* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 24.05.2011
+ R.S.A.No. 2/2010 & CM No. 220/2010
MUNICIPAL CORPORATION OF DELHI ...........Appellant
Through: Ms. Mini Pushkarna, Advocate.
Versus
SHIV LAL & OTHERS ..........Respondents
Through: None
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated 11.09.2009 which has reversed the finding of the trial Judge dated 23.04.2009. Vide judgment and decree dated 23.04.2009, the suit filed by the plaintiff Shiv Lal seeking recovery in the sum of `2,65,470/- against the defendant/Municipal Corporation of Delhi (MCD) had been dismissed. The impugned judgment had reversed this finding; suit had been decreed.
2. The plaintiff claimed himself to be the owner of land RSA No.2/2010 Page 1 of 5 measuring 3 bigha 2 biswa Khasra No.855/1784, Village Naraina, New Delhi. The defendants are in unauthorized occupation in the suit land from numerous years and they have constructed an office there. The defendant has failed to vacate the land despite repeated requests. Earlier suit filed by the plaintiff seeking damages had been decreed upto the period from 03.06.1984. Present suit for recovery of damages for three years prior to filing of the present suit had accordingly been filed.
3. In the written statement the defence was that the suit land was acquired by the Land Acquisition Collector vide Award No.1953 dated 28.09.1967 and the land having since been acquired, the plaintiff had no right left in the suit land.
4. On the pleadings of the parties, the following five issues were framed:-
1. Whether the suit of the plaintiff is barred by resjudicata? OPD
2. Whether the suit is not maintainable as the land in dispute has already been acquired?
3. To what amount if any the plaintiff is entitled to receive?
4. Whether the plaintiff is entitled for interest, if so to what extent?
5. Relief.
5. It was not in dispute that the suit land stands acquired vide Award dated 28.09.1967. The trial Judge had adverted to the cross-examination of PW-5 wherein he had admitted that the Government had not paid him full compensation; trial Judge was RSA No.2/2010 Page 2 of 5 of the view that this was an admission on the part of the plaintiff wherein he had admitted having received compensation in lieu of the acquisition meaning thereby that the land stood acquired and the plaintiff already having been received compensation, present suit was not maintainable. Suit had stood dismissed.
6. In appeal, this finding was reversed. The impugned judgment had noted the provisions of Section 16 of the Land Acquisition Act, 1894 (hereinafter referred to as the „LAC‟). The impugned judgment was of the view that since the possession of the land had not passed over to the defendant, the ownership of the land continued to be retained by the plaintiff. Occupation charges for the years 1988-1991 had been granted; decree in the aforenoted amount was passed.
7. This is a second appeal. Although the formal order of admission has not been passed but on 09.08.2010, the following substantial question of law was formulated:- "Whether the respondent/plaintiff continued to be the owner of the disputed land measuring 3 bighas and 2 biswas falling in Khasra No.855/1784 situated in the Revenue Estate of village Naraina, New Delhi in spite of the award dated 28.1.1967 having been passed under Land Acquisition Act and if so its effect?""
8. On behalf of the appellant, it has been urged that the impugned judgment suffers from a perversity; the land stood RSA No.2/2010 Page 3 of 5 acquired and the plaintiff having been admitted that he had received compensation, question of occupation charges having been granted to the plaintiff did not arise. The impugned judgment has returned an illegal finding.
9. None has appeared for the respondents although they have been served.
10. Record shows that the land had admittedly been acquired on 28.09.1967. Averments in the plaint have also been perused. The case of the plaintiff himself is that the defendant/MCD is in illegal and unlawful occupation of the suit land; it is not the case of the plaintiff that he is in possession of the land. Question of applicability of Section 16 of the LAC did not arise as even as per the case of the plaintiff the suit land after acquisition had been illegally possessed by the defendant. PW-5 in his cross- examination had also admitted that he had taken part compensation; his contention was that he had not been paid the full compensation meaning thereby that he had received compensation in lieu of this acquisition. This being admitted factual position, the question of occupation charges to be paid by the defendant did not arise. It has also come on record that after the Award of 28.09.1967, the Award has not been challenged. No objection had been filed to the Award; acquisition proceedings are RSA No.2/2010 Page 4 of 5 not under challenge; they have not been compensated for this acquisition and the possession of the land admittedly been with the defendant, question of the plaintiff having been granted charges for illegal occupation by the defendant did not arise. The land had vested with the Government. The plaintiff had no right title left in it. The finding returned in the impugned judgment is a perversity.
11. In these circumstances, the plaintiff was not entitled to any relief. Appeal is allowed. Substantial question of law is answered in favour of the appellant. Suit stands dismissed.
INDERMEET KAUR, J.
MAY 24, 2011 a RSA No.2/2010 Page 5 of 5