Delhi High Court
Arun Kumar Dawar vs Union Of India (Uoi) And Ors. [Along With ... on 11 May, 2006
Author: Swatanter Kumar
Bench: Swatanter Kumar, S.L. Bhayana
JUDGMENT Swatanter Kumar, J.
1. By this order, we will dispose of above 8 Regular First Appeals preferred under Section 96 read with Order 41 Rule 1 CPC all against the judgment and decree dated 3rd May, 2005 passed by learned Additional District Judge, Delhi.
2. For the sake of brevity and to avoid intermingling of facts, we would be referring to the facts of the case of Arun Kumar Dawar. The father of the plaintiff namely Mr. M.R. Dawar was given a land bearing plot No. 3/2 Industrial Area, Najafgarh Road, New Delhi admeasuring 611.29 sq.yards vide perpetual lease deed dated 31.7.1969. A property was constructed thereupon and the father of the plaintiff started business of sale of timber therein. After the death of his father, the plaintiff took over the business. This is stated to be the only source of income. This shop was allotted to the plaintiff and his predecessor in interest by way of compensation as he was a refugee from Pakistan. The plaintiff made huge investments in developing the said business. The defendants, in the guise of widening the road, issued a show cause notice including notice dated 6th September, 2002 directing the plaintiff to hand over peaceful possession of the part of the land bearing No. 3/2 Industrial Area, Kirti Nagar, New Delhi to the officers of the defendants on 23rd September, 2002. For carrying out this project, no acquisition proceedings were taken and it was stated that land, which is required for public purpose, could be taken by the defendants(Lesser) in terms of Clause 1(xii) of the lease deed by which the property was allotted to the plaintiff. Representation was moved collectively by the persons on 28th September, 2002 but all these contentions were rejected and an order dated 7th October, 2002 was passed to re-enter the property to that extent. According to the plaintiffs, these actions of the defendants were illegal, unjustified and notice was beyond the scope and purview of the lease deed and as such, they filed suits in the High Court. These suits were transferred to the Court of District Judge, Delhi because the valuation of the suits was less than Rs. 20 lakhs.
3. Various authorities filed written statements/amended written statements to the plaints/amended plaints filed by the plaintiffs. It was stated that the notices were issued in terms of the lease deed and orders passed by the authorities were in consonance with the lease deed and they were entitled to take possession of the property as per the lease deed even on as is where is basis. It was prayed that the suits of the plaintiffs be dismissed. Learned trial Court vide its judgment and decree dated 3rd May, 2005 held that the suits of the plaintiffs were not maintainable and the suits were dismissed while leaving the parties to bear their own costs. This judgment and decree of the trial Court is challenged by way of present appeals. In the amended plaint before the trial Court, the plaintiffs had asked for a decree for prohibitory as well as mandatory injunction. They prayed that the notice dated 6th September, 2002 and order dated 7th October, 2002 be declared as null and void and their possession and interest in the property be not disturbed by the defendants. Lastly, it was prayed that a further mandatory injunction be passed against the defendants directing the defendants to adopt the established procedure for determining the compensation payable to them in accordance with the provisions of Land Acquisition Act and the defendants should determine the compensation payable to them and pay the so determined compensation for taking away their properties. As far as the first two reliefs in relation to declaration and prohibitory injunction are concerned, they have been rendered infructuous as the road has already been widened. The possession of the land was taken by the department.
4. Learned Counsel appearing for the appellants fairly stated at the bar and upon instructions from his clients that both these reliefs are not pressed before this Court and would also not be pressed before any other Court. These reliefs even according to him have been rendered infructuous and would not be claimed by the appellants, of course, subject to their contention that they are entitled to receive the compensation as claimed by them in the suits and even in these appeals.
5. During the course of hearing of these appeals, we had called upon the learned Counsel appearing for the respondents (various authorities) to seek instructions whether the judgment and decree of the trial Court could be set aside and matter be remanded back for adjudication only in regard to determination of enhanced compensation, if any, payable to the claimants, and that too without prejudice to the rights and contentions of the parties. Learned Counsel appearing for the parties then on the adjourned date had stated and we must say very fairly that some remedy should be available to the appellants to raise the issue of compensation and claim the said amount, if they are entitled to in law. The parties are id idem at least on this issue that the decree has to be set aside by this Court and the suits to be remanded back to the trial court for adjudication afresh in accordance with law on this limited issue. Thus, it is not necessary for us to deliberate on this issue any further.
6. Another aspect of the case is that the appellants claim that no compensation has been paid to them despite the fact that the same has been determined by the authorities. It is further not in dispute that in the case of 3 of the appellants, 50% of the determined compensation has been deposited in this Court while no monies have been deposited or paid in relation to other 5 appellants. According to the respondents, the compensation has not been disbursed to the claimants because certain amount has to be deducted on account of payment of misuse charges, other charges payable under the terms of the lease deed and most pertinently unearned increase, which has to be deducted keeping in view the fact that 50% of the awarded compensation has to be deducted on account of unearned increase. This is disputed by counsel appearing for the appellants and according to him, the entire amount of awarded compensation should be paid to them without any deduction or restriction.
7. Having heard leaned counsel for the parties on this aspect of the case at some length, we are of the considered view that the Court would have to work out an interim arrangement on some just and equitable basis. There is no dispute to the fact that the land, which had been given to them under the terms of the lease deed, has been taken away and which was being used for a commercial purpose. The authorities have determined the compensation. However, the same has not been disbursed to them as yet. In order to balance the equities between the parties, we pass the following directions:
(a) 50% of the compensation, which has determined by the respondents, shall be paid to the appellants during the pendency of the suits.
(b) The remaining 50% compensation would not be paid to the appellants at this stage and would be paid upon the decision of the suits and in terms of the decree, which may finally be passed by the trial court.
(c) The questions whether or not the respondents are entitled to deduct unearned increase charges and whether or not the appellants are entitled to any enhanced compensation shall have to be decided after the parties have been permitted to lead evidence.
Thus, the parties would be at liberty to lead documentary and oral evidence before the trial Court on this aspect.
(d) The trial Court shall also go into the question whether the plaintiffs/appellants before this Court are liable to pay any other charges as claimed by the respondents on account of misuse or any other charges, which are covered under the lease deed executed between the parties.
(e) The question of awarding higher compensation including the maintainability of such a claim would be examined by the trial Court and the present order is without prejudice to the rights and contentions of the parties and would be of no consequence for completion of the trial and the view that the trial Court may take on the basis of such adjudication.
(f) For the reasons aforestated and the common stand taken by the parties before s, we partially allow these appeals, set aside the judgment and decree of the trial court dated 3rd May, 2005 and remand the matter back to the trial court for adjudication afresh in accordance with law on the limited aspect as aforestated. The suit of the plaintiff in regard to declaration and prohibitory injunction is dismissed as not pressed while the relief of entitlement and quantum in regard to higher compensation is remitted to the trial Court for adjudication in accordance with law. The parties would be at liberty to take up such pleas and objections as may be permissible to them in accordance with law.
8. We do express a pious hope that the learned trial Court would dispose of the suits as expeditiously as possible and in any case not later than 6 months. The appeals are disposed of in the above terms while leaving the parties to bear their own costs. The parties would appear before the trial Court on 29th May, 2006.