.e., the 2014 Act, because majority of the land owners (whose properties were subject to acquisition) have not, so far, been paid compensation. The basis for this argument is the structure of [SECTION], especially the [SECTION]. It is contended that on a plain reading of the text of the provision, though petitioners have received compensation and have been dispossessed of their lands, fresh compensation determination under the new Act is necessary.
5. Mr. [ENTITY], learned counsel argues that the petitioners are entitled to the benefit of [SECTION] and resultantly, the higher compensation under the new Act. It is argued that the provision clearly directs the grant of compensation under the new Act to all the beneficiaries specified in the [SECTION] notification issued under the old Act, if the compensation for the majority of land holders is not deposited in their account. It is submitted that though the Award was made on 05.12.1997, the compensation in respect of the majority of landholders was not deposited in the account of the beneficiaries. It is stated that in view of the provisions of [SECTION] of the Act of 2013, the petitioners would be entitled to receive compensation under the new Act. On a plain reading and interpretation of the said provision, the court should hold that the petitioners are entitled to increased compensation, regardless of whether they were given compensation under the old law.
6. The respondents, represented by Mr. [ENTITY], on the other hand argued that the decision in [PRECEDENT] by the Supreme Court considered the question of lapsing of proceedings initiated under the old Act, after the [ACT] was brought into force with effect from 01.01.2014. The court held that if either compensation is not paid or possession of the acquired lands is not taken, the acquisition would be deemed to have lapsed. Mr. [ENTITY] submits that the [SECTION] of the new Act, cannot be characterized as relating to [SECTION]; rather, it pertains to [SECTION].
7. [SECTION] reads as follows:
24. Land acquisition process under [ACT] shall be deemed to have lapsed in certain cases -
(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the [ACT],
(a) where no award under [SECTION] of the said [ACT] has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) where an award under said [SECTION] has been made, then such proceedings shall continue under the provisions of the said [ACT], as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the [ACT], where an award under the said [SECTION] has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under [SECTION] of the said [ACT], shall be entitled to compensation in accordance with the provisions of this Act.
Provided further that in computing the period referred to in this sub-section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction issued by any court or the period specified in the award of a tribunal for taking possession or such period where possession has been taken but the compensation lying deposited in a court or in any designated account maintained for this purpose shall be excluded.
8. A Division Bench of this court, in its previous ruling in [PRECEDENT] observed as follows:
where the Awards have been made more than five years prior to the commencement of the Act, [SECTION] would have applicability, subject to the other conditions being fulfilled. But, in cases where the Awards have been made within five years of the commencement of the [ACT], [SECTION] would not apply. It is also clear that once the conditions of [SECTION] are met, the acquisition itself lapses and therefore no occasion would arise for invoking the first proviso which is set out after [SECTION]. This is so because the first proviso entails a situation where the acquisition is saved but the compensation is awarded under the [ACT]. The proviso cannot blow life into the acquisition which has lapsed under the main provision of [SECTION] of the [ACT]. It is for this reason that we think that the first proviso which has been placed after [SECTION] is not really a proviso to [SECTION] but, a [SECTION](1)(b). The said first proviso and [SECTION] can easily be read together. [SECTION] in effect relates to all cases where awards have been under the 1894 Act except those which are covered under [SECTION]. Clearly, awards made less than five years prior to the commencement of the [ACT] would fall under [SECTION]. As such, the general rule in such cases is that the provisions of the 1894 Act would continue to be applicable, as if the 1894 Act had not been repealed. However, the said first proviso carved out an exception to this general rule by providing that in cases where compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under [SECTION] of the 1894 Act shall be entitled to compensation in accordance with the provisions of the [ACT]. This is a provision for the benefit of landowners inasmuch as even in cases of completed acquisitions, if the conditions stipulated under the said first proviso stand satisfied, the compensation would have to be provided under the more beneficial provisions of the [ACT].
8. Thus, while the said first proviso can harmoniously exist when read as a [SECTION](1)(b), it cannot so exist when sought to be read as a [SECTION](2) of the [ACT].
9. In [PRECEDENT] (supra) while dealing with the said first proviso after [SECTION] of the [ACT], the Supreme Court observed as under:-
11. There is nothing in the language of the proviso to restrict the meaning of the words used in [SECTION] mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years' old but the physical possession of the land has not been taken over or the compensation has not been paid. The law is trite that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms, as held by Privy Council in the case of Madras and [PRECEDENT] by this Court in the case of C.I.T. v. Indo Mercantile Bank Ltd. AIR1959SC713
10. In [PRECEDENT] (supra) this Court also had occasion to deal with submissions with regard to the said first proviso. This Court observed as under:
7. Furthermore, the proviso after [SECTION] of the [ACT] does not, in any manner, restrict the meanings of the words used in [SECTION] which clearly mandate that the proceedings shall be deemed to have lapsed if the award has been made five years or more prior to the commencement of the [ACT] but the physical possession of the land has not been taken over or the compensation has not been paid. The Supreme Court in [PRECEDENT] (supra) specifically dealt with the proviso and came to the above conclusion and in doing so also noted that when the main enactment is clear and unambiguous, a proviso can have no effect so as to exclude from the main enactment by implication what clearly falls within its express terms.
8. Mr [ENTITY], senior advocate, appearing for the Land Acquisition Collector, sought to distinguish the Supreme Court decision in [PRECEDENT] (supra) by contending that the question before the Supreme Court in that case was limited to the expression compensation has not been paid' as appearing in [SECTION] of the [ACT]. We are afraid we cannot read any such limitation into the clear and unequivocal observations of the Supreme Court which have been set out above. Moreover, the same have been reiterated and reinforced by the Supreme Court in its subsequent decisions in [PRECEDENT] (supra) and [PRECEDENT] (supra).
9. Mr. [ENTITY] also sought to contend that the proviso after [SECTION] of the [ACT] ought to be construed as a saving clause. If so construed, the proviso saves the position existing on the commencement of the [ACT], implying thereby that if the majority of the landholders have received the compensation then the 1894 Act would apply. If not, then all would be entitled to compensation under the [ACT]. Such an argument has to be stated to be rejected as it runs contrary to the clear provisions of deemed lapsing contained in [SECTION] of the [ACT]. As held in [PRECEDENT] (supra) there is nothing in the language of the proviso to restrict the meaning of the words used in [SECTION] mandating that the proceedings shall be deemed to have lapsed if the award is five years or more than five years' old but the physical possession of the land has not been taken over or the compensation has not been paid.
10. Mr. [ENTITY], senior advocate, appearing on behalf of the DDA sought to argue that the proviso would have to be considered even in cases which clearly fall within [SECTION] of the [ACT] because there is a colon which separates the main part of [SECTION] and the proviso. It was contended that the proviso, therefore, has to be read as part of [SECTION] and not as a proviso. We are afraid that this argument is also not available to the respondents in view of the clear conclusion of law set out by the Supreme Court in the case of [PRECEDENT] (supra). Even otherwise, the argument is merely to be stated to be rejected.
11. Coming back to the facts in the present petitions, we find that the Awards were made within the period of five years prior to the commencement of the [ACT]. Clearly, [SECTION] does not apply. On the other hand, [SECTION] would apply. But, the exception carved out by the first proviso which has been placed after [SECTION] would also apply. This is so because compensation in respect of the majority of land holdings has not been deposited in the account of the beneficiaries. This is an admitted fact. The consequence of this would be that all the beneficiaries which include the petitioners herein who have been specified in the notification under [SECTION] of the 1894 Act would be entitled to compensation in accordance to the provisions of the [ACT]. It is held accordingly.
9. A similar reasoning was echoed by a Full Bench of the Bombay High Court in [PRECEDENT] where it was observed as follows:
5. The provision of clause (a) of sub-section (1) of [SECTION] clearly spells out the intention of the Legislature to apply all the provisions of the [ACT] only in relation to the determination of compensation where no award has been made under [SECTION] of the 1894 Act before coming into force of the [ACT].
Similarly, the intention of the Legislature to continue to apply the provisions for determination of compensation under the 1894 Act where an award under [SECTION] of the 1894 Act has been made, is also clearly spelt out under clause (b) therein, and in such a case, the proceedings shall continue as if the 1894 Act has not been repealed. Thus, if no award is made under [SECTION] of the 1894 Act before commencement of the [ACT], the provisions of the [ACT] in relation to the payment of compensation shall apply, and if an award under [SECTION] is passed prior to coming into force of the [ACT], the compensation payable shall be determined as per the 1894 Act, as if it is not repealed.
6. [SECTION] deals only with the lapsing of proceedings initiated under the 1894 Act, leaving the choice of the appropriate Government open to initiate the proceedings of such land acquisition afresh in accordance with the provisions of the [ACT]. This provision enacts that in relation to the land acquisition proceedings initiated under the 1894 Act, where an award has been made five years or more prior to the commencement of the [ACT], and either of the two contingencies is satisfied, viz. (i) that the physical possession of the land has not been taken, or (ii) that the compensation has not been paid, such acquisition proceedings shall lapse.
7. The proviso below [SECTION] deals with a situation where in respect of acquisition initiated under the 1894 Act, an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition in [SECTION] notification become entitled to compensation under the [ACT].
8. The Scheme of [SECTION] of the [ACT] need to be seen. The provisions of the 1894 Act are repealed by the [ACT] with effect from 1-1-2014 and, therefore, it was necessary to take care of the land acquisition proceedings initiated under the 1894 Act, which were pending at different stages. [SECTION] is enacted to take care of all such situations with an intention to balance the conflicting interest of the land holders and the State and it has been given overriding effect over all the provisions of the [ACT]. [SECTION] divides all such proceedings in three categories-
(A) the proceedings to which all the provisions relating to the determination of compensation under the [ACT] shall apply, covered by clause (a) of sub-section (1), (B) where the provisions of the 1894 Act relating to the determination of compensation shall apply, as contemplated under clause (b) of sub-section (1), and (C) where the land acquisition proceedings initiated under the 1894 Act shall lapse in entirety in terms of [SECTION]. Categories (A) and (B) are covered by sub-section (1), whereas category (C) is covered by sub-section (2). The provisions of sub-sections (1) and (2) operate in different fields. Sub-section (1) relates to applicability of the provisions of the [ACT] for determination of compensation, whereas [SECTION] deals with lapsing of land acquisition proceedings initiated under the 1894 Act.
9. The provision of clause (b) of sub-section (1) of [SECTION] of the [ACT] covers the cases where an award under [SECTION] of the 1894 Act was made within a period of five years prior to the commencement of the [ACT]. The object of giving an overriding effect to the provision of sub-section (2) is to exclude the cases where an award under [SECTION] of 1894 Act was made within a period of five years prior to the date of commencement of the [ACT] from lapsing of acquisition. The period of five years or more prior to the commencement of the [ACT], specified under [SECTION] of the [ACT], cannot, therefore, be imported or read in clause (b) of sub-section (1). The effect of such reading would be three-told, viz. (A) lapsing of the entire acquisition proceedings initiated under the 1894 Act upon establishing that the compensation in respect of a majority of land holdings has not been deposited in the account of beneficiaries, (B) the latter part of the proviso making the beneficiaries entitled to the compensation as per the [ACT] shall become redundant, and (C) the protection provided to save lapsing of acquisition in its entirety shall be lost.
10. The proviso below sub-section (2) deals with the subject of applicability of the provisions of the [ACT] relating to the determination of compensation covered by [SECTION] therein, subject to the satisfaction of condition that the compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries. In our view, the proviso has to be read as an exception to the provision of [SECTION] of the [ACT] so as to advance the intention of the Legislature to strike the balance of conflicting interest between the land holders and the State, and to award a fair compensation.
10. This court is of the opinion that the location or positioning of the proviso, no doubt prima facie suggests that it is a "carve out" of a part of the field of [SECTION]. However, location alone is not determinative. The scheme of the provision is such that [SECTION] lists out the eventualities; [SECTION] is an exception, only as regards matters provided for, i.e. where possession of land is not taken or where compensation is not "paid". Significantly the statutory fiat of lapsing of the acquisition is followed by the words and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act. These suggest Parliamentary intent that as regards the field of lapsing of acquisition, [SECTION] is a complete provision. So viewed, the conclusions of the Bombay High Court in [PRECEDENT] (supra) and of this court, in [PRECEDENT] (supra) were sound. This court, therefore agrees with the observations made in those judgments.
11. In the present petitions, possession of the lands was taken nearly two decades ago; compensation too was determined and paid at that time. If the petitioners' contentions were to be accepted, there would be no finality to the exercise of compensation determination, because in every case, the court would be requiring the acquiring authorities to satisfy it about when and to what extent landowners were paid their adjudicated compensation. In the present case, the respondents have also averred that all land owners who had laid claim to compensation and participated in the proceedings, were paid the sums due to them and that in respect of others, compensation was determined. Having regard to the opinion expressed in the preceding portions of this judgment, these petitions are to fail, inasmuch as [SECTION] would not apply. All writ petitions, with pending applications are therefore, dismissed without order on costs.
[ENTITY] (JUDGE) [ENTITY] (JUDGE) AUGUST 30, 2017