Naresh Kumar & Ors. vs Govt. Of Nct Of Delhi
2010 Latest Caselaw 1215 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on : 29.01.2010
                        Judgment delivered on: 04.03.2010


+ 1. W.P.(C) 2185/2008

NARESH KUMAR & ORS.                           ..... Petitioners
            Through:            Mr. Sumit Bansal, Advocate


                     -versus-


GOVT. OF NCT OF DELHI                          ..... Respondent
              Through:          Mr. Sanjay Poddar, Advocate


+ 2. W.P.(C) 381/2009

NARESH KUMAR & ORS.                           ..... Petitioners
            Through:            Mr. Sumit Bansal, Advocate


                     -versus-


GOVT. OF NCT OF DELHI                          ..... Respondent
              Through:          Mr. Sanjay Poddar, Advocate

CORAM:-
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE VEENA BIRBAL


1.     Whether the Reporters of local papers may be allowed to
       see the judgment? yes

2.     To be referred to the Reporter or not? yes

3.     Whether the judgment should be reported in Digest? yes


VEENA BIRBAL, J.

1. The present two petitions are filed by the petitioners

seeking directions for quashing of review award no. 16/03-04

dated 14.07.2004 and for release of balance payment to the

petitioners in respect of award no. 16/03-04 dated 01.10.2003

and supplementary award 16-A/04-05 dated 27.10.2004 along

with interest and other consequential benefits and to forthwith

make the reference filed by the petitioners to the civil court.

The case of the petitioners is that petitioner no. 1 and Sh.

Manoj Kumar were the owners of land forming part of khasra

no. 17 min., 18/1 min., 18/2 min., 19 min. and 20/1 min., in all

measuring 12 bighas and 5 biswas. A notification under Section

4 in respect of said land under Land Acquisition Act (hereinafter

referred to as „the said Act‟) was issued on 23.05.2002. The

said notification was followed by a declaration under Section 6

along with Section 17(1) of the said Act on 17.12.2002. On

01.10.2003, respondent made an award bearing no. 16/03-04 in

favour of petitioners. In October, 2003, 80% of the

compensation as ascertained by the respondent i.e. Rs.

1,87,10,194/- was released to the petitioner no. 1 and Sh. Manoj

Kumar out of total amount of Rs. 1,97,08,397/-. Balance amount

of compensation of Rs. 9,98,203/- along with interest was not

paid. Sh. Manoj Kumar expired on 06.09.2005. Petitioners no.

2 and 3 are the legal heirs of Sh. Manoj Kumar. Petitioners

made various efforts to get the balance compensation released

in their favour but the same was not released.

On 11.10.2007, petitioners filed an application under

Right to Information Act to know about supplementary award, if

any, passed in the matter. No information was provided to

petitioners. Ultimately, petitioner had to file an appeal before

the appellate authority under Right to Information Act. Despite

that, same was not provided. Petitioners filed Second Appeal

before Central Information Commission under the aforesaid Act.

On receipt of the said application, respondent furnished

information vide letter dated 18.12.2007 that a supplementary

award was passed in the matter on 27.10.2004 wherein

compensation of trees was assessed in their favour. Thereafter,

petitioner made representation for release of said compensation

but the same was not released.

On 18.03.2008, petitioner filed the present petition i.e.

W.P.(C) No. 2185/2008 for the release of compensation in

respect of supplementary award in their favour. Notice of the

said petition was issued to respondents vide order dated

18.03.2008. In response to same, respondent filed counter

affidavit stating that at the time of making award dated

01.08.2003, certain compensation was awarded in contravention

of Section 24 of the Act as compensation for illegal super

structure on the land of the petitioners was awarded whereas no

compensation ought to have been awarded to them in respect of

said structures. Accordingly, the review of earlier award dated

01.08.2003 was done and fresh Review award on 14.07.2004

was passed. On coming to know of the said stand of the

respondent, petitioner filed the second writ petition i.e. W.P.(C)

no. 381/2009 challenging the said Review Award.

2. Learned counsel for petitioner has contended that action

of the respondent in making review award dated 01.10.2003 is

illegal and in contravention of provisions of Section 12 of the

said Act. It is contended that as soon as the award is

pronounced and filed in the Collector‟s Office, the award

becomes final and conclusive between the Collector and person

interested. It is further contended that under the said Act, the

power of review of the award has not been conferred upon any

authority as such review award is illegal being contrary to

statute. It is contended that review of the award can be done

only under Section 13 A of the Act which permits removal of

arithmetical and clerical errors within a period of six months. It

is contended that beyond that, nothing can be done by the

Collector. It is further contended that what has been done in

the present case is not permissible under the law as change has

been made on merits and the same are not arithmetical or

clerical errors in any manner.

3. The stand of respondent is that in the earlier award no.

16/03-04 dated 01.10.2003, compensation was assessed in

respect of land and super structure of petitioners at Rs.

1,97,08,397/- out of which petitioners have already received Rs.

1,87,13,782/-. The said award included compensation for illegal

structure which was in contravention of Section 24 Clause 8 of

the Act as such on the directions of appropriate authority,

compensation of Rs. 45,67,005/- was reduced in respect of

illegal structures vide Review Award dated 14.07.2004. The

further case of the respondent is that supplementary award no.

16-A/04-05 of 16/03-04 was made on 27.10.2004 in respect of

trees on the land acquired and the compensation of which was

assessed at Rs. 45,36,781.64 p. It is contended that as the

petitioners have already received payment in excess as per

award dated 01.10.2003, they are not entitled for any further

payment in the supplementary award.

4. We have considered the submissions made and perused

the record.

5. It is admitted position that initially award was

made/announced on 01.10.2003 by the respondent in respect of

land and super structure existing on it. Proceedings for

determination of compensation was done under Section 11 of

the Act by respondent. Before proceeding to determine the

compensation, notices under Section 9 and 10 of the Act were

issued to interested parties. Notice under Section 50 of the Act

has also been issued to Requisitioning Department to appear

and to adduce the evidence for determining the compensation

but none appeared before LAC on behalf of Requisitioning

Department nor adduced any evidence. The interested parties

filed their claims including the present petitioners. The land is

an agricultural land on which there exist farm houses. The

dispute is about the compensation awarded for the structures on

the land.

The case of the respondent is that review of the award

was done as certain compensation in respect of illegal structure

on the land was awarded in contravention of Section 24 Clause

8 of the Act and the Secretary, Land and Building had

requested the Office of the respondent to re-examine the

evaluation of super structure of the farm house keeping in view

the Building Bye Laws relating to the maximum floor area of

dwelling unit in respect of farm house. There was also

approval of the Lt.Governor in this regard. It is also the stand

of respondent that notice was issued to all the interested

parties but they did not appear.

The review award dated 14.07.2004 shows that petitioner had constructed ground floor, first floor and second floor in contravention of Building Bye laws. Besides above, there were illegal structures like swimming pool, servant quarters, garage, statues etc. The value assessed by PWD has been revised keeping in view the permissible limits as per MCD norms. The compensation in respect of illegal structures was deducted and the final compensation of super structure was assessed as Rs.49,39,195/-.

Section 24 Clause 8 of the Act is very clear. The same is reproduced as under:-

24. Matters to be neglected in determining compensation.-But the Court shall not take into consideration -

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx eighthly, any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy."

Under the said provision, compensation for illegal

structure is to be neglected. The factum of there being illegal

structure is not in dispute. Petitioner has annexed the copy of

Review Award with the writ petition. In the said review

award, reasons for deduction are given. Petitioner has not

stated anything in this regard in the petition nor has filed

rejoinder denying the said averments. Further nothing is

placed on record to show that structure existing at the time of

acquisition were in accordance with Sanction Plan of MCD or

that construction was done as per Building Bye Laws.

Petitioners cannot be allowed to take advantage of their own

illegal acts. Technicalities cannot be allowed to defeat the

express provisions of a Statute. Provisions of Section 24

Clause 8 are very clear. Huge public money is involved. It will

not be in the public interest also to accept the contention of

petitioner.

In State of Orissa Vs Rajakishore Das (1996) 4 SCC 221,

it has been held that :-

"..........The construction was unauthorized. Nonetheless, the High Court directed the payment of compensation. We find that the approach of the High Court is clearly illegal. Having recorded the finding that the respondent had constructed the building without permission of any authority and since the Government is entitled to have the unauthorized construction demolished, unless the owner himself voluntarily demolishes and takes the value of the building structure is salvage material, the High Court ought to have held that the respondent had proceeded unauthorisedly in constructing the building having had the knowledge of the acquisition. Therefore, the authorities are not bound by such construction. Consequently, the State is not bound to pay compensation of the value of such a building constructed unauthorisedly. The judgment and order passed by the High Court directing payment of compensation of Rs.90,000 is clearly illegal."

It may also be mentioned that initial award was made on

01.10.2003 and Review Award was made on 14.07.2004

whereas present petition is filed in January, 2009 i.e. after a

lapse of about four and a half years. As per the case of the

petitioner, he has come to know about the Review Award only

on 15.12.2008 when the respondent filed counter affidavit in

one of the present two petitions i.e. 2185/2008 stating that

Review Award has been made.

The stand taken by the petitioner to explain the delay is

unbelievable. As per petitioner‟s own case, petitioner had filed

representation for release of balance amount under award

dated 01.10.2003/supplementary award dated 27.10.2004

before the respondent for the first time on 08.01.2007. It is

unimaginable that if a person has to take payment and that too

of a heavy amount, he will not take steps for 2-3 years as has

been done in the present case. The above shows that

petitioner had the knowledge that payment awarded to him

under supplementary award has been adjusted with the review

award dated 14.07.2004 due to which petitioner had not taken

any steps earlier. Further, stand of petitioner is that he has

come to know of Supplementary Award only on 18.12.2007

when information was supplied to him under the Right to

Information Act. Even this has been wrongly stated. The

representation dated 08.01.2007 annexed with the petition

contradicts the said stand. The same shows that petitioner

had already requested respondent in this regard. Thus, the

stand taken by the petitioner to explain the delay is not

believable. Petition is liable to be dismissed on the ground of

delay and laches alone.

Further, learned counsel for the respondent has

submitted that Review Award is made in respect of other land

owners i.e. about 11 in number. Their compensation for illegal

structures is also reduced. None has challenged the same

despite five years having passed.

The question of large public amount is involved. The

exercise of jurisdiction under Article 226 of the Constitution of

India is in the discretion of the court. We do not find it a fit

case to exercise such a discretion in the present case.

We may mention that we have gone through the judgment

relied upon by counsel for petitioner. The same have no

relevancy to the facts of the present case.

The prayer of petitioners about making reference to the

Civil Court for adjudication is not pressed at the time of

arguments. Accordingly, the same is not dealt herewith.

Both the writ petitions have no merits and the same are

dismissed.

VEENA BIRBAL, J.

SANJAY KISHAN KAUL, J.

th March 4 , 2010 kks/ssb