Delhi High Court
Lt.Col.Hari Chand vs Uoi on 4 September, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 487/1971
LT. COL. HARI CHAND ..... Appellant
Through: Mr.Manmohan Gupta, Adv.
versus
UOI ..... Respondent
Through: Mr.Sanjay Poddar, Adv.
DATE OF DECISION:
% 04.09.2008
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
CM No.548/1979, CM No.11720/2006, CM No.11719/2006 & CM No.11721/2006
1. Vide CM No.11720/006 condonation of delay in filing CM No.11719/2006 has been prayed.
2. Vide CM No.11719/2006 restoration of the appeal has been prayed for. Vide CM No.11721/2006 revival of CM No.548/1979 has been prayed for.
3. Vide CM No.548/1979 substitution of the legal heirs of the deceased appellant has been prayed for. We note that RFA No.487/1971 Page No.1 of 7 the appellant Hari Chand died on 6.2.1979.
4. When appellant died CM No.548/1979 was filed. Claim for substitution was predicated on a stated will dated 28.7.1974 purportedly executed by the appellant. The will came under a cloud. Probate of the will was sought for. On 15.5.1981 hearing of CM No.548/1979 was deferred sine-die for the reason the Probate Court was seized of the dispute.
5. The appeal came to be listed before Court on 24.9.1992. The appeal was dismissed noting that none appeared and even paper book was not filed.
6. Everyone went into a slumber till September, 2006 when CM No.11719-20-21/2006 were filed.
7. Prayers made in the 3 applications have been noted hereinabove.
8. It was pointed out to this Court that after fighting for years together the parties settled the dispute relating to the probate of the will and that the probate petition was disposed of as per consent, vide order dated 1.3.2006. As per the settlement, the amount of compensation, if any enhanced, was to be shared amongst Shri Chander Bal Dhawan, Shri Ram Prakash Mehra, Shri Chander Kumar Mehra and Shri Som Nath Mehra in the ratio : " 50 : 16.6 : 16.6 : 16.6", meaning thereby Chander Bal Dhawan would get 50% of the enhanced RFA No.487/1971 Page No.2 of 7 compensation and the remaining 3 would get remaining 50% to be equally divided inter se the 3.
9. Explaining delay in seeking revival of the appeal, it is stated that the parties were under the impression that pursuant to the order dated 15.5.1981 hearing of the appeal was adjourned sine die till dispute before the Probate Court was decided and that when dispute before the Probate Court was decided the parties sought inspection of the appeal and thereupon learnt that the same was dismissed in default on 24.9.1992.
10. We are satisfied that the applicants had a sufficient cause in belatedly preferring the application seeking restoration.
12. We thus dispose of the applications as follows:-
A.) CM No.548/1979, CM No.11721/2006 are disposed of by impleading Shri Chander Bal Dhawan, Shri Ram Prakash Mehra, Shri Chander Kumar Mehra and Shri Som Nath Mehra as the legal heirs of the deceased appellant.
Amended memo of parties is directed to be filed within a week.
B.) CM No.11720/2006 is allowed. Delay in filing CM No.11719/2006 is condoned.
C) CM No.11719/2006 is allowed. Order dated 24.9.1992 RFA No.487/1971 Page No.3 of 7 dismissing the appeal in default is set aside. The appeal is restored for hearing.
RFA No.487/1971
1. Learned counsel for the parties state that the printing of the record for preparation of the appeal paper book may be dispensed with.
2. Ordered accordingly.
3. Heard learned counsel for the parties.
4. Late Lt. Col. Hari Chand owned 2 bigha and 1 biswa of land comprised in Khasra No.132 in the revenue estate of Village Kalu Sarai. He also owned 7 bigha and 19 biswa of land comprised in Khasra No.285/133 in the revenue estate of the same Village.
5. Pursuant to a notification issued under Section 4 of the Land Acquisition Act 1894 on 25.8.1962, the said land came to be acquired vide Award No.1462.
6. Dissatisfied with the award, Lt. Col. Hari Chand sought a reference under Section 18 of the L.A. Act, 1894. Vide impugned judgment and decree dated 7.5.1971 the Reference Court enhanced the compensation for the land comprised in Khasra No.132 by determining fair market value thereof @ Rs.24.20 per sq. yd. and for the land comprised in Khasra No.285/133 @ Rs.15.12 per sq. yd. RFA No.487/1971 Page No.4 of 7
7. In the appeal, late Lt. Col. Hari Chand prayed that the compensation be further enhanced by Rs.6,40,000/-.
8. Learned counsel for the parties state that this Court need not bother itself much with the evidence led and may dispose of the appeal with reference to a decision of the co- ordinate Division Bench of this Court reported as 45 (1991) DLT 131 (DB) Hans Raj Bhalla Vs. UOI.
9. We have perused the decision in Hans Raj Bhalla's case. Subject matter of the decision was the determination of fair compensation of land in the same village i.e. Kalu Sarai relatable to a notification under Section 4 of the Land Acquisition Act on 3.8.1963.
10. With reference to an earlier decision of this Court, where, pertaining to a notification dated 13.11.1959 issued under Section 4 of the LA Act, 1894 for lands in Village Kalu Sarai, fair compensation as of 13.11.1959 was assessed at Rs.17,000/- per bigha for all lands, the Division Bench enhanced the compensation to Rs.22,000/- per bigha pertaining to the lands acquired pursuant to the notification dated 3.8.1963.
11. The principle adopted by this Court was to treat Rs.17,000/- per bigha as fair market compensation as of 13.11.1959 and suitably enhance the same as time passed by. RFA No.487/1971 Page No.5 of 7
12. We do likewise. Learned counsel for the parties state that treating Rs.17,000/- per bigha as fair market value as of 13.11.1959 and pegging the same at Rs.22,000/- per month as of 3.8.1963, yearly increase comes to approximately Rs.1000/- per bigha.
13. Thus, we determine fair market value of the acquired lands as of 25.8.1962 at Rs.21,000/- per bigha.
14. Noting that the acquisition proceedings commenced and came to an end prior to 30.4.1982 we note that the issue has to be decided in light of the provisions of the Land Acquisition Act, 1894 as in vogue prior to the amendments incorporated therein.
15. This would mean that Section 25 of the Land Acquisition Act, 1894 would have to be taken note of as on the statute book prior to its amendment in the year 1984.
16. We note that the deceased Lt. Col. Hari Chand was not served with a notice under Section 9 of the LA Act, 1894 and for said reason could not submit any claim before the Land Acquisition Collector, meaning thereby, the bar of the unamended Section 25 would not come into force.
17. There is no embargo on enhancing the compensation as directed.
18. Relatable to the benefit under Section 28, learned RFA No.487/1971 Page No.6 of 7 counsel for the parties concede that due to the negligent acts of the legal heirs of the appellant it may be recorded that they would not be entitled to any interest on the enhanced compensation under Section 28 of the Land Acquisition Act, 1894 for the period 15.5.1981 till 17.4.2006.
19. We further direct that the statutory benefits granted by the learned Reference Court at the rate specified in para 17 of the impugned order, relatable to the compensation which stands enhanced today, would not be available to the appellants for the period 15.5.1981 till 17.4.2006 as conceded by learned counsel for the appellants.
20. Appellants would be entitled to proportionate court fee on the enhanced compensation.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
SEPTEMBER 04, 2008 vg RFA No.487/1971 Page No.7 of 7