Delhi District Court
Union Of India vs Sh. Chandu Lal S/O Sh. Rai Saheb Girdhari ... on 22 July, 2013
IN THE COURT OF AJAY GOEL: ADDL. DISTRICT JUDGE-12,
DISTRICT-CENTRAL: DELHI.
Unique Identification No. 02401C433742002
LAC No. 107/02/06/03
Award No. 02/1999-2000
Village : Civil Station
In the Matter of:
Union of India
Through Land Acquisition Collector,
Delhi. .....Petitioner.
VERSUS
1. Sh. Chandu Lal S/o Sh. Rai Saheb Girdhari Lal,
2. Smt. Usha Narain, (Since deceased)
though Legal Heirs
(i) Ms. Sunita Narain (Daughter)
D/o Late Smt. Usha Narain
R/o A-17, Green Park,
New Delhi.
(ii) Smt. Nisha Jain (Daughter)
W/o Sanjay Jain,
D/o Late Smt. Usha Narain
R/o A-17, Green Park,
New Delhi.
(iii) Ms. Surekha Narain (Daughter)
D/o Late Smt. Usha Narain
CS-107/02/06/03 Page No.1/17
R/o A-17, Green Park,
New Delhi.
(iv) MS. Urvashi Narain, (Daughter)
D/o Late Smt. Usha Narain
R/o A-17, Green Park,
New Delhi.
3. Sh. Rajeshwar Prasad, (Deceased)
Through Legal Heirs
(i) Sh. Kamal Kumar
S/o Late Sh. Rajeshwar Prasad
R/o A-5, Hauz Khas,
New Delhi.
(ii) Sh. Sajal Kumar Gupta
S/o Late Sh. Rajeshwar Prasad
R/o T-3, Green Park Extn.,
New Delhi.
(iii) Smt. Manju Garg,
W/o Sh. Raj Kumar Garg,
D/o Late Sh. Rajeshwar Prasad
R/o Garg Bhawan, Civil Lines
Kanpur, U.P.
4. Sh. Vijay Prakash
5. Smt. Bimla Devi, W/o Late Sh. Mahesh Chand
6. Sh. Ajay Kumar, S/o Late Sh. Mahesh Chand
7. Sh. Sanjay Kumar, S/o Late Sh. Mahesh Chand
8. Smt. Shakuntala Devi
9. Sh. Suresh Chand,
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10.Sh. Mahesh Chand (Deceased)
Through Legal Heirs,
(i) Sh. Sharad Chand Gupta
S/o Late Sh. Mahesh Chand
R/o B-1112, Green Field Colony,
Faridabad, Haryana,
(ii) Sh. Naveen Chand Gupta,
S/o Late Sh. Mahesh Chand
R/o B-967, Green Field Colony,
Faridabad, Haryana,
(iii) Sh. Deepak Chand Gupta,
S/o Late Sh. Mahesh Chand
R/o B-968, Green Field Colony,
Faridabad, Haryana,
11.Smt. Ram Dulari,
12.Anand Vihar Owners Assoiation (Regd).
All R/o 16, Alipur Road, Delhi. ...Interested Persons.
Award Announced on: 27.07.1999
Section 4 Notification dated: 12.06.1997
Section 6 Declaration dated: 28.07.1997
Date of Institution: 05.03.2003
Date of Assignment to this court: 06.08.2012
Date of Arguments: 15.07.2013
Date of Order: 22.07.2013
JUDGMENT
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1. Vide award No. 02/1999-2000, part of land of village Civil Station was acquired by the Govt. for public purpose. Compensation in respect of total land measuring 4 bigha 15 biswas comprising of Khasra No. 424 min. forming part of the said acquisition was assessed by LAC as Rs. 54,60,126/-. As per record, the competent authority under chapter III of the Urban Land Act 1976 had declared an area measuring 558 sq. meters as excess vacant land vide order No. 27.07.1999. It was stated the notice U/s 9 and 10 were issued to all interested persons, in pursuance of which, the claims were filed by claimants.
2. During proceedings, IP No. 12 filed its claim in the matter wherein it was stated that notice dated 16.6.1999 has been received by the claimant for filing claim in respect of the land being acquired by Delhi Metro Authorities. It was also pleaded that claimants are entitled to have alternative land in place of the land being acquired, in the adjoining area, as per rules so that the same could be used by the claimants for the benefit of the Association. Hence, it was prayed that claimant M/s Anand Vihar Owner's Association (Regd.) may be awarded the claim of Rs. 2,66,80,00/- in respect of land i.e. 13 biswas (667 sq. yards) being acquired by the respondent Delhi Metro in addition to awarding alternative land in place of land acquired, to the claimant as per rules.
3. Reply was filed by IP No. 2 to 11 to the claim filed by IP No. 12 wherein it was stated that IP No. 12 is neither owner nor in CS-107/02/06/03 Page No.4/17 possession in respect of the property in question. It was also stated that even the owners of residential units have not authorised the said association i.e. IP No. 12 to file the claim and proceed with the aforesaid case. It was also stated that IP No. 12 has filed the claim petition with malafie intention and ulterior motive in order to extort money from the answering IPs. On merits, it was stated that entire construction was raised on the basis of revised building and layout sanction plan and IP No. 12 has not mentioned the particulars of the said building and layout sanction plan. It was also stated that as per revised building sanction plan, the answering IPs have right and authority to construct the covered area to the extent of 24,504.50 sq. ft. on ground floor and above. It was also stated that after getting the revised building and layout plan sanctioned, the IP No. 2 to 11 started to complete the remaining construction but the IP No. 12 and its associate filed number of false cases against them and obtained ex-parte injunction but later on stay was vacated byt court on the ground that IP No. 12 has no right to obtain any stay for legal construction. Hence, it was prayed that claim filed by IP No. 12 and its associated may be rejected being false, baseless and without any jurisdiction with heavy costs.
4. IP No. 2 to 11 also filed the joint claim wherein it was stated that property No. 16, Sham Nath Marg, measuring about 11427 Sq. yards had devolved on Smt. Gangawati, W/o Sh. Sri Krishna and D/o Sh. Chandu Lal alongwith her sister Smt. Sushila Shyam Nath after the CS-107/02/06/03 Page No.5/17 death of Sh. Chandu Lal and said Smt. Gangawati and Smt. Sushila Shyam Nath also obtained succession certificate from court on 23.1.1962 and subsequently by way of partition vide partition deed dated 30.3.1963 between said Smt. Gangawati and Smt. Sushila Shyam Nath the property No. 16, Sham Nath Marg, Delhi exclusively devolved upon said Smt. Gangawati and she became the absolute owner of said property and vide sale deed dated 12.12.1967 the said property was sold by Smt. Gangawati to the present claimants for a lawful consideration. It was also stated that Mr. Mahesh Chand was one of the co-owners has since died and he is survived by his wife Smt. Bimla Devi and two sons namely Sh. Ajay Kumar and Sh. Sanjay Kumar. It was also pleaded that aforesaid owners may be awarded adequate compensation in respect of proposed acquisition of land owned by them at the market value together with other consideration and it was prayed that necessary rectification may be carried out in the records of acquisition by incorporating the names of present claimants being the owners of property No. 16, Sham Nath Marg, Delhi and requisite notice under LAC Act may be issued on present claimants and compensation @ Rs. 1 lac may be awarded jointly and severally to all the claimants in respect of proposed acquisition of land belonging to claimants in property No. 16, Sham Nath Marg, Delhi.
5. IP No. 12 has filed its reply to the claim filed by IPs No. 2 to 11 wherein it was stated that IP No. 1 Chandu Lal expired on 11.1.1961 CS-107/02/06/03 Page No.6/17 and his daughter Smt. Gangawati inherited his free hold plot of land No. 16, Alipur Road, Delhi and she planned to develop a group housing scheme on that plot and she got a lay out plan sanctioned by Standing Committed of the MCD under its resolution dated 31.3.1965 whereby she was permitted to erect 34 flats on ground floor area of 21009.9 sqr. ft. It was further stated that the entire construction of the said property could not be completed within the stipulated period and thereafter a revised building plan and layout plan was also got sanctioned from the MCD and three more units were developed by the purchaser i.e. IPs No .2 to 11. It was pleaded in reply that area of property has not been specified against all the 18 buildings and expression "Duplex Type" has been added in the numbers of the 8 buildings of type (B). It was further averred in reply that 75% of the area acquired is from Park No. 2 and 25% is from the area under road widening and both the area under parks and the area under road widening belong to the Group Housing Scheme. It was also stated that no purchaser of any of the 18 buildings ever admitted that IPs No. 2 to 11 are owner of the remaining open spaces in the group Housing Scheme and the only beneficial interest of the IPs No. 2 to 11 is the Group Housing Scheme which was limited to the erection of 18 buildings which they could sell and earn profit. It was further stated that construction raised in violation of lay out plan as per resolution dated 31.3.63 are illegal and unauthorised and IP No. 12 alone is entitled to the entire CS-107/02/06/03 Page No.7/17 compensation. Hence, it was prayed that claim of IP No. 2 to 11 be rejected with costs.
6. Thereafter, vide order dated 29.03.2011, it was apprised to court that one of the members of IP No. 12 is no more and his LRs are sought to be brought on record and application was moved in this respect.
7. During pendency of case, an application U/o 1 Rule 10 CPC was also moved, however none appeared on behalf of applicant despite calls, hence said application was dismissed in default vide order dated 11.02.2013 and matter was directed to be listed for P.E.
8. Sh. Deepak Chand Gupta has stated in his evidence that his father Sh. Mahesh Chand Gupta had died on 28.10.2007 leaving behind him and his two brothers namely Sh. Sharad Chand Gupta and Sh. Naveen Chand Gupta. The death certificate of Sh. Mahesh Chand Gupta was exhibited as Ex. A-1.
9. In the evidence none of parties has produced their respective witness and has relied upon documents filed by each of parties. Even otherwise certain facts are admitted. Sale deed executed by IPs No. 2 to 11 in favour of individual flat owners of IP No. 12 is not disputed. So it is not in dispute that vendee and members of IP No. 12 /individual flats owners have got purchased the property from IPs No. 2 to 11. The area in the sale deed is also mentioned. The dispute is within narrow compass as to whether after sale of individual flats to respective flat owners, the IPs No. 2 to 11 CS-107/02/06/03 Page No.8/17 including predecessor in interest i.e. IP No. 1, original landlord/vendor was left with any right, title and interest in the remaining portion of the land on which flats were constructed or whether all the right, title and interest qua vacant piece of land which was acquired stood vested in IP No. 12 (Association and Individual owners) after they have purchased the individual floors. Both the parties have stated that sale deeds as well as judgments of courts previously passed regarding other disputes between parties be read and case be decided as they do not want to lead any oral evidence.
10.Before proceeding further, two applications as filed by IP No. 12 U/s 151 CPC are to be disposed off vide which applicants IP No. 12 has sought decision on other pending applications filed previously including the application U/o 1 Rule 10 CPC and Order 6 Rule 17 CPC vide which IP No. 12 seeks to incorporate certain amendment in its claim by getting impleaded the individual flats owners. Though the application U/o 1 Rule 10 CPC was dismissed in default earlier but still the plea is dealt with. It is not in dispute that suit property is falling in 16, Alipur Road, Delhi and there are so many flats owners who have identical stake as of IP No. 12. The IP No. 12 is representative body /Association i.e. Anand Vihar Owners' Association and even otherwise if any relief is granted to IP No. 12, automatically benefit will pass to the individual flat owners so there is no need to hear all the flat owners individually and they are CS-107/02/06/03 Page No.9/17 stepping in the shoes of IP No. 12 who is being well represented and his claim/objection are to be determined. Rather, LAC has sent the reference impleading association as respondent who has disputed the disbursement of claim to IPs No. 1 to 11 so the prayer of amendment and impleadment under order 6 Rule 17 CPC and 1 Rule 10 CPC is devoid of any force. It is made clear that claim of IP No. 12 will be read on behalf of all individual flat owners. Hence in these circumstances, application U/s 151 CPC dated 18.7.2013 stands disposed off. Second application U/s 151 CPC vide which the prayer was sought that application U/s 6 Rule 17 CPC and 1 Rule 10 CPC be decided has already been dealt with supra so this application stands disposed off. As argued further there is prayer that sale deeds of flat owners be gone through by the court. The photocopies of 18 sale deeds will be read in evidence as not objected by any of the parties. The other prayer in the application is that there are certain application U/s 22 Rule 4 CPC filed for substitution of LRs and same be disposed off. It is made clear that vide these applications, the name of LRs of individual members / flat owners who have died were sought to be impleaded but as observed already above they are being represented by IP no. 12 and individually they are not required to be taken on record hence there is no need to bring the LRS of those deceased owners of flats in Anand Vihar Owners' Association in building constructed on 16, Alipur Road, Delhi so these applications are dismissed. During proceedings IP No. 1 namely Sh.
CS-107/02/06/03 Page No.10/17Chandu Lal has already died and thereafter application was moved for bringing on record his legal heirs. Thereafter, during pendency of present matter, IP No. 10 namely Sh. Mahesh Chand and IP No. 3 also expired and application for bringing the LRs of deceased IP No. 10 and 3 was moved. Thereafter, IP No. 2 namely Ms. Usha Narain also expired on 04.10.2009 and application was also moved for substitution. Further prayer has been made that these applications be disposed off. Another Mahesh Chand represented through Smt. Bimla Devi, Ajay Kumar and Sh. Sanjay Kumar also died and LRs are required to be brought on record. These applications are considered. Verification report from LAC are already on record, hence these applications are allowed and LRs are impleaded. Memo of parties is already on record.
11.I have gone through the records and have heard the arguments of parties.
12.Now determining the claim of parties, firstly one has to go through previous litigation between parties. First one is Civil Writ Petition bearing No. 383/81 decided by Hon'ble High Court of Delhi titled as Rajeshwar Parshad & Ors. Vs Municipal Corporation of Delhi & Ors. wherein IPs No. 1 to 11 has sought relief against MCD as MCD had declined to sanction/grant further extension to construct building. I have gone through the judgment. This judgment is not helping to any of the parties except on one point and that too for aiding this court for deciding the issue. On page 3, CS-107/02/06/03 Page No.11/17 the Hon'ble High Court has mentioned as to what was the area available, on which area constructed was allowed, which area was earmarked for other purpose. It is clearly shown that whole of the area i.e. 11, 427 sq. yards was considered for the purpose of construction of the flats which is 2.36 acre in which the water, parks, parking, road, open space was clearly given. Thus it is clear that landlord/IPs No. 1 to 11 were left with no rights regarding total area on which these flats were constructed. The remaining area was for the purpose of park, parking, roads, space which were to be used by each of member commonly. The plan was got sanctioned from MCD and not even single inch was earmarked by landlord/ owners/ colonizers/ developers for their own purpose so it does not lie in their mouth now to say that compensation can be given to them. I will further elucidate these points while dealing with sale deed executed by IPs No. 1 to 11. This judgment of Hon'ble High Court has not given any right to anybody to use the vacant portion/portion meant for street, park, roads etc. in different manner then mentioned in layout plan. At the most, vide this judgment, the construction was validated /extension was given to original landlord. The rights of parties vis-a-vis each other has not been dealt with. The second judgment relied upon by counsel for IPs No. 1 to 11 is DLF Universal VS Arjun Singh Delhi reported judgment 1986 (10) page 200 filed against Single Bench judgment in case titled as Arjun Singh & Ors. Vs. Deputy Mal Jain 1982 RLR 60 decided CS-107/02/06/03 Page No.12/17 on 02.11.81 wherein it was opined that colonizer may deal with land in a manner it wants. I have gone through the judgment. The controversy in issue herein is totally different. Therein some of the portion was earmarked for certain public utility and Ld. Single Judge in case titled as Arjun Singh & Ors. Vs. Deputy Mal Jain 1982 RLR 60 decided on 02.11.81 has opined that trust is created hence colonizer could not sell the land in different manner. The Hon'ble Division Bench after setting aside the judgment of Ld. Single Judge opined that no trust is created. The dispute was with respect to sites earmarked by vendor earlier for public purposes but as same has not been dealt in that manner by the owners still the owners were held to deal with it freely because that had no concern with purpose or area of main colony so question raised herein is not covered vide this judgment. The parties have further relied upon judgment of Sh. P.K. Jain, Ld. ADJ, in RCA No. 132/85 on 03.08.85. In this judgment, Ld. ADJ has after relying upon judgment Arjun Singh Vs Deputy Mal Jain 1982 RLR 60 decided on 02.11.81 (dealt supra) has given certain observation but this judgment supra of 1982 RLR 60 of Single Bench was set aside by Hon'ble High Court in DLF Vs Arjun Singh Delhi reported judgment 1986 (10) page 200 discussed above already. The counsel for IPs No. 1 to 11 has submitted that when Single Bench judgment has been set aside by Hon'ble Division Bench then observation of Ld. ADJ after relying upon that judgment of Hon'ble CS-107/02/06/03 Page No.13/17 Single Bench of High Court should not be considered. The arguments of counsel for IPs No. 1 to 11 does not hold water because the division bench judgment of DLF and single bench judgment have nothing to do with present controversy and so even if observation of Ld. ADJ in appeal qua dispute between parties is ignored on the strength of division bench judgment and IPs No. 1 to 11 are not held trustee, still, it is clearly made out that rights of individual persons who is colonizer are different then flat owners. The judgment has not been challenged otherwise and it stands good for other observation and even otherwise if the judgment is not considered, still different sale deeds executed between individual flat owners of IP No. 12 and IPs No. 1 to 11 clinches the issue. In all sale deeds (which are almost inadvertatum), the following averments have been mentioned:-
"And whereas she developed the said land for the said Group Housing Scheme by demolishing the existing structure providing roads, sewers, rain water drains and water mains as required by the Municipal Corporation of Delhi and obtained the sanction of the detailed drawings of the flats to be built on the said land in the said Group Housing Scheme from the Municipal Corporation of Delhi vide their sanction letter No. 1437/B/HQ/66 dated 25.07.1966.
And Whereas the said vendors after getting the due sanction CS-107/02/06/03 Page No.14/17 from Delhi Development Authority and Municipal Corporation of Delhi, constructed a set of building in Group Housing Scheme which is known as "Anand Vihar" and obtained completion certificate thereof.
In pursuance of the said agreement and in consideration of the sum of Rs. 1,10,000/- out of which the Vendors have already received a sum of Rs. 60,000/- as earnest money and part of the sale price hereby acknowledged by the vendors and balance of Rs. 50,000/-being paid by the Vendees to the Vendors before the Sub-Registrar, Delhi at the time of presentation of Sale Deed for registration. The Vendors do hereby grant convey and transfer unto the aforesaid Vendees all that said piece and parcel of land alongwith a 2 ½ storeyed newly constructed building thereon described in the Schedule 'A' hereto and delineated on the map of plan annexed hereto and therein bordered in red lines together with the reversion or reversions remainder rents issues and profits thereto and to every part thereof together also with all appurtenances thereto belonging and to every part thereof and all estate, right, title, interest, claim and demand whatsoever of the Vendors in and upon the same or any part thereon and all easements and rights and may be available thereof into the Vendees for ever free from all and any manner of encumbrances liens, charges, claims, CS-107/02/06/03 Page No.15/17 demands, lispendens or attachments whatsoever. That all the owners of buildings in Anand Vihar Colony will bear proportionate cost of maintenance of roads, parks, water supply, electricity installments".
13.The crux is that if owners of building have to bear proportionate cost of maintenance of roads, park, water supply, electricity installments then certainly, they have to be beneficiary. It cannot be accepted that for area owned by IPs No. 2 to 11 they will bear cost of maintenance. There is nothing on record which suggest that any area was kept by IPs No. 2 to 11. In above clause, it is mentioned that vendees are being given all the rights with all appurtenances thereto belonging and to every part thereof and all estate, right, title, interest, claim and demand whatsoever of the Vendors in and upon the same or any part thereon and all easements and rights. Site plan are also annexed with sale deed. The area which has been acquired is adjacent to road and which comprises park. It was meant for the usage and welfare and enjoyment of the flat owners as park and was required from them. It was not meant for any other purpose and as it could not have been utilized otherwise also for some other purpose by IPs No. 2 to 11 then certainly acquired area pertains to place which are meant for flat owners. However, as notional right was given by the judgment of Sh. P.K. Jain, Ld. ADJ to IPs No. 1 to 11 so this court has to fix notional compensation to the IPs No. 2 to 11, which is fixed as 10%. Accordingly, in view of above CS-107/02/06/03 Page No.16/17 observation, the IP No. 12 is entitled for amount of compensation to the extent of 90% and IPs No. 1 to 11 are entitled for 10% share of compensation. The reference is answered accordingly.
14.Relief:- In view of the above finding, referral authority i.e. the LAC is directed to remit the awarded amount of the land to the I.P.s in above terms as per my findings on issue between the I.P.s. Copy of this judgment be sent to the LAC for compliance. He will distribute the amount as per above observation to the entitled I.P.s after receiving the amount from concerned bank. File be consigned to record room.
Announced in open court (AJAY GOEL)
on 22.07.2013 ADJ-12(Central)/Delhi.
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