|CITATION||Civil Writ Petition No 2806 & 2807-2934 of 2004|
|COURT||High Court of Delhi|
|JUDGES/CORAM||Justice B.D. Ahmed and Justice Siddharth Mridul|
|DATE OF JUDGEMENT||27.05.2014|
The Division Bench of the Hon’ble Delhi High Court comprising of Justice Badar Durrez Ahmed and Justice Siddharth Mridul in Jagjit Singh v.Union of India dealt with a number of writ petitions involving a common question of law regarding the application of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (‘Act’).
The facts of the case are as follows: In the instant case, the petitioners urged that the acquisition of their land has lapsed on account of applicability of non-obstante provision contained in Section 24(2) of the Act of 2013 which clearly stipulates that where an award under Section 11 of the old Act has been made five years or more prior to the commencement of the new 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. It was an admitted position in view of the affidavit dated 27.05.2014 that possession has not been taken and compensation has also not been paid. Furthermore, the award in each of these cases has been made more than 5 years prior to the commencement of the new Act (i.e., 01.01.2014).
The main issue in the case was: whether the acquisition of the petitioner’s lands lapsed on account of applicability of section 24(2) of the new Act of 2013.
Arguments on behalf of the Petitioner
The learned counsel on behalf of the petitioner contended that the three conditions for attracting the deeming provisions of Section 24(2) of the new Act of 2013 i.e. (i) the award should have been made under section 11 of the old Act, more than five years prior to the commencement of the new act (ii) physical possession of the land in question should not have been taken and (iii) the compensation should not have been paid, have been satisfied and, therefore, all proceedings towards the acquisition of land under the Land Acquisition Act, 1894 ( “the old Act”) ought to be deemed to have lapsed.
Secondly, reliance was placed on the judgment of State of Bombay v. Pandurang Vinayak Chaphalkar and Ors.In support of his contention that Section 24(2) is a deeming provision that creates a legal fiction and it ought to be read as it is without worrying about the inevitable corollaries.
Arguments on behalf of Respondent
The learned counsel appearing on behalf of the respondent submitted that although it is an admitted position that the award in each of these petitions has been made more than five years prior to the commencement of the new Act and that the compensation has not been paid and also that the possession has not been taken, the petitioners are yet not entitled to the benefit of the deeming provisions under section 24 (2) of the new Act since possession in these cases could not be taken due to interim orders passed by this Court and because of the fact that possession could not be taken, compensation has also not been paid. Thus, no party can be put at 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.
Summary of court decision and judgment
In light of arguments advanced and authorities cited the Division Bench of the Delhi High Court after due application of mind to the facts of the case came to the conclusion that since all the conditions prescribed by Section 24(2) of the Act of 2013 stood fulfilled the contention of the learned counsel for the respondent cannot be accepted and therefore the petitioners were entitled to succeed in view of the deeming provisions of Section 24(2) of the new Act. Hence the acquisition proceedings in all these writ petitions shall be deemed to have lapsed in respect of the petitioner’s lands.
At the outset, the Court made a careful and detailed analysis of Section 24(2) of the Act of 2013. Ld. Judges took note of the three-part test concerning the application of the said section namely; first, the award should have been made under Section 11 of the 1984 Act, secondly, physical possession of the land in question should not have been taken and lastly, the compensation should not have been paid.
After determining the fulfillment of the above-mentioned conditions the bench turned its focus to Section 19(7) of the new act to bring to light the intention of the legislature which explicitly provides for excluding the period for which the stay/injunction was granted by the court computing the period referred to in this sub-section. Hence, if the legislature wanted to qualify the conditions specified in Section 24(2) 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 spelled out.
Subsequently, the court took cognizance of the principle of statutory fiction to reach the conclusion that 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 24(2) of the new Act.
In the instant case, the Hon’ble court in arriving at the decision made a careful analysis of three decisions of the Hon’ble Supreme Court namely Pune Municipal Corporation and Anr. v. Harakchand Mistrimal Solanki & Ors., Bharat Kumar v. State of Haryana &Anr. Union of India v. Shiv Raj and Ors. wherein it was held that Section 24(2) of the new Act was the beneficial provision and the interim orders earlier been passed by the Court does not prevent the lapse of land acquisition proceedings where the award has been made five years or more prior to the commencement of 2013 Act and possession of the land is not taken or compensation has not been paid.
An appreciable factor of the decision is that it beautifully explains the concept of statutory fiction by referring to the decision of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council wherein he observed that “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.”
The present decision had settled the position regarding the application of Section 24(2) of the Act of 2013. Subsequently in Yogesh Neema and others v. State of Madhya Pradesh and others a two-Judge Bench doubting the decision rendered in SreeBalaji Nagar Residential Assn. v. State of Tamil Nadu on whether the period during which the award had remained stayed should be excluded for the purposes of consideration of the provisions of section 24(2) of the 2013 Act referred it to a larger bench. The question again arose in Indore Development Authority vs. Shailendra (Dead) through Lrs. &Ors. Due to the contrary position taken by the Hon’ble Supreme Court in State of Haryana v. M/s GD Goenkathe matter is currently pending before a five-judge bench of the Hon’ble Supreme Court.
AIR 1953 SC 244.
 Pune Municipal Corporation and Anr.v. Harakchand Mistrimal Solanki & Ors. (2014) 3 SCC 183.
 Bharat Kumar v. State of Haryana &Anr. (2014) 3 SCC393.
 Union of India v. Shiv Raj and Ors Civil Appeal Nos.5478-5483/2014.
 East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952) A.C. 109.
 YogeshNeema and others v. State of Madhya Pradesh and others (2016) 6 SCC 387.
 SreeBalaji Nagar Residential Assn. v. State of Tamil Nadu, (2015) 3 SCC 353.
 Indore Develpment Authority vs. Shailendra (Dead) through Lrs. &Ors C.A.No.20982 of 2017 @ SLP(C)No.2131 of 2016.
 State of Haryana v. M/s GD Goenka SLP(C)CC No.8453/2017.