$~26 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 28.07.2015 + W.P.(C) 2624/2015 & CM 4688/2015 SUBHASH GUPTA Petitioner versus UNION OF INDIA & ORS. Respondents Advocates who appeared in this case:- For the Petitioner : Mr [ENTITY] with Ms [ENTITY] For the Respondent no.1 : Mr [ENTITY] with Mr [ENTITY] and Mr [ENTITY]. For the Respondent L&B/LAC : Mr [ENTITY] CORAM:- HON'BLE MR JUSTICE [ENTITY] HON'BLE MR JUSTICE [ENTITY] JUDGMENT
[ENTITY], J (ORAL)
1. The counter-affidavit handed over by Mr [ENTITY] on behalf of the respondent No.2 is taken on record. The learned counsel for the petitioner does not wish to file any rejoinder-affidavit inasmuch all the necessary averments are contained in the writ petition.
2. The petitioner seeks the benefit of [SECTION] of the [ACT] (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, which is the subject matter of the present writ petition, ought to be deemed to have lapsed in view of [SECTION] of the 2013 Act.
3. The Award under the [ACT] (hereinafter referred to as 'the 1894 Act') was made vide Award No.6/2005-06 dated 12.07.2005 and it was in respect of, inter alia, the petitioner's land comprised in Khasra No.47/24 min., measuring 2 bighas, in the revenue estate of village Pehladpur Banger, New Delhi.
4. It is an admitted position that the physical possession of the subject land has not been taken by the land acquiring agency. However, the learned counsel for the respondents contend that the physical possession could not be taken because of the operation of a stay order passed in [CASE NUMBER]. The said stay order was vacated on 09.07.2007. Thereafter, a Special Leave Petition was filed before the Supreme Court and the Supreme Court initially granted stay which was vacated on 11.02.2015 when the said Special Leave Petition was dismissed by the Supreme Court with liberty to the petitioner to file a writ petition seeking the benefit of [SECTION] of the 2013 Act.
5. This aspect of the matter concerning the submission that possession could not be taken because of the operation of the stay order and that in such a situation the respondents should not be prejudiced, was considered by this Court in the case of [PRECEDENT] and other connected matters which were decided by this Court on 27.05.2014. In that decision, this Court observed as under:-
"8. The learned counsel for the respondents also submitted that no party can be put to a disadvantage because of an act of the Court. Since this Court had passed interim orders, it cannot work to the disadvantage of the respondents.
9. We have already set out [SECTION] of the new Act in its entirety. It is evident that [SECTION] of the new Act is a non-obstante provision. The conditions which are required to be satisfied before the deeming provision is triggered are:-
(i) The award should have been made under [SECTION] of the old Act, more than five years prior to the commencement of the new act; and
(ii) Physical possession of the land in question should not have been taken; or
(iii) The compensation should not have been paid.
These conditions are unqualified. It does not matter as to what was the reason behind the non-payment of compensation or for not taking possession. If the legislature wanted to qualify the above conditions by excluding the period during which the proceedings of acquisition of land were held up on account of stay or injunction by way of an order of a Court, it could have been expressly spelt out. In fact, whenever the legislature thought that it was necessary to spell out such an intention, it did. An example of this is to be found in the first proviso to [SECTION] of the new Act which is as under:-
"19(7) Provided that in computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded."
10. Furthermore, it would be instructive to refer to the decision of the Supreme Court in the case of [PRECEDENT] (supra) which has been relied upon by Mr [ENTITY], the learned senior counsel appearing on behalf of the petitioners. In that decision the purpose and meaning of a statutory fiction was being considered. While doing so, the Supreme Court referred to an English decision in the case of [PRECEDENT] and in particular to an observation of Lord [ENTITY] which was to the following effect:-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statue says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
11. Following the above observation, it is obvious that the deeming provision of [SECTION] is a legal fiction which is a created and an imagined situation. We ought not to be concerned with the inevitable corollaries that may flow out of it unless there is a clear prohibition in the statute itself. Once the state of affairs is imagined as real, the consequences and instances would also have to be imagined as real. Therefore, the fact that the possession could not have been taken by the respondents because of interim orders of the Court, would not in any way prevent this Court from imagining the state of affairs stipulated in [SECTION] of the new Act. The only conditions that are required for the deeming provisions to be triggered are that the award must have been made five years or more prior to the commencement of the new Act and that either physical possession of the land has not been taken or that the compensation has not been paid. In fact in these writ petitions all the conditions stands satisfied. Therefore, the contention of the learned counsel for the respondent cannot be accepted."
6. As a consequence, it has to be held that the respondents did not take physical possession of the subject land. With regard to the element of compensation, it is an admitted position that compensation has not been paid in respect of the said land. The Award was also made more than five years prior to the commencement of the 2013 Act. Therefore, all the ingredients of [SECTION] of the 2013 Act as interpreted by the Supreme Court and this Court in the following decisions stand satisfied:-
(1) [PRECEDENT];
(2) [PRECEDENT];
(3) [PRECEDENT] decided on 10.09.2014;
(4) [PRECEDENT] decided on 12.09.2014 by this Court; and (5) [PRECEDENT] decided on 27.05.2014.
7. The respondents also seek to invoke the second Proviso to [SECTION] of the 2013 Act, which was introduced by virtue of the [ACT] (hereinafter referred to as the said Ordinance).
8. So far as the applicability of the second Proviso to [SECTION] of the 2013 Act is concerned, the same cannot be relied upon by the respondents inasmuch as it is prospective in nature and does not take away vested rights. In respect of the second proviso introduced by virtue of the [ACT], the Supreme Court in a recent decision in [PRECEDENT]. decided on 12.01.2015 in [CASE NUMBER], held the same to be prospective and not retrospective. The Supreme Court observed as under:-
"The right conferred to the land holders / owners of the acquired land under [SECTION] of the Act is the statutory right and, therefore, the said right cannot be taken away by an Ordinance by inserting proviso to the abovesaid sub-section without giving retrospective effect to the same."
9. The same was reinforced by the Supreme Court in [PRECEDENT]. [CASE NUMBER] decided on 22.01.2015. The same would apply to the said Ordinance of 2015.
10. From the above decisions, it is evident that the said Ordinance is prospective in nature and the rights created in favour of the petitioner as on 01.01.2014 by virtue of the 2013 Act are undisturbed by the second Proviso to [SECTION] of the 2013 Act, which has been introduced by the said Ordinance.
11. As a result, the petitioner is 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.
12. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs.
[ENTITY], J JULY 28, 2015 [ENTITY], J kb