Delhi District Court
Sh. Kalka Prasad Aggarwal vs The Union Of India on 18 April, 2013
1
IN THE COURT OF SH. SANJEEV AGGARWAL ADJ03
(CENTRAL) DELHI
Suit Nos. 434/06/94 and 435/06/83
(In Suit No. 435/06/83)
1. Sh. Kalka Prasad Aggarwal
S/o Sh. Moti Ram
B7, Friends Colony
New Delhi.
2. Sh. Amba Prasad Aggarwal
S/o Sh. Moti Ram
E66, Masjid Moth
New Delhi
3. Sh. Ajit Prasad Aggarwal
S/o Sh. Moti Ram
3338, Kucha Kashgari Bazar
Sita Ram, Delhi
4. Sh. Anil Prasad Aggarwal
S/o Sh. Moti Ram
3338, Kucha Kashgari
Bazar Sita Ram, Delhi06
5. Smt Shakuntala Gupta
W/o Sh. Onkar Nath Gupta
464748/21, Darya Ganj,
New Delhi
6. Shrimati Sarla Garg
W/o Dr. Satish Garg
D778, Saraswati Vihar
Pitam Pura, Delhi .....Plaintiffs
Versus
The Union of India
Through
(a) The Secretary
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
2
Ministry of Works and Housing
Nirman Bhawan
New Delhi.
(b) The Land Acquisition Collector(ME)
Room No. 70, 3rd Floor
Criminal Wing, Tis Hazari Courts, Delhi ...Defendants
AND
(In Suit No. 434/06/94)
1. Sh. Kalka Prasad Aggarwal
S/o Late Sh. Moti Ram,
R/o B7, Friends Colony,
New Delhi.
2. Sh. Amba Prasad Aggarwal
S/o Late Sh. Moti Ram
R/o E66, Masjid Moth,
New Delhi.
3. Sh. Anil Prasad Aggarwal
S/o Late Sh. Moti Ram
R/o 3338, Kucha Kashgari,
Bazar Sita Ram, Delhi.
4. Sh. Ajeet Prasad Aggarwal,
S/o Late Sh. Moti Ram
R/o J108, Sarita Vihar,
New Delhi. ..... Plaintiffs
Versus
1. Union of India
through
a) The Secretary,
Ministry of Urban Development,
Nirman Bhawan, New Delhi.
b) The Secretary,
Ministry of Home Affairs,
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
3
Government of India,
North Block, New Delhi.
2. Govt. of National Capital Territory of Delhi.
Through its Chief Secretary,
Alipur Road, Delhi.
Date of Institution
of the Suit :
01.07.1994(suit No.
434/06/94) and
16.08.83(suit No.
435/06/93)
Date on which order was reserved : 28.03.2013
Date of decision : 18.04.2013
J U D G M E NT
1. Vide this common judgment, I shall dispose off, both the
above mentioned suits, as they have been consolidated vide
order dated 26.09.01, whereby the suit No. 435/06/83 was to
be treated as lead suit.
2. Brief facts which are necessary for the disposal of suit No.
435/06/83 are the plaintiffs had filed a suit for declaration
on the allegations that plaintiffs are the owner in possession
of land measuring 5 bigha, 5 biswas bearing khasra No.
1283/67/2 situated at Village Kilokari, Delhi(hereinafter
referred to as suit land).
3. It is stated that Land Acquisition Collector commenced
proceedings for the acquisition of the aforesaid land
measuring 5 bigha 5 biswas in the aforesaid khasra number
in pursuance to a declaration U/s 6 for an area measuring 22
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
4
bighas 9 biswas vide notification bearing No. F.7(34)/61
L&H/(Vol.II) dated 15.12.66. The notices U/s 9 & 10 of the
Land Acquisition Act were allegedly issued by the aforesaid
Land Acquisition Collector, but no notice was served upon
the plaintiff(s). It is further stated that Land Acquisition
Collector made his award No. 49 of 8182 and the said award
was announced to the plaintiff(s) on 26.12.81 and in the
award the said Land Acquisition Collector alleged that the
land was covered by the General Notification No. F.15(III)/
59LSG dated 13.11.1959(hereinafter referred to as
notification of 1959) U/s 4 of the Land Acquisition Act
(hereinafter referred to as LAC Act).
4. It is further stated that land comprised in Khasra No.
1283/67/2 Village Kikroli is situated on the junction of Ring
Road and Mathura Road towards the south of Ring Road and
West of Mathura Road. The land bearing Khasra number
1283/87/2, Village Kilokari, Delhi was not covered by the
aforesaid notification of 1959 U/s 4 of LAC. In the said
notification the land situated towards the North of Ring
Road and the land situated towards the east of Mathura
Road were notified for acquisition U/s 4 of LAC Act. No
notification U/s 4 of the LAC Act was ever issued by any
proper authority in respect of the land owned by the plaintiff
(s). It is further stated that the notification U/s 6 was issued
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
5
under mistaken belief and misreading of notification of
1959 issued U/s 4 of LAC Act.
5. It is further stated that no notification for proposed
acquisition U/s 4 of the Land Acquisition Act was ever
issued in respect of the aforesaid land of the plaintiff(s). The
declaration U/s 6 of the Land Acquisition Act stated above
dated 15.12.66 was illegal, invalid and void and the Land
Acquisition Collector had no right to commence the
acquisition proceedings of the land owned by the plaintiff(s)
and had no right to make the award No 49 of 198182 in
respect of the aforesaid land for the Planned Development
of Delhi. The said award made by the Land Acquisition
Collector was also illegal and void and without jurisdiction
and was of no effect.
6. It is further stated that plaintiff(s) served a notice U/s 80
CPC dated 17.07.1982 through Sh. Kalka Prasad Aggarwal,
advocate upon the defendant no. 1 calling upon the
defendant No. 1 to withdraw the declaration U/s 6 of the
LAC Act contained in the notification dated 15.12.66 and
also called upon the LAC to desist from interfering with the
possession of the plaintiff or from taking possession of the
aforesaid land in pursuance to the aforesaid award. Inspite
of that defendant No. 1 has failed to withdraw the said
notification and award, hence the suit.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
6
7. The plaintiff has filed the present suit claiming declaration
U/s 6 of Land Acquisition Act contained in the notification
dated 15.12.66 and the award No. 49 of 198182 in respect of
the suit land be declared to be illegal, void and without
jurisdiction and defendant No. 1 be restrained by issue of
perpetual injunction from interfering with the possession
over the said land and from taking possession of the said
land in pursuance to the aforesaid award.
8. Written Statement was filed on behalf of UOI through
Ministry of Works and Houses and LAC and also separate
written statement was filed on behalf of defendant DDA. In
the written statement filed on behalf of UOI and LAC, it is
stated that the government had taken over the possession of
1 Bigha 5 Biswas out of the aforesaid suit land, therefore the
suit for injunction was not maintainable, even otherwise
the suit was barred by limitation, as the notification U/s 6 of
LAC was issued on 15.12.66, award was announced on
26.12.81, therefore suit filed in August 1983 was time barred.
It is also stated that suit is bad for for misjoinder and non
joinder of the parties and no notice U/s 80 CPC had been
given before filing of the present suit.
9. On merits, it was stated that plaintiff was not the owner of
the suit land, as the government had already taken over
possession of 1 bigha 5 biswas out of the suit land, which
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
7
now vests in the government, therefore the government is
the owner of the suit land.
10.On merits, it was also stated that the suit land was covered
by the general notification dated 13.11.1959 issued U/s 4 of
LAC Act and notification U/s 4 in respect of the suit land had
been legally issued and published according to the
provisions of LAC Act. It is further stated that the declaration
U/s 6 of L.A.Act was issued legally on 15.12.66 and the suit
land was covered by the General Notification U/s 4 dated
13.11.59 and therefore consequent award No. 49/8182 is
legal, therefore plaintiff is not entitled to any declaration as
prayed for.
11.In the written statement filed by the DDA, it was submitted
that suit of the plaintiff was without any cause of action and
it was submitted that the suit land had been acquired by
acquiring authority vide Award No. 49/8182 and further
one piece of land measuring 1 bigha 1 biswas was already
taken possession on 17.06.82 and further rest of the land
could not be transferred to the DDA by the LAC due to
operation of the stay order, therefore plaintiffs have got no
right, title or interest over the same. It is stated that since
acquisition has been correctly done and the suit of the
plaintiff is without any cause of action and same is liable to
be dismissed.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
8
12.In between the original plaintiff Sh. Moti Ram died and his
LRs were substituted on the record vide order dated
07.04.86.
13.Replication was filed on behalf of plaintiff to the separate
Written Statements of defendant LAC/UOI and DDA in
which the allegations made in the Written Statement were
denied in toto and those made in the plaint were reiterated
as correct.
14.From the pleadings of the parties, following issues were
framed on 27.09.88.
(i). Whether the suit is barred by limitation as alleged
in the preliminary objection No. 2 of the written
statement ?
(ii).Whether notice U/s 80 CPC is not legal and valid as
alleged in the preliminary objection No. 4 of the
written statement ?
(iii).Whether the defendants has taken over the
possession of 1 Bighas 5 Biswas out of the suit land
if so its effect? OPD.
(iv).Whether the suit land is covered under the
notification U/s 4 of L.A.Act dated 13.11.1959 if so its
effect ?
(v).Whether the award and the notification under
section 6 of t he L.A. Act is illegal ab initio as alleged
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
9
in the plaint if so its effect ?
(vi).Relief.
15.Thereafter matter went for trial and one of the plaintiffs
examined himself as PW1 namely plaintiff no. 1 Kalka
Prasad Aggarwal, as a witness in both the consolidated
cases. In rebuttal defendant has examined one Sh. Jai
Prakash, Kannongo, LAC, Mehrauli(East) as DW1, DW2 is
Sh. Satinder Kumar from Registrar of Cooperative Societies,
Parliament Street, New Delhi, DW3 is Sh. Ratan Verma,
Kanoongo, Land & Buildings Department, Delhi
Administration, I.P.Estate, New Delhi, DW4 is Sh. David
Messy, Naib Tehsildar, Defence Colony, Delhi, D2W1 is Sh.
Jagpal Singh, Patwari N.L.Branch DDA, Vikas Sadan, New
Delhi,.
16.Originally, the DDA was not the party to the present suit.
DDA was made a party to the present suit on the application
U/o 1 rule 10 CPC U/s 151 CPC which was allowed vide
order dated 17.12.98. Thereafter an application U/o 6 Rule
17 CPC was filed on behalf of defendant No. 1 for
amendment of written statement dated 25.10.87 which
application was dismissed vide order dated 20.11.04 by the
Ld. Predecessor, thereafter UOI/LAC went in appeal in CM
(M) No. 192/05 of the Hon'
ble High Court. The amendment
prayed in the written statement was allowed. In the initial
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
10
written statement defendant No. 1 had pleaded that the suit
land was covered by notification U/s 4 dated 13.11.1959 by
way of amendment, it was contended that a legal
notification U/s 4 of Land Acquisition Act was actually dated
24.10.61 and not of the year 1959. The said amendment was
allowed by Hon'b
le High Court vide order dated 20.01.12
subject to the cost of Rs. 3000/.
17.Pursuant to that amended written statement has been filed
on behalf of UOI in which the contention taken in the
original written statement with regard to taking the part
possession of the suit land measuring 1 bighas 5 biswas was
maintained and also the objection with regard to limitation
and non joinder and mis joinder of necessary parties and
giving of valid notice U/s 80 CPC.
18.However, it was stated and admitted as per the allegations
made in the plaint that Khasra No. 1283/67/2, Village
Kilokari, Delhi was not covered by the General Notification
No. F.15(III)/59LSG dated 13.11.1959 issued U/s 4 of the
LAC Act and it was stated that notification U/s 4 in respect of
said land had been issued U/s 4 dated 24.10.61 and the suit
land was not covered by general notification U/s 4 dated
13.11.59, but the declaration U/s 6 of L.A Act was issued
legally on 15.12.66, hence award was rightly passed having
No. 49 of 198182 and it was also contended that notification
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
11
U/s 4 referred to in the award was inadvertently referred in
the file No. F.15(111)/59LSG dated 13.11.59 and infact the
said file number should be as F.15(245)/60LSG/L&H dated
24.10.1961, therefore it is stated that award dated 15.12.66
and declaration U/s 6 dated 15.12.66 and the award were
legal and valid and the part of the suit land had been validly
acquired measuring 1 bigha 1 biswas.
19.Amended replication was filed by the plaintiff to the
aforesaid amended written statement in which it was stated
that the suit of the plaintiff was within limitation and a valid
notice U/s 80 had been given and the corresponding
allegations made in the written statement was true and
correct. It is also admitted on behalf of plaintiff that the suit
land was not covered under the notification issued U/s 4 of
L.A Act dated 13.11.1959 and it was stated that in this regard
the contentions made by the plaintiff are correct and it was
also denied that the notification issued U/s 4 of L.A Act in
respect of the suit land has been legally and validly issued
and also the award. It is also denied that there was a
typographical error as stated in the amended written
statement.
20.On 21.07.12, one of the plaintiffs Mr. Anil Prasad Aggarwal
i.e plaintiff No. 4 made a statement on oath as under:
"I admit for myself and on behalf of
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
12
other plaintiffs that land in dispute
is covered by notification U/s 4 of
Land and Acquisition Act dated
24.10.61"
21.In view of the statement made on behalf of the plaintiffs
and it was also admitted on behalf of plaintiffs that the suit
land was covered as per notification dated 24.10.61, as
contended by UOI in their amended written statement and
prior to that counsel for the plaintiffs stated that no issue
arises in the present matter and the matter was listed for
final arguments, thereafter as stated above on 21.07.12
statement of plaintiff No. 4 was recorded, in which he had
admitted that the land in dispute was covered by
notification U/s 4 of the LAC dated 24.10.61 and thereafter
matter was listed for final arguments, thereafter on 24.11.12,
it was stated by the plaintiffs No. 2 & 4 that the issues in this
case were framed on 27.09.1988. However, the issues No. 3 &
4 had now become redundant, as the plaintiffs had already
filed a suit for possession in respect of 1 Bigha 5 Biswas out
of the suit land, whereby the plaintiffs admit that the
defendants have already taken over the possession of the
land measuring 1 Bigha 5 Biswas and further the defendants
in their amended written statement had also admitted that
the suit land was covered U/s 4 notification dated 24.10.61
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
13
and not under 13.11.59 and in these circumstances, the only
issues No. 1, 2 & 5 remains for determination in the present
suit. The said arguments were not disputed by Ld counsel
for UOI. In these circumstances, the only issues which
remains for determination in the suit No. 435/06 before this
court are issues No. 1, 2 & 5, in view of the submissions
made by the plaintiffs No. 2 & 4 which was not rebutted by
counsel for UOI on 24.11.12.
22.Regarding the facts of Suit No. 434/06/94 the plaintiffs have
filed the suit for recovery of possession and damages for use
and occupation/mesne profits amounting to Rs. 3,80,000/
on the allegations that Late Sh. Moti Ram was the owner of
the suit land and the Land Acquisition Collector made an
award no. 49 of 198182 in respect of the aforesaid land. The
acquisition proceedings were commenced in pursuance to
the declaration U/s 6 of an area measuring 22 Bighas 9
Biswas vide notification dated 15.12.66. The said acquisition
was made under a wrong impression that the land was
covered by the General Notification U/s 4 of L.A Act,
whereas the notification dated 13.11.1959 as a matter of fact,
did not cover the suit land measuring 5 Bighas 5 Biswas,
therefore the entire proceedings initiated on the basis of the
aforesaid declaration U/s 6 of the L.A Act was void and
without jurisdiction. The Land Acquisition Collector had no
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
14
jurisdiction to make any award in respect of the land which
was never notified for acquisition U/s 4 of L.A Act.
23.It is further stated that Sh. Lala Moti Ram filed a suit No.
636/83 challenging the said acquisition and the suit is now
pending adjudication, whereby the UOI had been restrained
from taking possession of the aforesaid land by a temporary
injunction issued by the then Presiding Officer on
01.08.1988 and during the pendency of the aforesaid suit No.
636/83 it transpired that the UOI had already taken
possession of the land measuring 1 Bighas 5 Biswas on
17.06.82. Since UOI had no right to take possession of the
said land. Since the acquisition proceedings were void ab
initio and since the Land Acquisition Collector had no right
in law to take possession of 1 Bigha 5 Biswas of land out of
aforesaid Khasra forming part of the suit land.
24.It is further stated that Lala Moti Ram died on 30.03.1984,
leaving behind his LRs mentioned above and plaintiff no. 2
filed a suit for partition bearing No. 746/84 titled as Sh.
Amba Prasad Aggarwal Vs. Kalka Prasad Aggarwal in the
Hon'b
le High Court of Delhi, which was settled and a
partition decree was passed. By virtue of the said partition
decree, the plaintiffs were entitled to the suit land. It is
further submitted that possession of the defendants over the
land measuring 1 Bigha 5 Biswas out of aforesaid Khasra No.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
15
1283/67/2 is illegal and unauthorized and the defendants
have no right to remain in possession of the said land.
25.It is also stated that since the possession of the defendants
over the aforesaid land measuring 1 Bigha 5 Biswas is illegal
and unauthorized, the defendants are liable to pay damages
for use and occupation/mesne profits @ Rs. 10000/ per
month from the date of taking over possession till the filing
of the present suit and the plaintiffs have claimed Rs.
3,80,000/ on account of damages for use and occupation
for the period prior to filing of the suit and the plaintiffs have
already served a notice dated 24.04.1994 calling upon the
defendants to handover vacant possession of the aforesaid
land to the plaintiffs within two months of the service of the
notice, but the defendants have failed to comply the said
notice. Since the possession of the land measuring 1 Bighas
5 Biswas was taken by the defendants on 17.06.82. A suit for
recovery of possession can be filed within a period of 12
years. Since it is stated that a notice U/s 80 CPC was
required to be served upon the defendants, therefore
plaintiffs are entitled to the extension of two months U/s 15
of the Limitation Act. Hence the plaintiffs have prayed for
the said recovery of possession of land forming part of
Khasra No. 1283/67/2 Mauja Kilokri, Delhi be passed and
have also prayed for recovery of Rs. 3,80,000/ and have also
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
16
prayed that a decree for recovery of future damages for use
and occupation/mesne profits from the date of filing of the
suit till recovery of possession @ Rs. 10000/ per month be
passed.
26. Written Statement was filed on behalf of the defendant in
which a preliminary objection was taken that no notice U/s
80 CPC was served and the suit land was barred by
limitation.
27.On merits, it was admitted that the suit land had been
acquired vide award No. 49/8182 in pursuance to
declaration U/s 6 LAC Act dated 15.12.66. However, it was
denied that the suit land comprising khasra No. 1283/67/2
was not covered by Section 4 vide notification dated
13.11.59. It was submitted that the possession of 1 bigha 5
biswas of land was rightly taken over on 17.06.82 in
pursuance of award No. 49/8182. It was specifically denied
that the Land Acquisition Collector had neither the
jurisdiction nor the right to take the proceedings under the
L.A Act. It is stated that as per Section 16 of L.A Act the Land
Acquisition Collector was within his rights to take
possession of the acquired land, therefore plaintiffs are not
entitled to take possession and they are not entitled for any
remedies and mesne profits as prayed at any rate much less
Rs. 10000/ per month, therefore the suit of the plaintiff is
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
17
liable to be dismissed.
28.Replication was filed on behalf of plaintiff to the Written
Statement of defendants in which the allegations made in
the Written Statement were denied in toto and those made
in the plaint were reiterated as correct.
29.In the present case an application U/s 151 CPC was also
moved by the defendants for amendment in the written
statement which was declined vide order dated 20.11.04,
thereafter the defendant went in appeal vide order dated
23.01.12 of the Hon'bl
e High Court, the application of the
defendant for amendment of written statement was
allowed subject to the cost of Rs. 3000/ and they were
allowed to amend the written statement.
30.In the amended written statement the stand of UOI was
that no notice U/s 80 CPC was sent and the suit of the
plaintiff was without any cause of action and was barred by
limitation.
31.On merits it was admitted that Khasra No. 1283/67/2 of
Village Kilokari i.e the suit land was not covered by the
General Notification issued U/s 4 of LAC Act. It was stated
that the notification U/s 4 of LAC Act was issued in respect
of the suit land and published according to the provisions of
LAC.Act on 24.10.1961 and therefore it is clear that the said
land was the subject matter of notification issued U/s 4 of
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
18
LAC Act dated 24.10.61, but it is denied that the entire
proceedings instituted and declaration U/s 6 was declared
void and without jurisdiction and it was stated that a valid
award has been passed. It is denied that the LAC has no
jurisdiction over the suit land or that possession of 1 Bigha 5
Biswas had been illegally taken by the defendant in
unauthorized manner and it was stated that defendant had a
right to remain in possession of the suit land and plaintiffs
were not entitled for any damages @ Rs. 10000/ per month,
as the land has been legally acquired under the provisions of
LAC.
32.Amended replication was filed on behalf of the plaintiffs to
the aforesaid written statement of defendants in which the
allegations made in the Written Statement were denied in
toto and those made in the plaint were reiterated as correct.
33.On 21.07.12, plaintiff No. 4 made a statement on oath as
under:
"I admit for myself and on behalf of
other plaintiffs that land in dispute
is covered by notification U/s 4 of
Land and Acquisition Act dated
24.10.61"
34.Prior to that on 21.05.12 plaintiff No. 2 and his counsel Mr.
Sanjay Aggarwal stated that no issue arises in the present
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
19
matter and the same be listed for final arguments, which
was not disputed by Ld. Counsel for UOI/LAC.
Consequently the same was listed for final arguments and
thereafter on 21.07.12 , the statement of plaintiff No. 3 was
recorded in which he admitted that the land in dispute is
covered by notification U/s 4 of the LAC dated 24.10.61.
35.From the pleadings of the parties, following issues were
framed on 06.05.02:
(i) Whether plaintiffs are entitled to damages for use
and occupation, if so at what rate and for which period
?
(ii) Whether plaintiffs are entitled to possession of suit
land ?
(iii) Whether possession of defendant over the land
measuring 1 bighas and 5 biswas are legal and valid ?
(iv) Whether notice U/s 80 CPC was duly served upon
the defendant ?
(v) Whether this court has no jurisdiction to try and
entertain the present suit ?
(vi) Relief.
36.Since no further issue arose after filing of amended written
statement, therefore no additional issues were framed as per
wishes and desire of the parties and as per law.
37.I have heard Ld. Counsel for plaintiffs No. 1 & 3 Sh. Sanjay
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
20
Aggarwal and Sh. Yogesh Lakra and counsel for UOI/LAC
Mr. Rajnish Kumar Sharma and Ld. Counsel for DDA Ms.
Beena Sharma.
38.Counsel for plaintiffs have relied upon following judgments
in support of their contentions:
(i) AIR 1996 DELHI 206 Note (Q)
(ii) 2010(IV) AD Delhi 634
(iii) AIR 1976 SC 386
(iv) AIR 1968 SC 1870
(v) AIR 1971 SC 1676
(vi) AIR 1969 Bombay 43
(vii) 19911 Punjab Law Reporter
(viii) AIR 1991 Karnataka 273
(ix) AIR 1990 Bombay 98 note(c)
(x) 89(2001) DLT 217
(xi) 2000 AIR 278
(xii) AIR 1965 SC 1231
(xiii) 1999 RLR 114
(xiv) (2000) 3 SCC 460
(xv) 2006 IX AD(Delhi) 647
39.On the other hand counsel for defendants UOI/LAC has
also relied upon the following judgments in support of his
contentions:
(i) (2012) 1 SCC 690
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
21
(ii) (2012) 1 SCC 694
(iii) 122(2005) DLT 586(DB)
(iv) 2009 VII AD(Delhi) 365
(v) AIR 1996 SC 523
(vi) AIR 1996 SC 524
(vii) 89(2001) DLT 495(DB)
40.The case of both the parties is mainly based upon four
primary arguments, which have been addressed both by Ld.
counsel for LAC/UOI and the plaintiffs. First of all counsel
for LAC/UOI has argued that this civil court has no
jurisdiction to try the present suit pertaining to the land
acquisition proceedings, as the land acquisition Act in itself
is a complete code, therefore no suit can be filed in any civil
court for declaration or of any consequential relief with
regard to acquisition proceedings, he has also argued that
the present suit for declaration and permanent injunction as
well as suit for possession is barred by limitation in view of
law relied upon by counsel for UOI/LAC (Supra). He has
thirdly argued that the present suit is barred U/s 34 of
Specific Relief Act, in view of the judgment(s) relied upon by
counsel for LAC/UOI. He has further argued that the
plaintiffs are not entitled to the reliefs claimed in the present
suit, as plaintiffs including their predecessor had
participated in the acquisition proceedings by filing reply
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
22
and also due to the fact that the plaintiffs did nothing with
regard to the declaration U/s 6 of the Act, which was made
in the year 1966 and the award which was made in the year
198182. The plaintiffs did nothing during such a long span
of time by moving any court challenging the said declaration
and remained silent for all these years which shows that
they were not interested in any legal proceedings
challenging the said award/acquisition proceedings,
therefore there are laches and acquiescence on behalf of the
plaintiffs. The conduct of the plaintiffs is such it amounts to
the waiver their rights in favour of UOI/LAC, therefore
plaintiffs are not entitled to the relief claimed in the present
suit.
41.Ld. Counsel for plaintiffs have vigorously rebutted the
above arguments of Ld. Counsel for UOI/LAC by arguing
that present suits were very much maintainable as the entire
proceedings of acquisition were void ab initio being
purportedly based upon Section 4 notification of LAC dated
13.11.1959, whereas the suit land was covered by
notification dated 24.10.61.
42.Issues No. 3 & 4 is stated to have already become
redundant, as it was stated on behalf of plaintiffs on
24.11.12, that since the plaintiffs had already filed a suit for
possession in respect of 1 Bigha 5 Biswas out of the suit land,
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
23
whereby the plaintiffs admit that the defendants had already
taken over the possession of the land measuring 1 Bigha 5
Biswas and further the defendants in their amended written
statement had also admitted that the suit land was covered
U/s 4 notification dated 24.10.61 and not under 13.11.59. In
these circumstances, issues No. 3 & 4 in suit No .435/06/83
were not pressed. Consequently they are disposed off as not
pressed in view of the aforesaid averments made by the
plaintiff on 24.11.12.
43.Taking into account four primary objections raised by Ld.
Counsel for UOI/LAC my issue wise findings are as under:
ISSUE No. 2(in suit No. 435/06/83)
44.The onus to prove this issue was upon the plaintiff. In both
the above cases, consolidated evidence has been lead on
behalf of parties vide order dated 26.09.01. PW1 Sh. Kalka
Prasad Aggarwal one of the plaintiffs has himself appeared
in the witness box and has proved notice U/s 80 which is
stated to have been served by his father which is ExPW1/3,
registered AD and postal receipts are ExPW1/4 and Ex
PW1/5 respectively. He also stated that notice was duly
served as the registered envelope was not received back.
PW1 has stated that the said notice U/s 80 was sent to UOI
and the land acquisition collector through his counsel Sh.
Kalka Prasad who has himself stated that he had given
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
24
notice on behalf of his father and the same was duly sent
through registered post and to this there has been no
rebuttal evidence lead on behalf of the defendant.
Consequently, plaintiffs have been able to prove that a valid
notice U/s 80 CPC has been duly served upon UOI/LAC. In
any case, the only requirement for a valid notice U/s 80 CPC
is that it should be in writing and that it should be delivered
at the office of the Government or Public Officer stating the
cause of action, name and description of the plaintiff and
the relief(s) which he claims. The aforesaid notice ExPW1/3
meets all the necessary requirements stipulated U/s 80 CPC
of such a valid notice. Therefore I hold that a valid legal
notice U/s 80 CPC had been issued to the UOI/LAC before
filing the present suit for declaration and injunction i.e suit
No. 435/06/83. This issue is decided in favour of the plaintiff
and against the defendants.
ISSUE NO. 5( both in suit No. 434/06/94 and 435/06/83)
45.Both these issues are taken up together, as they are
interconnected with each other.
46.The major bone of contention between the parties is based
upon these issue(s). The plaintiff had initially filed a suit
praying a declaration dated 15.12.66 and award No. 49 of
8182 in respect to Khasra No. 1283/67/2, with respect to
Village Kilokri, Delhi be declared as illegal, void and without
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
25
jurisdiction and also claiming further relief that the
defendants be restrained by issue of perpetual injunction
from interfering with the possession over the said land and
from taking possession of the said land in pursuance of the
aforesaid award. However, the relief of declaration was
given up by the plaintiffs on 20.12.02 and the present suit
No. 435/06/83 only remains with regard to relief of
injunction as claimed in the prayer clause, Section 4
notification issued under the Act dated 13.11.1959 is
admitted between the parties which is ExDW1/1 and the
declaration U/s 6 of L.A Act dated 15.12.66 has been proved
as ExDW1/2 and the award dated 26.12.81 bearing No. 49 of
8182 is ExDW1/10. It has been admitted by LCA/UOI by
filing amended written statement that the suit land is not
covered by the notification U/s 4 of LA Act dated 13.11.1959,
but the same is covered by the notification dated 24.10.61.
The said notification dated 24.10.61 is not disputed. The
copy of the same has been filed on the record, but the same
has not been exhibited, but the judicial notice of the same
can be taken, as it is a public document, even otherwise the
same is not disputed, the same has been exhibited now as
ExPX.
47.In this factual admitted matrix the counsel for defendant
UOI/LAC Sh. Rajneesh Kumar Sharma has argued that even
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
26
if the suit land is not covered vide notification U/s 4 of 1959
even then a declaration U/s 6 dated 15.12.66 and the
consequent award dated 26.12.81 are valid, as at the most it
can be said that there was a clerical error with regard to the
date of notification U/s 4 where instead of 24.10.61, 13.11.59
was written thereby no prejudice has been caused to the
plaintiffs and even otherwise it has been admitted by the
plaintiffs that their predecessor in interest had been
participating in the proceedings before Land Acquisition
Collector, which were initiated under the relevant
provisions of L.A Act for determination of compensation
including hearing the objections and even after
participating in the said proceedings for a long period of
time, the plaintiffs refrained from challenging the
declaration dated 15.12.66 and remained silent for almost 13
years, therefore present suit for declaration suffers from
laches and acquiescence on behalf of the plaintiffs, therefore
plaintiffs are estopped by their conduct from challenging
the notification U/s 6 of LAC Act dated 15.12.66.
48.No doubt PW1 in his cross examination has admitted that
his father had raised objection before LAC when the
proceedings for acquisition were started, that the LAC had
no jurisdiction to pass the award as the land in dispute was
not covered by notification ExDW1/1. Inspite of that
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
27
objection LAC had passed the award but he had not filed
copy of that objections on this file. He further stated that it
was correct he had not filed the objections, at the time of
filing of objections his father was alive and he cannot give
the exact date of filing of the objections before LAC.
However, merely because the father of predecessor in
interest of the plaintiffs had filed filed objections before LAC
does not mean that they had acquiesced in the said
proceedings if the plaintiffs are able to show that the said
entire proceedings were void ad initio, which is the crux of
their arguments.
49.Under the broad scheme of L.A Act, whenever it appears to
the appropriate government that land in any locality is to be
needed for any public purpose, a notification to that effect is
published in official Gazette and other newspapers
published in the locality. Thereafter any person interested in
any land which has been notified U/s 4 within 30 days from
the date of such publication, may object to the acquisition
of the said land by filing objections before Collector in
writing and the collector has to give objector an opportunity
of being heard, thereafter collector after hearing of such
objections and making such further inquiry makes his
recommendations together with the record of proceedings
done by him for the decision of the appropriate government.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
28
50.Thereafter if the appropriate government is satisfied after
considering the report if any made U/s 5A that any
particular land is needed for public purpose then a
declaration is made in this regard U/s 6 of the Act the said
declaration is also published in the official gazette and the
newspapers published in the area in question. Thereafter
U/s 7 of the Act whenever any land has been declared U/s 6
to be needed for public purposes then an appropriate
government or some officer authorized by the appropriate
government directs the collector to take the order for the
acquisition of the land. Thereafter the land is to be marked
out, measured and planned as per Section 8 and as per
Section 9 notice is given by the collector to the persons
interested stating that the government intends to take
possession of the land and that the claims to compensation
for all interests in such land may be made to him and the
said objectors are required to be filed before the Collector
within the time stipulated U/s 9. Thereafter as per Section
11 of the Act, after inquiring into the matter and considering
the objections the collector may pass an appropriate award
for compensation taking into account the factors
enumerated therein and as per Section 13A the collector
may, at any time but not later than 6 months from the date
of the award or where he has been required U/s 18 to make a
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
29
reference to the court, before the making of such a
reference, by order, correct any clerical or arithmetical
mistakes in the award or errors arising therein either on his
own motion or on the application of any person. However,
no such corrections can be made which are likely to affect
prejudicially any person, unless such person has been given
a reasonable opportunity for making representation. As per
Section 16 when the Collector has made an award U/s 11, he
may take possession of the land, which shall thereupon
absolutely vest in the government free from all
encumbrances, which is the general scheme of Land
Acquisition Act. Under Section 17 of the Act, in cases of
extreme urgency an appropriate government may so direct
the Collector, though no such award has been made on the
expiration of 15 days from the publication of the notice
mentioned in Section 9 take possession of any land for a
public purpose, then thereafter such land shall absolutely
vest in the government free from all encumbrances. As per
Section 18 any person interested who has not accepted the
award may by written application to the collector, require
that his matter be referred by the collector for determination
of the court. It may be with regard to the amount of
compensation all the persons to whom the same is payable
and so on.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
30
51.Regarding the arguments of Ld. Counsel for LAC/UOI that
in the present case, it can be at the most be said that there
was an arithmetical and clerical error on the part of the LAC
wherein in the declaration U/s 6 of the Act instead of
24.10.61 the date of 13.11.59 was mentioned and the Land
Acquisition Collector had ample powers to correct the said
clerical error as per Section 13A of the said Act, therefore it
does not give any vested right to the plaintiff now to
challenge that award and proceedings/award emanating
therefrom. The said arguments of Ld. Counsel for LAC/UOI
is without any substance as per Section 13A the said
clerical/Arithmetical mistake can be rectified within 6
months from the date of the award, which is not the case in
hand. It is not the case of UOI/LAC that they came to know
about the said mistake within 6 months from the passing of
the award.
52.In any case, as per provisio to Section 13A no correction,
which is likely to seriously prejudice any person can be
done, unless reasonable opportunity is given to him for
making representation in the present case whether the land
in question was covered U/s 4 dated 13.11.1959 or 24.10.61
makes a substantial difference to the plaintiffs with regard to
the amount of compensation, which may have been payable
to them under LA Act, therefore even otherwise such a
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
31
material correction could not have been made without
giving any notice to the plaintiffs or their predecessor in
interest. The entire acquisition proceedings which have
been done by the LAC/UOI have been done on the basis of
notification U/s 4 of LAC Act dated 13.11.1959, whereas it
has been admitted by Ld. Counsel for UOI/LAC that land in
question was covered by notification U/s 4 of LAC Act dated
24.10.61 and not under the notification U/s 4 dated
13.11.1959.
53.Regarding the arguments of Ld. Counsel for the the
LAC/UOI that the jurisdiction of civil courts is barred as the
Land Acquisition Act is a self contained code which is a
complete code in itself wherein the detailed procedure for
challenging the acquisition has been laid down including
the remedies for the person whose land is acquired,
therefore present suit was not maintainable.
54.Counsel for plaintiffs has relied upon two judgments AIR
1996 Delhi 206 titled as Roshanara Begum Vs. UOI & Ors.,
and another case titled as Kalka Prasad Aggarwal & Anr.
Vs. Lieutenant Governor of Delhi & Ors,
2010(IV) AD Delhi
634 in support of his contention that declaration U/s 6 of
the LAC Act and the award U/s 11 made in respect of land
not covered U/s 4 notification is void ab initio and he has
relied upon following paras of the judgment of Roshanara
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
32
Begum Vs. UOI & Ors.
197. In our view, once it is shown
that there was no notification issued
under section 4 pertaining to the
particular land, the subsequent
proceedings being void, the petitioner
would not be barred from challenging
such proceedings even belatedly. So,
this provision is liable to be allowed.
198. Both these writ petitions also
have the same point and so they have
also to be allowed.
199. In these cases, the
notifications under section 4 were
issued earlier in 1956 pertaining to the
land of the petitioners but those
notifications lapsed and no further
proceedings were taken in respect of
those notifications. A section 4
notification was then issued in 1959
which according to the petitioners did
not include the land of the petitioners.
The notifications which had been
issued under section 4 in 1959 only
had given the blocks which have been
delineated on the map attached with
the notification.
200. The Learned counsel for the
petitioners has pinpointed the land of
the petitioners from the map furnished
by him which makes it clear that this
land of the petitioners is not covered
by any of the blocks mentioned in the
maps published along with section 4
notification.
Suit Nos. 434/06/94 and 435/06/83
Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
33
201. Hence, we come to the
conclusion that the notification in
question issued under section 4 of the
Act did not pertain to the land of the
petitioners and thus subsequent
declaration issued under section 6 and
the award made on the basis of the
said declaration are null and void and
thus these writ petitions are liable to
be allowed and the acquisition
proceedings of the said land of the
petitioners are liable to be quashed.
55.He has further relied upon the judgment 2010(IV) AD Delhi
634 SUPRA, Kalka Prasad case, relevant paras are
reproduced as under:
19.It is, thus, the submission of the
petitioners that the period of six (6)
months as stated aforesaid has long
passed and no mistake has been
corrected. It is also the submission of
the petitioners that the plea of the
respondents that the petitioners can
get their compensation determined under section 18 of the said act is also misconceived as the reference court would have to go by the date of the award of 13.11.1959 which is not the relevant date for determination of compensation. It is pleaded that in such a case delay and laches cannot come in the way of the petitioners which delay and laches are in any case explained as the petitioner had no knowledge about the proceedings. It Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
34has been urged that in any case, the respondents conduct also has to be examined in respect of delay and laches as the scheme of the act envisages the respondents to take possession but admittedly no possession was taken over in the last half a century.
20.On the other hand, the respondents have rested their case on the aspect of delay and laches in challenging the award and on the principle that the award is only an offer of compensation after its determination and the option is available to the petitioners to seek enhancement of compensation.
21.In order to appreciate respective pleas learned counsels for the parties have referred to various judgments.
22.Learned counsels for the petitioners referred to the Division Bench Judgments of this court in Sandeep Kakkar & Ors. Vs. Union of India & Ors. 2004 IV AD (Delhi) 89 = 111 (2004) DLT 291.
23.It was observed in the said judgment that once there is no notification issued under section 4 of the said Act qua the land of the petitioners any further action vis a vis declaration under section 6 of the said act or passing of award would be without jurisdiction and ultra vires. In the said case neither possession was taken over nor award enforced nor any Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
35objections raised by the respondents to the maintainability of the writ petition on ground of delay, laches or waiver as no return had been filed.
24.Learned counsel also submitted by reference to Matwal Chand Vs. Union of India 2004 V AD (DELHI) 254 = 2004 (75) DRJ 461 that if the notification under section 4 of the said act excluded evacuee property from acquisition and undisputedly the land was evacuee property, the notification did not cover the said land and the declaration issued under section 6 of the said act was consequently illegal.
25.Learned counsels for the petitioners emphasized that it should not be lost sight of that proceedings under the said act are expropriatory in nature and the provisions of the statute should, thus, be strictly construed as it deprives a person of his land without consent in view of the observations of the Supreme Court in Hindustan Petroleum Corporation Limited Vs. Darius Shapur Chennai & Ors. 2005 VIII AD (S.C.) 65 = JT 2005 (8) SC 470.
26.On the other hand learned counsel for the LAC made elaborate submissions to defend the conduct of the respondents and to canvass the plea that despite the awards referring to some other notification under section 4 of the said act, the notification should not be struck down and at best the petitioners should be Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
36left to the remedy of seeking enhancement of compensation under section 18 of the said act by reference to the notifications of a subsequent date which covered the land of the petitioners. In this behalf learned counsel referred to the judgment of the Division Bench of this court in Babu Ram & Ors. Vs. Union of India 2005 VIII AD (D.H.C.) 717 = 125 (2005) DLT
259. It was submitted that the plea of section 6 of the said act being void ab initio and non est in the eyes of law and thus delay and laches not standing in the way of the petitioners had been rejected. A void order may be challenged at any stage but once the order is enforced any writ petition filed subsequent to such enforcement would give rise to consideration of delay. Learned counsel sought to draw a distinction between a voidable order and a void one to advance the plea that the award in question at best could be said to be voidable.
27.Learned counsel, thus, submitted that the words of Lord Radcliffe as upheld in Babu Ram & Ors. Case (Supra) that the impugned notification does not "bear the brand of invalidity upon its forehead" would equally apply to the present case.
28.Learned counsel also sought to draw strength from observations made by a Division Bench of this court in Santosh Kumar & Ors. Vs. Union of Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
37India & Ors. 2006 VII AD (Delhi) 7 for the plea of delay and laches. The said judgment relied upon the observations in Aflatoon & Ors. Vs. Lieutenant Governor of Delhi & Ors. AIR 1974 SC 2077 where while observing that a valid notification under section 4 of the said act was sine qua non for initiation of the proceedings for property it was held that there was no reason why the petitioner should wait to challenge the validity of such a notification on the ground that the particulars of public purpose was not specified therein. Another judgment referred to in that case is State of Rajasthan & Ors. Vs. B. R. Laxmi & Anr. (1996) 6 SCC 445 on the supreme court setting aside the exercise of power by the High Court under Article 226 of the constitution of India in case where an award was passed and possession was taken. In that context, it was observed that though the order may be void, if a party does not approach the court within reasonable time which is always a question of fact and have the order invalidated, it would amount to it having acquiesced or waived by its conduct.
31.We have examined the rival pleas. The factual matrix is not in dispute. The awards in question are predicated on a notification under section 4 of the said act dated 13.11.1959. The complete awards not only use the date Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
38of the notification as 13.11.1959 in one place but the same date is repeatedly referred to in the award. If one may say so the thread which runs through the award is of the notification dated 13.11.1959 and compensation has also been computed on that basis. A question arises whether the same can be said to be a mistake or even a non application of mind which would not call for interference by this court but would relegate the parties to have their compensation adjudicated under section 18 of the said act? In our view the answer to the same is in the negative.
32.The respondents cannot be permitted to hide behind the plea of a mere typographical error or mistake in the award nor the date of the notification under section 4 of the said act could be said to be inadvertently incorrectly recorded. The very compensation has been calculated on that basis as on 1959. The petitioners are right in contending that the mistake, if any, had to be corrected in terms of section 13A of the said act. That is the procedure prescribed under the said act and must be strictly followed. We are fortified in our view because of the observations made in Hindustan Petroleum Corporation Limited case (supra) that the provisions of the said act being expropriatory in nature must be Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
39strictly construed. We cannot ignore the fact that though the right to the land is no more a fundamental right but it remains a constitutional right under Article 300A of the Constitution of India. The procedure by which the LAC hears parties and frame awards requires it to be vetted by the higher authorities. None of these authorities deemed it fit to scrutinize the papers carefully enough though the mistake was apparent. Not only that so called mistake was never sought to be corrected by exercising rights under section 13A of the said act. In the third case, such a right was exercised but only to include an element of compensation which was excluded while calculating compensation for trees.
33.The respondents cannot be permitted to plead in such a case where section 4 notification does not even pertain to the land of the petitioners that the petitioners should be relegated to their remedy under section 18(1) of the said act of seeking enhancement of compensation. The section 18(1) of the said act reads as under : "PART III Reference to court and procedure thereon
18. Reference to court - (1) Any person interested who has not accepted the award may, by written application to Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
40the collector, require that the matter be referred by the collector for the determination of the court, whether his objection be to measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested."
34.The plea of the petitioners is fortified by the conduct of the respondents is not only an award being made on the premises of a notification under section 4 of the said act which does not pertain to the land of the petitioners but to the factum of the respondents having taken no steps to take possession of the land. The procedure under the said act is to be completed with possession of the land being taken as the purpose of acquisition is a public purpose. The idea is not to complete paper work to acquire the land and thereafter sit quiet for half a century. Thus, there is force in the contention of the petitioners even on this account.
35.If the factum of the awards being predicated on a notification under section 4 of the said act not pertaining to the land of the petitioners and compensation being calculated accordingly is coupled with the failure of the respondents to take any steps to take possession of the land for almost half a century, we have no doubt that Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
41the only result can be to quash the awards in question insofar as the petitioners are concerned. The Bible of the respondents, Roshanara Begum case (Surpa), in fact, supports the case of the petitioners if the observations in para 196 & 197 are taken into account. Learned counsels for the respondents has tried to distinguish this case on the basis that in that case there was no section 4 notification though the same does not form the basis of the award. We see no difference on account of the same since the award is predicated on a section 4 notification which does not cover the land of the petitioners.
56.The ratio of law laid down in the said judgment is squarely applicable to the facts and circumstances of the present case. In the said case the Hon'bl e High Court has held that the awards in question are based on a notification under section 4 of the said act dated 13.11.1959. The complete awards not only use the date of the notification as 13.11.1959 in one place, but the said date is repeatedly referred to in the award and respondents cannot be permitted to hide behind the plea of a mere typographical error or mistake in the award nor the date of the notification under section 4 of the said act could be said to be inadvertently incorrectly recorded. The very compensation has been calculated on that basis as on 1959. The Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
42petitioners are right in contending that the mistake, if any, had to be corrected in terms of section 13A of the said act. That is the procedure prescribed under the said act and must be strictly followed and that the provisions of the said act being expropriatory in nature must be strictly construed. The procedure by which the LAC hears parties and frame awards requires it to be vetted by the higher authorities. None of these authorities deemed it fit to scrutinize the papers carefully enough though the mistake was apparent. Not only that so called mistake was never sought to be corrected by exercising rights under section 13A of the said act. In the third case, such a right was exercised but only to include an element of compensation which was excluded while calculating compensation for trees. The Hon'b le High Court also held that if the factum of the awards being predicated on a notification under section 4 of the said act not pertaining to the land of the petitioners and compensation being calculated accordingly is coupled with the failure of the respondents to take any steps to take possession of the land for almost half a century, then they have no doubt that the only result can be to quash the awards in question. The Hon'b le High Court has further held that the case of Roshanara Begum case (Surpa) supports the case of the petitioners if the observations in Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
43para 196 & 197 are taken into account.
57. In the above case also the fact in issue was same, as the notification was issued U/s 4 of the Act dated 13.11.1959 and the land of the petitioner was not covered under the said notification. However, another notification was issued U/s 4 of the said notification dated 24.10.61, the land of the petitioner(s) was situated in khasra No. 1283/67/2 situated at Village Kilokari, Delhi measuring 1 bigha 5 biswas and a declaration U/s 6 was made on 15.12.66 and the late petitioner during his lifetime filed a petition praying that land of the petitioner bearing khasra No. 1283/67/2 was not part of notification U/s 4 dated 13.11.1959, which is also precisely the issue in this case, therefore the above judgment(s) of the Hon' ble High Court whereby the Hon'b le High Court has quashed the awards on the basis that the land of the petitioner not covered by notification dated 13.11.1959, but was covered by notification dated 24.10.61 resulted in quashing of proceedings and awards based upon the said proceedings. Same is the position of the present case. In view of judgment titled as Roshanara Begum Vs. UOI & Ors.,the entire proceedings done by UOI/LAC on the assumption that the land in question was covered by notification dated 13.11.1959 is void ab initio. It may be noted herein that the predecessor in interest of the Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
44petitioner had also preferred a writ petition before Hon'bl e High Court challenging that the land in question was being acquired without being notified under LA Act and therein the stand of the respondent was that the land was being acquired in pursuance to the notification issued on 13.11.1959 and notification U/s 6 dated 15.12.66. Hon'b le High Court in CW No. 2658/81, copy of which is ExPW1/2 disposed off the said writ petition with the following observations: The petitioner came to this court with the allegation that the land is being acquired without having been notified under the Land Acquisition Act. The stand of respondents is that the land is being acquired in pursuance of notification issued under section 4 on 13.11.1959 and a notification under section 6 of 15.12.1966. Mr. Aggarwal however presses us to hold that notwithstanding this denial the land is not covered. For that purpose he has referred us to Annexure C a plan attached by him and says that the land covered by the notification of 13.11.1959 is that which he has coloured and his land which he has marked as Y is outside that. He therefore urges that his land is not so covered. The difficulty however in the way of examining this matter is that evidently all this requires evidence Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
45because in the notification of 13.11.1959 only boundaries are described and no khasra numbers as such are mentioned. It is not the petitioners case that any particular property is indicated in the notification of 13.11.1959 and the petitioners' land is not mentioned in that. Mr. Aggarwal wishes to demonstrate his point by showing from the plan by drawing lines etc.. This evidently cannot be done in these proceedings being a matter of dispute and requiring evidence both oral and documentary.
Mr. Aggarwal then sought to urge that in the alternative he had also raised the point (which has also been raised in some other petition which has been admitted by this court) that the notification being of 1966 and the award being given now in 1982 it should be held that the land is no longer under acquisition . The problem however, is that Mr. Aggarwal is not willing to give up his plea that the land in dispute is not covered by the notification of 13.11.1959.
Evidently, therefore, one of the points which he seeks to urge is a point which cannot be examined in these extraordinary proceedings. The present is thus a mixed petition in which the very fact whether the land is under acquisition or not is Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
46being disputed and the alternative question whether an award given after a delay defeats the earlier acquisition proceedings cannot be thus entertained on the basis of assumptions. As Mr. Aggarwal understandably is not willing to give up this plea and concede that the land is covered by 13.11.1959 notification is is manifest that his mixed petition cannot be entertained and decided in these proceedings under Article 226. The petition is therefore misconceived and is dismissed. Interim order which had been given on 04.12.1981 will naturally stand vested.
58.The Hon' ble High Court dismissed the said petition on the ground that it involved a mixed question of facts and law which cannot be decided in proceedings U/s 226 of the constitution. In these circumstances, the petitioner cannot be said to be remedy less, as they had also preferred a writ petition before Hon' ble High Court, which was dismissed with the observations that the question raised by way of said writ petition was mixed question of facts and law which cannot be decided in writ petition U/s 226 of the Constitution of India, consequently the present civil suits would be very much maintainable. In any case, the le High Court in Kalka Prasad judgment of the Hon'b Aggarwal case(SUPRA) is squarely applicable to the facts Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
47and circumstances of the present case, as a resultant the entire proceedings done by the LAC/UOI are void ab initio, since when law prescribes that a particular thing has to be done in a particular way, then it should be done in that way or it should not be done at all. As discussed above since writ petition had been dismissed with the observations that the issue raised by petitioner involved mixed question of facts and law which cannot be decided in writ petition, therefore present suit for injunction is very well maintainable and even otherwise it has been held in Judgment 89(2001)DLT 217 that if the nature of controversy requires evidence to be lead, in a trial with opportunity of cross examination the same is not a fit case to be entertained in exercise of writ jurisdiction. The petitioner was permitted to seek remedies in civil forum. In these circumstances the present suit for injunction is very much maintainable.
59.Counsel for UOI/LAC has relied upon judgment 122(2005) DLT 586(DB) titled as Bahadur Singh & Ors Vs. Union of India & Ors., on the point that the jurisdiction of civil courts was barred in the present case, as land acquisition Act is self contained code and complete code in itself. The detailed procedure laid down for challenging various actions contained under Act and remedies sought for are provided in the Act itself, consequently the present suit is not Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
48maintainable. He has more specifically relied upon para 13 of the said judgment which is reproduced as under:
13. Having held thus, we may now decide the other issue which arises for our consideration regarding the maintainability of the suit in the civil court. It is no longer res integra that the Land Acquisition Act is a self contained code and is a complete code in itself. The acquisition proceeding comprises of various steps and on completion of the steps, finality and conclusiveness is provided to said steps by operation of section 6(3) of the act.
The declaration is deemed to be a conclusive proof of the acquisition of the land in question. Similarly by virtue of section 12 of the Act, the award is final and conclusive subject to the exception as to the measurement of the land, true amount of compensation and the person entitled to the compensation. It is also statutorily provided that after communication of the award, the Government is entitled to take possession of the land covered under the award. Upon taking over the possession of the land under section 16, the same vests in the Government free from encumbrances and, therefore, the acquisition proceedings cannot be questioned on any ground whatsoever.
Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
49Consequently, after the acquisition proceedings have been upheld by this court as also by the Apex Court, the only other subject that was left out was to take possession of the land under section 16 of the Act. It is not disputed that when the respondents took steps to take possession of the lands, the present suit was filed and an injunction was obtained. It is also clearly established from the nature of the challenge made in the present suit that the appellants are seeking for a declaration that their lands are not covered by notification issued under section 4 and declaration under section 6 of the act and, thus, free from acquisition. It is also prayed that consequently the award is also without jurisdiction and null and void. Thus, the appellants are in fact challenging the act of the Government whereby their lands have been included in the declaration and the award which is an act under the act which has reached finality after dismissal of the writ petition and the SLP. A detailed procedure having been laid down for challenging the various actions contained under the Act, remedy is to be sought for as provided for in the said act or under the writ court which exercises such jurisdiction. Such a remedy cannot Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
50be looked into and sought for in the civil court merely because the appellants in the suit cleverly did not seek for a relief about quashing of the declaration and the award but what is sought for in the suit clearly amounts to seeking for quashing of the declaration and the award in respect of the lands of the appellants. In our considered opinion, no relied could also be granted to the appellants in the suit without quashing the declaration and the award which already stands upheld even by the Supreme Court in the writ proceedings filed by the appellants. Therefore, it was appropriately held by Ld. Trial Court that the aforesaid civil suit is not maintainable. The findings and conclusions that we have arrived at also find from the decisions of the Supreme Court in S.P. Subramanya Shetty & Others Vs. Karnataka State Transport Corporation & others (1997) 11 SCC 250; Laxmi Chand & Others Vs. Gram Panchayat, Kararia & Others ( 1996) 7 SCC 218 ; State of Bihar Vs. Dhirender Kumar 1995 (4) SCC 229 & Narayan Prasad Aggarwal Vs. State of M.P. III (2003) SLT 454 = (2003)11 SCC 456.
60.I have gone through the above judgment relied upon by the counsel for UOI/LAC. In my respectful view the said judgment is not applicable to the peculiar facts and Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
51circumstances of the present case, as in the present case not only the plaintiffs, but also the defendants are saying that the land is not covered under the notification U/s 4 LAC Act dated 13.11.1959, but the same is covered by the notification dated 24.10.61 and the entire proceedings have been done by LAC/UOI pertaining to acquisition on the premise and based upon the notification dated 13.11.1959, whereas the land in question is admittedly covered by the notification dated 24.10.61 and not by the notification U/s 4 of LAC dated 13.11.1959, therefore the very basis on which the land acquisition proceedings have been initiated is void ab initio in view of the judgments discussed above.
61.Further in that case the SLP challenging the award had been dismissed upto the Hon' ble Supreme Court, whereas in the present case it is not so, rather in another case filed by the same petitioner i.e Kalka Prasad Aggarwal case (Supra), the Hon' ble High Court of Delhi had quashed the award on the basis of notification dated 13.11.1959 which did not cover the land of the plaintiffs. The said judgment squarely covers the present case. Further the writ petition preferred by the petitioner ExPW1/2 has already been dismissed by the Hon'bl e High Court saying that disputed question of facts cannot be decided in the writ petition, hence the civil suit before this court would be maintainable.
Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
5262.Counsel for UOI/LAC has also relied upon a Judgment AIR 1996 Supreme Court 523 on the same point that the jurisdiction of civil courts was barred, as L.A Act was self contained code and complete code in itself. In my respectful view the said judgment of Hon'b le Supreme Court is also not applicable to the peculiar facts and circumstances of the present case, as in that case petitioner challenged the notification U/s 4 of LA Act on the ground that it be declared that the land in question cannot be acquired having once dropped by Acquisition Officer then reopening the acquisition again at the instance of Gram Sabha. This is not the point in issue in the present case, as the very basis on which proceedings under L.A Act had been commenced are nullity, as the notification dated 13.11.1959 has no nexus with the suit land, further in the present case the petitioners are not challenging the acquisition on the ground that their land cannot be acquired U/s 4 of LA Act but their contention is that the notification dated 13.11.1959 U/s 4 of LA Act does not cover the land of the petitioners, therefore the entire proceedings emanating therefrom was void ab initio.
63.Counsel for LAC/UOI has also relied upon the judgment AIR Supreme Court 1955 on the same point more specifically para 2A of the said judgment which is reproduced as under:
Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.53
"2.A The question is whether a civil suit is maintainable and whether interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued U/s 9 of the At and delivered to the beneficiary. The provisions of the Act are desigined to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in Section 4 and Section 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration U/s 6, the public purpose gets crystallised and becomes conclusive. Thereafter, the State is entitled to authorize the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11A, now prescribes limitation to make the award within 2 years from the last of date of publication envisaged U/s 6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power U/s 17(4) of the Act and dispense with the enquiry U/s 5A. Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.54
Thereon, the State is entitled to issue notice to the parties U/s 9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award U/s 12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil Court to take cognizance of the case U/s 9 of CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification U/s 4, and declaration U/s 6, except except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction."
64.I have also gone through the said judgment. The said judgment is also not applicable in my respectful view to the peculiar facts and circumstances of the present case, as in the said case also the possession of the land had been taken Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
55by the Land Acquisition Collector on the basis of valid proceedings under L.A.Act and possession given thereof. In the present case the very first step for embarking into a journey under LA Act being void and ultra virus, therefore the Land Acquisition Collector had no jurisdiction for the simple reason, nothing gave jurisdiction to the government or to the Land Acquisition Collector of the land in question, as there was no valid acquisition U/s 4 of LAC covering land of the petitioners. Without that being so, the defendants did not got any jurisdiction to proceed under the relevant provisions of LA Act acquiring the land of the petitioner, which was admittedly not covered by notification dated 13.11.1959 on which the entire acquisition proceedings had been hinged.
65.Further it has been held in judgment AIR 1994 Ahllabad 38 (DB) Ram Jiyawan V/s State of U.P., that the main aim or object or purpose of the L.A.Act is to provide a law which will enable the state to acquire the land of others, therefore the provisions of the Act relating to acquisition of land are substantive and those relating to taking over possession and assessment and payment of compensation are subsidiary, if the mandatory provisions relating to acquisition is breached, the acquisition results in nullification or invalidation of acquisition proceedings, but breach of a Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
56subsidiary provision like taking over of possession will not result in nullification of Land Acquisition proceedings. Admittedly, in the present case mandatory provision for invoking the provisions of Land Acquisition Act that a particular land was required by the government for a public purpose was void ab initio, therefore the entire acquisition proceedings emanating therefrom will be a nullity.
66.Since the entire proceedings U/s 4 of LA Act are based upon the notification dated 13.11.1959, which admittedly does not pertain to the suit land therefore the entire proceedings in view of the aforesaid settled law are void ab initio. Consequently the LAC had got no jurisdiction over the suit land, as nothing got vested with the LAC or government on the basis of proceedings U/s 4 of LAC, the same being void ab initio. All the other provisions under LA Act whereby the land vest either vest with LAC or Government and determination of appropriate compensation hinges upon the existence of a valid notification U/s 4 of LAC if that is not so, then the entire proceedings of acquiring the land based upon a invalid notification U/s 4 and the consequential proceedings emanating therefrom would also be rendered bad in law.
67.Regarding arguments of Ld. Counsel for UOI/LAC that PW1 has admitted in his cross examination that his father Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
57participated in the land acquisition proceedings, therefore he is estopped from challenging those proceedings by filing the present suit for injunction and possession, as the predecessor in interest of the plaintiffs had acquised in the said proceedings which have been also been admitted by PW1 in his cross examination, therefore it can be said that plaintiffs have waived their rights to challenge the notification dated 13.11.1959 and the acquisition proceedings emanating therefrom culminating in passing of the award in question. The said arguments of Ld. Counsel for LAC/UOI is without any legal basis, as it is settled law that there can be no estoppal against a statue and the entire proceedings of LAC in question were based upon the assumption on the basis of a valid notification dated 13.11.1959 which has not been proved to be so and admittedly the UOI/LAC have admitted in their amended written statement that the land in question was covered by notification U/s 4 of LAC Act dated 24.10.61, therefore there cannot be any estoppel in favour of UOI/LAC operating against the plaintiffs due to participation in any such invalid and void ab initio acquisition proceedings.
68.Regarding the arguments of Ld. Counsel for UOI/LAC that the present suit is barred by U/s 34 of Specific Relief Act, such arguments of Ld. Counsel for UOI/LAC is without any Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
58substance, as bar of Section 34 of Specific Relief Act, 1963 is only applicable to those cases where the plaintiffs have only sought relief for declaration in the suit without seeking the consequential relief emanating directly therefrom then the plaintiff is barred from merely filing the suit for declaration where the plaintiff have been unable to seek further relief then a mere declaration, omits to do so.
69.In the present case. Plaintiffs had initially filed a suit for declaration with the consequential relief of injunction. The relief of declaration has already been given up on 20.12.12 and plaintiffs have only claimed the relief of injunction in the present suit and the present suit is now only having relief of injunction simplicitor, therefore Section 34 of Specific Relief Act would not be applicable to the facts of the present case. Counsel for UOI/LAC has further argued that in the present case plaintiffs were required to seek declaration with regard to the award in question and without seeking such declaration this court has no right to declare that the notification dated 13.11.1959 and the consequential award No. 49 of 8182 was illegal, void and without jurisdiction and further that the notification U/s 6 dated 15.12.66 was also bad in law. The said arguments of Ld. Counsel for UOI is also without any substance, as it is settled law that there is no need in law to seek declaration Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
59with regard to the Act, which is void ab initio. In this regard counsel for plaintiff has relied upon judgment (2000) 3 SCC 460, wherein it has been held as under:
5. As already noticed, in Bhim Singhji Case Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid.
Thus, it has not been and cannot be disputed that the order dated 26.05.1976, was without jurisdiction and a nullity. Consequently, the sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of the plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are a nullity. In Ajudh Raj Vs. Moti this court said that if the order has been passed without jurisdiction, the same can be Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
60ignored as a nullity, that is, non existent in the eyes of law and it is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act.
70.The said judgment is a complete answer to the argument of Ld. Counsel for UOI/LAC in which it has been held that where the order was without jurisdiction and a nullity, any act done pursuant to the said order would also be nullity and it is also not necessary to seek a declaration about the invalidity of the said order and the consequential Act. Therefore in the present case there was no need for the plaintiff to seek declaration about the invalidity of the declaration U/s 6 dated 15.12.66 and the consequential award dated 26.12.81 bearing award No. 49 of 8182 Ex DW1/10, therefore the plaintiff was not required to seek declaration with regard to the same, as it has also been held in the said judgment if the order has been passed without jurisdiction the same can be ignored as nullity, that is, non existent in the eyes of law and it is not necessary the same be set aside.
71.As a consequence the award dated 26.12.81 ExDW1/10 No. Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
6149/81/82 and declaration U/s 6 dated 15.11.66 based upon the assumption that the land of the petitioner was covered by the notification U/s 4 of L.A Act dated 13.11.1959 Ex DW1/2 are illegal and void ab initio and the result would be that the entire acquisition proceedings initiated by the land acquisition collector/UOI would be bad in law and nullity. This issue is accordingly decided in favour of the plaintiff and against the defendants. Issue No. 5 is answered accordingly.
ISSUE NO. 1(in suit No. 435/06/83)
72.Initially the present suit was filed with the relief of declaration and permanent injunction with the prayer that the declaration U/s 6 of Land Acquisition Act contained notification dated 15.12.66 and the award No. 49/81/82 in respect of Khasra No. 1283/67/2 be declared illegal, void and without any jurisdiction and it was further prayed that defendant No. 1 be restrained by issue of perpetual injunction from interfering the possession of said land and from taking over the possession of the said land in pursuance to the said award as discussed above the relief of declaration was given up by the petitioners on 20.12.02. Consequently, the only relief which remains in the present suit was with regard to injunction. Admittedly, the award was passed on 26.12.81 and the present suit was filed on Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
6216.08.83. For claiming the relief of injunction, no limitation has been prescribed. In any case, the cause of action for filing relief of injunction would arise on each day of apprehension of threat or dispossession from the suit land by the defendants and as per article 113 of the Schedule to Limitation Act, any suit for which no period of limitation has been provided the limitation is 3 years when the right to sue accrues, therefore in the present case even if the right to sue is considered to have accrued on passing of award on 26.12.81. The present suit has been filed on 16.08.83 even then the present suit can be considered to be within limitation of 3 years, therefore it cannot be said that the suit of the plaintiff is barred by limitation. This issue is decided in favour of the plaintiff and against the defendants. ISSUE NO. 4 and arguments on the point of limitation(in suit No. 434/06/94)
73.Though no issue with regard to the limitation has been framed in the present suit, but it was vehmentaly argued by Ld. counsel for UOI/LAC that in the present suit, the possession with regard to 1 bigha 5 biswas of land pertaining to part of suit land bearing Khasra No. 1283/67/2, Village Kilokari out of the land measuring 5 bigha 5 biswas was taken from the plaintiffs on 17.06.82 in pursuance to award No. 49 of 8182 and admittedly the plaintiff was Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
63dispossessed from that part of suit land on 17.06.82, whereas the present suit has been filed on 01.07.94. Therefore the limitation for filing the present suit, even if considered to be 12 years has expired on 16.06.94, therefore suit of the plaintiff is clearly barred by limitation.
74.On the other hand, Ld. counsel for plaintiff has argued that in the present case Section 80 CPC notice was required to be given before filing the present suit and the said notice U/s 80 CPC was given on 21.04.94 ExPW1/25, postal receipts are ExPW1/26, ExPW1/27 and ExPW1/28, AD card are Ex PW1/29, ExPW1/30 and ExPW1/31, therefore it has been argued that as per Section 15(2) of Limitation Act the said period of 2 months will be added in the limitation of 12 years that is to say that the limitation was extended by further period of 2 months and the limitation in the present suit would be 12 years 2 months and the present suit has been filed on 01.07.94, therefore within limitation.
75.I have gone through the rival contentions. Admittedly, the plaintiffs have given the notice U/s 80 CPC ExPW1/25 on 21.04.94, as PW1 has proved that the said legal notice U/s 80 CPC and the postal receipts which are ExPW1/26 and Ex PW1/27 and 28 and AD cards ExPW1/29, ExPW1/30 and ExPW1/31. PW1 has not been cross examined on the said aspect either on the ground that the address furnished in the Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
64said legal notice was incorrect or that the said legal notice never reached its destination. Since the said legal notices were addressed to the addressee at a correct address and the AD card has also been received back, copies of which have been placed on record, therefore the UOI/defendant are deemed to have been duly served with the notice dated 21.04.94 sent by the plaintiff U/s 80 CPC. Counsel for plaintiffs has relied upon judgment (2000) 3 SCC 460, relevant portion of which is reproduced as under:
As already noticed, in Bhim Singhji Case Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26.05.1976, was without jurisdiction and a nullity. Consequently, the sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of the plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.65
years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are a nullity. In Ajudh Raj Vs. Moti this court said that if the order has been passed without jurisdiction, the same can be ignored as a nullity, that is, nonexistent in the eyes of law and it is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act.
76.On the other hand, counsel for UOI/LAC has relied upon judgment 2012 (2012) 1 SCC 690 on this aspect. The relevant para 16 is reproduced as under:
16. In our view, proper interpretation of section 15(2) of the Act would be that in computing the period of limitation, the period of notice, provided notice is given within the limitation period, would be mandatorily excluded. That would mean a suit, for which period of limitation is three years, would be within limitation even if it is filed within two months after three years, provided notice has been given within the limitation period. In Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.66
such a case, the period of notice cannot be counted concurrently with the period of limitation. If it is done, then the period of notice is not excluded. Any other interpretation would be contrary to the express mandate of section 15 (2) of the Act.
77.The ratio of law laid down in the aforesaid judgment(2000) 3 SCC 460(Supra) is that when a particular order was without jurisdiction then any act done pursuant to the said order would also be a nullity and it would not be necessary to seek a declaration about invalidity of said order and it was not necessary to seek a declaration about the invalidity of the said order and the fact plaintiffs having sought said declaration is of no consequence and it was further held that when possession had been taken over by the party pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file suit would be 12 years, when these documents are null and void ignoring them the suit for possession simplicitor could be filed and in the course of said suit it can be contended that these documents are nullity.
78.The other judgment (2012) 1 SCC 690 rather supports the case of the plaintiffs. In the said judgment also it has been held that in computing the period of limitation, the period of notice, provided notice is given within the limitation Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
67period, would be mandatorily excluded. That would mean where the period of limitation is three years, the suit would be still within limitation, even if it is filed within two months after three years, provided notice has been given within the limitation period.
79.The ratio of law laid down in the said judgment is squarely applicable to the facts and circumstances of the present case, as the plaintiffs have proved that they had given notice U/s 80 which was mandatory requirement of law before filing the present suit for possession on 21.07.94 and the limitation for filing the present suit was 12 years expiring on 01.07.1994, whereas the notice U/s 80 CPC was given within limitation, therefore the period of limitation for filing the present suit was extended further by 2 months, therefore the said limitation was to expire on 31.08.1994, whereas the present suit has been filed on 01.07.94, therefore the present suit is within limitation. Therefore plaintiffs have been able to prove that a valid notice U/s 80 CPC was served upon the defendants prior to filing of the present suit. This issue is answered accordingly.
ISSUES No. 1, 2 & 3(in suit No. 434/06/94)
80.All these issues are taken up together, as they are interconnected with each other. In view of the above discussion, since the entire proceedings under LAC Act Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
68based upon the notification U/s 4 dated 13.11.1959 is void ab initio, it follows as a sequel to the same that the possession of part of the suit land of 1 bigha 5 biswas taken over by the LAC/UOI from the plaintiffs on 17.06.82 vide Ex DW1/11 was patently illegal and the plaintiffs have been dispossessed from the said portion of land without the process established by law. PW1 in his testimony has proved one judgment ExPW1/32 rendered in suit No. 209/98 in a case titled as Kalka Prasad & Ors Vs. Hans Raj in which UOI through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi was also one of the party in the said suit which was for recovery of possession, arrears of rent and for damages for use and occupation of the suit property being part of Khasra No. 1283/87/2, Mathura Road, New Delhi the then Ld. ADJ was pleased to grant mesne profits to the plaintiff @ 12000/ per month. The said judgment was passed on 07.09.99 in which the mesne profits @ 12000 per month was granted to the plaintiff with respect to the same piece of land.
81.In the present case the plaintiff has claimed mesne profits @ 10000/ per month with respect to the suit filed on 01.07.94, further PW1 in his examination in chief has also stated that the land in dispute had a fine location being situated on the intersection of Ring Road and Mathura Road Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
69and the defendant themselves have filed the plan of the land possession of which had been taken by the defendants, the said plain is ExDW4/1. He has also deposed that the disputed portion of the land is shown in brown colour in the site plan the plaintiffs have claimed damages for use & occupation @ Rs. 10000/ per month and the land could have easily fetched a sum of Rs. 10000/ per month, the said damages are reasonable and one Hansraj was the tenant in respect of 1200 Sq Yds of land out of the said land they had filed a suit for recovery of possession and damages against Hansraj since UOI had taken possession of the part of the land under tenancy of Sh. Hansraj they had also impleaded UOI as a party to said suit. The damages were awarded in that suit at Rs. 12,000/ per month against Hansraj, the certified copy of judgment is ExPW1/32. To this there has been no cross examination done by counsel for UOI disputing the said categorical assertion made by the PW1 on oath, nor any contrary evidence has been lead to disprove the said assertion or to lead any evidence to the contrary that the land could not fetch the rent @ Rs. 10000/ per month in year 1994, when the present suit was filed or that the rate of rent pertaining to the land was much less around the said time. In any case, the judgment relied upon by Ld counsel for the plaintiff ExPW1/32 between the plaintiff Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
70and one Hansraj in which UOI was also party shows that the damages @ 12000/per month was awarded with respect to same piece of land in the year 1999. PW1 has also stated that the suit land was situated at a good location at the intersection of Ring Road and Mathura Road. This claim of PW1 has also not been disputed by any cross examination on this aspect.
82.Counsel for plaintiff has also relied upon judgment 2006 IX AD (Delhi), which is reproduced as under:
74.No discernible rent showing a consistent pattern is emerging. Plot no. 182 having plot size 375 sq. yds. has fetched a rent of Rs. 1.25 lacs per month for the three floors in July, 1999 and plot no. 177 having same size has fetched a rent of Rs. 1.5 lacs per month for only ground floor, plot no. 20 having plot size 1250 sq. yds has fetched a rent of Rs. 1.5 lacs per month on 27.02.1998 for the first floor and second floor. Plot no. 117 having plot size 740 sq yds has fetched a rent of Rs. 1.05 lacs only for the ground floor on 09.07.1997. Larger plots have fetched much lower rents. It is obvious that nature of construction has played a dominant role viz a viz extent of accommodation and plot size.
Therefore, I cannot rely upon the rental data of other properties. Even otherwise, where intrinsic evidence is readily available it would be a sound Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
71principle to rely upon the intrinsic evidence and eschew extrinsic evidence.
75.Suit property was let out on 03.12.2002 at a monthly rent of Rs. 80,000/. Suit property admeasuring 452 sq yds. This lease as of 03.12.2002 shows that the suit property had disadvantages viz a viz property no. 177 and 182 Golf Links. The rent of the suit property is comparable with the rent of property no. 20 and 117 Gold Links. Since suit property itself was let out on 03.12.2002 it would be safe to rely upon the said rent to determine the rent which could have been fetched for the suit property from time to time.
76.As of 01.01.1980 rent of the suit property was Rs. 4375/ per month. It rose to Rs. 80,000/ per month on 03.12.2002. Reckoned from 01.01.1980, 3 years period would expire on 01.01.2003. Thus, increase in rent per years comes to Rs. 3300/ (approx). Compounded annually, percentage increase each year is 13.11%.
77.Thus rent as of 01.01.1991 comes to Rs. 40,675/ per month. As of 01.01.1992 rent comes to Rs. 43,975/ per month. As of 01.01.1996 the monthly rent comes to Rs. 57,175/. As of 01.01.1997 month rent comes to Rs. 60,475/. As of 01.01.1998 month rent comes to Rs. 63775/. As of 01.01.1999 month rent comes to Rs. 67075/. As of Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
7201.01.2000 month rent comes to Rs. 70375/ and As of 01.01.2001 month rent comes to Rs. 73675/.
78.Mesne profits have to be determined for three periods, 01.08.1991 to 31.03.1992, 01.04.1996 to 31.03.1999 and 01.04.1999 to 07.07.2001.
79.During these periods last agreed rent has been paid at the rate of Rs.
4375 per month. Accordingly, I determine the mesne profits per month as under :
a)01.08.1991 to 31.12.1991 .......... Rs. 40675 less Rs. 4375
b)01.01.1992 to 31.03.1992 .......... Rs. 43975 less Rs. 4375
c)01.04.1996 to 31.12.1996 .......... Rs. 57175 less Rs. 4375
d)01.01.1997 to 31.12.1997 .......... Rs. 60475 less Rs. 4375
e)01.01.1998 to 31.12.1998 .......... Rs. 63775 less Rs. 4375
f)01.01.1999 to 31.12.1999 .......... Rs. 67075 less Rs. 4375
g)01.01.2000to 31.12.2000 .......... Rs. 70375 less Rs. 4375
h)01.01.2001 to 07.07.2001 .......... Rs. 73675 less Rs. 4375
80.The aforesaid cover the period for three suits.
61.I award simple interest @ 10% per annum on the mesne profits awarded from the first day of the Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
73succeeding calender month for each month during which defendant no.
1 remained in unauthorized occupation till date of realisation.
83.Counsel for plaintiff has also argued that in view of the said judgment in which it has been held that there has been annual increase of rent to the tune of 13.1% per annum and the court is bound to take notice of the said judgment and to hold that since the rent in Delhi were increasing every year, therefore a minimum increase of 13% per annum in the increase of annual rent can be considered in awarding mesne profits to the defendants and the plaintiffs are also entitled to simple interest on the said mesne profits in view of said judgment. The said arguments of Ld. Counsel for plaintiffs has substantial merits. UOI had taken such a long time in admitting that the land in question was not covered by notification dated 13.11.1959, but was covered under notification dated 24.10.61 by moving an application U/o 6 Rule 17 CPC and if they would have admitted the said fact at the first instance by proper inspection of the said land, to find out whether the suit land was covered by notification dated 13.11.1959 or not, the present matter could have been decided in the writ petition filed by the petitioner in the Hon'b le High Court of Delhi ExPW1/2. Due to this lackadaisical attitude on the part of UOI /LAC, the plaintiffs Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
74had to file the present suit for possession and had to suffer the consequence of taking over of the part of suit land measuring 1 bigha 5 biswas by the UOI/LAC on 17.06.82 without any valid notification U/s 4 of L.A Act based upon void initio proceedings under Land Acquisition Act, therefore the defendants are definitely liable to pay the mesne profits with regard to the rent/income which the defendants who are in wrongful possession of land measuring 1 bigha 5 biswas actually received or might have received after exercizing ordinary diligence from the said land alongwith interest in this regard.
84.The following judgment rendered by Hon'bl e High Court in RFA(s) No. 458/11 and 457/11, In re: M/s M.C.Aggarwal HUF Vs. M/s Sahara India & Ors and M/s Sahara India & Ors Vs. M/s M.C.Aggarwal HUF, decided on 02.09.11 are relevant to the controversy in issue. The relevant paras of the said judgment are reproduced as under:
3. On the aspect of the date till which mesne profits are payable, there is no doubt that mesne profits will be payable till the keys were deposited by the tenants in the court on 03.04.2005 Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.75
inasmuch as there are admissions noted in the impugned judgment that the tenants had removed the walls of the tenanted premises and the original position of the tenanted premises was restored only on 31.12.2004 and whereafter on 03.04.2005 the possession was handed over by depositing the keys in the court on 03.04.2005.
Ld. Counsel for the tenants had only weakly disputed the payment of the mesne profits from 31.12.2004 till 03.04.2005 and has not disputed the liability to pay mesne profits till 31.122004. I therefore hold that mesne profits shall be payable till 03.04.2005.
4. The entitlement of a Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
76landlord to claim mesne profits from a tenant who is in illegal possession of the premises after the tenancy is terminated, is governed by Section 2(12) of CPC, 1908 and which defies mesne profits as under: "Section 2(12) "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
"The above provision has been interpreted in various Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.77
judgments that ordinarily the mesne profits which a landlord is entitled against a tenant who continues to stay in the tenanted premises after the termination of the tenancy is the amount which the premises can fetch if let out on rent during the period of its illegal occupation by the tenant.
6. I therefore hold that the trial court erred in awarding mesne profits at double the admitted rate of rent and set aside the impugned judgment to the extent that it directs that the landlord will be entitled to double the contractual rate of rent as mesne profits inasmuch as the landlord could well have Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.78
but has not led any evidence with respect to rent of similar premises in the locality during the relevant period or any other evidence to show that what would be the rent which would be payable for the subject premises every month during the period of illegal occupation by the tenant.
8. What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.79
in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Cannaught Place, an increase of 15% every year should be awarded(and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have overstayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 03.04.2005. I rely upon and refer to a Division Bench Judgment of Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.80
this court in the case of S.Kumar Vs. G.R.Kathpalia 1999 RLR 114 and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase of rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent.
9. On the issue with respect to whether the landlord is entitled to mesne profits till date because as per the landlord the entire premises have not yet been given back to the landlord, I note that the argument of the landlord is that about only 60% of the tenanted premises have been delivered back but 40% ha not been delivered back and which aspect has been however very vehemently disputed by the counsel for the tenants. I hold that this is an issue with respect to execution of a decree i.e whether the possession of the complete premises has been Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.81
delivered to the landlord or not and if it is found in execution that what was delivered to the landlord on 03.04.2005 was not the complete premises, then, if such a finding is arrived at by the Executing Court the landlord at that stage will be entitled to his remedies. So far as present case is concerned, the issue is only with regard to validity of the decree for possession and I am confirming the decree for possession with respect to the entire suit premises/tenanted premises.
10. The penultimate issue remaining is with respect to the argument of the counsel for the tenants that an exorbitant rate of interest of 20% per annum has been granted by the impugned judgment on the arrears of mesne profits and which thus be set aside. The impugned judgment is not very clear as to for what period and from when this Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.82
interest of 20% per annum simple is payable, though there are observations that the same would be payable for the period during which landlord was deprived of the possession of the tenanted premises. The judgment is not clear whether the interest will be payable on the accumulated amount due on the date of the suit or at the end of each year of illegal occupation or at the end of expiry of tenancy month of illegal occupation.
In my opinion, the interest granted at the rate of 20% per month besides being wholly vague is clearly exorbitant in the present economic scenario where the rates of interest on fixed deposit vary between 6% to 10% per annum. The Supreme Court also in its recent chain of judgments reported as Rajendra Construction Co. V. Maharashtra Housing & Area Development Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.83
Authority and Ors, 2005(6) SCC 678, Mc Dermott International Incl. Vs. Burn Standard Co. Ltd & Ors, 2006(11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G.Harischandra, 2007(2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd (2009) 3 Arb. LR 140(SC) has held that Courts are mandated to reduce high rates of interest which are granted. Accordingly, in the facts and circumstances of this case, I reduce the interest granted by the trial court from 20% to 12% per simple. The interest liability will come into existence at the end of each month of illegal occupation of the tenants on the amount due at the end of the month and till payment thereof. To clarify further, so far as the month of January, 2005 is concerned, interest Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.84
will be payable from 01.03.2005 and similarly with respect to earlier months, the interest will be payable at the end of month of illegal occupation by the tenants. I may note that the Supreme Court has also awarded interest on arrears of mesne profits and one such judgment of the Supreme Court is the case of Indian Oil Corporation Vs. Saroj Baweja 2005 (12) SCC 298.
11. Finally, The Ld. Counsel for the tenants vehemently sought to argue that the mesne profits would only be payable from 01.12.2003 and not from 01.12.2000 when the tenancy expired by efflux of time. This argument is raised on the ground that the tenant had a right to seek a further extension of tenancy and it had duly informed the landlord and exercised this option. It is argued that negotiations were going on for grant of a fresh tenancy, however, no Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.85
registered lease deed could be executed. Ld. Counsel for the tenants also relies upon the findings in his favour given by the trial court which holds that infact a notice was given in time for extension of three years and also that negotiations were in fact going on for grant of a lease of three years.
In my opinion, there cannot be any estoppel against the statue. A lease can be created for a period of three years, on the right having been exercised for an option of extension of a lease for three years only if there is executed and registered an instrument as the same is illegally necessary by virtue of Section 107 of Transfer of Property Act, 1908. If there is no registered lease deed for a fixed period of three years, then, the tenant continues to stay in the premises, not because of any relationship of landlord and tenant pursuant to a Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
86lease of three years but only as an unauthorized occupant after the expiry of lease period by efflux of time. I therefore do not agree with the argument of the Ld. Counsel for the tenants and I hold that since in this case tenancy expired by efflux of time on 30.11.2000 an the suit was filed on 03.04.2001, clearly, the tenant would become liable to pay mesne profits from 01.12.2000.
12. In view of the above, both the appeals are partially allowed by granting the following reliefs to the respective parties:
(i)The impugned judgment granting mesne profits at double the market rate is set aside and the landlord is granted mesne profits @ 15% compounded increase every year from the Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
87contractual rate of rent which was due and payable on 01.11.2000 as elaborated above in the judgment.
(ii)In addition to mesne profits with annual increase of 15% per annum compounded, the landlord is also entitled to interest on arrears of mesne profits @ 12% per annum simple from the end of each illegal month of occupation and till payment of the arrears alongwith interest to the landlord.
(iii)The mesne profits will become payable from 01.12.2000 till 03.04.2005 by virtue of Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
88the fact of the tenant continuing in illegal possession of the suit premises although the lease had expired by efflux of time.
The impugned judgment is sustained and the argument of landlord is rejected on the aspect that in addition to the mesne profits as granted above the landlord is entitled to the executive class air tickets for the period of illegal occupation of the tenants.
85.The principle of law laid down in the said judgments would also be applicable to the facts of the present case. Since the plaintiff had been dispossessed from the portion of the suit land measuring 1 bigha 5 biswas on 17.06.82 by the defendants without any valid legal authority on the basis of void ab initio award, therefore the defendants are definitely liable to pay mesne profits/damages with respect to the said portion of land for the period, as prayed in the suit. Plaintiffs are entitled to the amount which the said land could have fetched if let out during the period of its illegal occupation by the defendants. In the said judgment the Hon'b le High Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
89Court has also held that judicial notice can be taken of the increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. Considering the fact that for the centrally located commercial localities of Delhi, situated in Cannaught Place, an increase of 15% every year should be awarded during the period for which the tenants have overstayed in the tenanted premises and it was also held that for the first year of illegal occupation, the tenant shall be liable to pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over original contractual rent plus the additional 15% which will be accordingly for all the subsequent years of the illegal occupation till the premises are vacated and it was also held that landlord would also be entitled to the interest @ 12% simple interest on the said mesne profits so determined. The principle of law laid down in the said judgment is also applicable to the facts and circumstances of the present case.
86.No doubt the premises in question cannot be said to be so strategically situated, as was in that case as it was situated in Cannaught Place. In the other case relied upon by the plaintiffs 2006 IX AD(Delhi) 647(Supra) the premises were located at Golf links, but at the same time it is admitted Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
90position that the land in question was also located at the intersection of Ring Road and Mathura Road. In these circumstances, since the land in dispute was also situated at a good and prime location at the intersection of Ring Road and Mathura Road, therefore the plaintiff would be definitely entitled to an increase of 10% every year during the period for which the defendants remained in illegal occupation of the land of the plaintiff and taking into account the law laid down in the aforesaid judgment the said rate of 10% increase every year would be just and expedient in the facts and circumstances of the present case, therefore plaintiffs would be entitled to mesne profits/damages from the date of filing of suit @ 10% compounded increase every year on the amount of Rs. 10000/ per month till the possession is actually handed over to the plaintiffs of 1 bighas 5 biswas of land. In addition to the mesne profits with an increase of 10% compounded annually as directed above plaintiffs are also entitled to interest on arrears of mesne profits @ 6% per annum simple interest from the date of filing of the suit till recovery of possession, which rate of interest will be sufficient to meet the interest of justice in the present case.
87.Plaintiffs are also entitled to a decree of recovery of Rs. 3,80,000/ from the date of filing of the suit till its realization Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
91alongwith simple interest @ 6% per annum. Plaintiffs are also entitled to the recovery of possession of the land measuring 1 bigha 5 biswas forming part of Khasra No. 1283/67/2, Village Kilokari as shown in Brown colour in the site plan filed by the defendants ExDW4/1. RELIEF(in suit No. 435/06/83)
88.In view of my findings on above issue issues No. 1, 3 & 5 in suit No. 435/06/83 since the acquisition proceedings initiated by the UOI/LAC have been declared void initio, therefore plaintiffs have a legal right to enjoy the suit land measuring 5 bighas 5 biswas bearing khasra No. 1283/67/2 Village Kilokari Delhi. Consequently, defendant No. 1 i.e UOI is restrained by issuance of perpetual injunction in favour of the plaintiffs and against the defendant No. 1 from interfering with the possession of the plaintiffs over the suit land measuring 5 bighas 5 biswas with respect to khasra No. 1283/67/2, Village Kilokari, Delhi, shown in the site plan in Red colour filed by local commissioner, though ExPW1/24 as per testimony of PW1 (but exhibit mark not put on the same during evidence). The same has been consequently now exhibited as ExPZ.
89.Defendant No. 1 is further restrained from taking over the possession of the above suit land in pursuance to award no. 49 of 8182 issued in pursuant to Section 6 Land Acquisition Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
92Act notification dated 15.12.66. RELIEF(in suit No. 434/06/94)
89.A decree of recovery of possession of land measuring 1 bigha 5 biswas forming part of khasra No. 1283/67/2, Village Kilokari as shown in brown colour in the site plan ExDW4/1 is hereby also passed in favour of the plaintiffs and against the defendants.
90.Further a decree of recovery of Rs. 3,80,000/ towards mesne profits/damages is hereby passed in favour of the plaintiffs and against the defendants alongwith simple interest @ 6% per annum from the date of filing of the suit till its realization.
91. Further a decree of recovery of future damages for use and occupation/mesne profits from the date of filing of the suit till recovery of possession of said 1 bigha 5 biswas of land @ 10000/ per month is hereby passed in favour of the plaintiffs and against the defendants and the plaintiffs are further entitled to mesne profits @ 10% compounded increase every year on the amount of Rs. 10000/ per month from the date of filing of the suit till the recovery of possession of said land.
92.Plaintiffs are also entitled to simple interest on the above arrears of mesne profits so determined @ 6% per annum from the date of filing of the suit till the recovery of Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
93possession.
93. Plaintiffs are further directed to to pay deficit court fee(s) on the mesne profits and interest so determined above from the date of filing of the suit till the date of decee. Decree sheet be drawn only after the payment of deficient court fee
(s) by the plaintiff, as directed above.
94.Plaintiffs are entitled to costs of both the suits. Decree(s) be drawn accordingly.
95. File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 18.04.2013 ADJ(Central03) Delhi/18.04.2013 Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
94Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.
95Suit Nos. 434/06/94 and 435/06/83 Sh. Kalka Prasad Aggarwal & Ors Vs. UOI & Ors.