NARESH KUMAR Vs. UNION OF INDIA & ORS

JUDGEMENT

(1.) This is a petition under Article 226 of Constitution of India filed by the petitioner seeking a declaration that the acquisition proceedings with respect to land bearing Khasra No.'s 78//21, 22, 23, 79//25, 89//1, 90//11, 12 situated in the revenue estate of village Sultanpur Dabas, Delhi (hereinafter referred as the 'subject land') stand lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as '2013 Act') as the actual physical possession of the subject land has not been taken.

(2.) The necessary facts to be noticed for disposal of this writ petition are that a Section 4 notification of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was issued on 25.08.2005. Section 6 declaration was made on 10.07.2006.

(3.) Mr. Rajesh Gupta, counsel for the petitioner submits that although compensation stands paid to the petitioner but the petitioner continues to enjoy the actual physical possession over the subject land. Reliance is placed on Section 24 (2) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "2013 Act") in support of his submission that the onus to prove that actual physical possession was taken is on the LAC whereas the LAC has failed to discharge its onus to show that actual physical possession was taken as per law. He submits that reliance placed on the Kabza Karyawahi can be of no benefit to the respondents as the Kabza Karyawahi does not establish that the notice was given to the land owner prior to taking possession over the land which was in cultivatory possession of the petitioner. It is contended that this is a mandatory requirement and in the absence of the respondents having complied with the same, it cannot be said that the physical possession of the land was taken by the respondents and thus, the case of the petitioner would be covered under the provisions of Section 24 (2) of 2013 Act as one of the two contingencies mentioned in the said provision has not been complied with. Elaborating his arguments further, Mr. Gupta submits that the LAC has miserably failed to discharge the onus of having taken actual physical possession as the LAC has not complied with the settled provisions of law and the judgments of the Supreme court wherein the term "actual physical possession" and the manner in which possession is to be taken have been elaborately discussed. Mr. Gupta also contends that merely because the petitioner has executed documents to show that actual physical possession was taken, that would not bind the petitioner and the said documents would not come in the way of the rights of the petitioner in view of the 2013 Act. Mr. Gupta further contends that series of documents signed by the petitioner giving up all his rights to challenge the acquisition proceedings in future were signed prior to coming into effect of the 2013 Act and the effect of the 2013 Act is that the acquisition proceedings pertaining to the subject lands would automatically lapse in the absence of the LAC having produced any document to show that they had taken actual physical possession of the subject lands in September, 2011.