Vinod Kumar Gujral vs Union Of India & Ors.
2010 Latest Caselaw 1353 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on: March 8th , 2010
                                         Decision on: March 11th , 2010


                                  W.P.(C) No. 8053 of 2003

        VINOD KUMAR GUJRAL                       ..... Petitioner
                    Through: Mr. P.P. Ahuja, Advocate.

                         versus

        UNION OF INDIA & ORS.                   ..... Respondents
                      Through: Mr.R.V.Sinha with Mr. R.N. Singh,
                      Advocates for R-1 to R-3.
                      Mr. Himanshu Upadhyay with Mr. Nitin Kumar,
                      Advocates for MCD.

                                         WITH


                                  W.P.(C) No. 13219 of 2004

        NARENDER KUMAR ABBOTT                    ..... Petitioner
                    Through: Mr. Rajat Aneja, Advocate.

                         versus


        UNION OF INDIA & ORS.                    ..... Respondents
                      Through: Mr. Sachin Datta, Advocate for UOI.
                      Mr. Nikhil Goel, Advocate for DDA.
                      Ms. Paromita Mukherjee, Advocate for Mr.
                      Shyel Trehan, Advocate for MCD.

                                         AND


                                  W.P.(C) No. 13860 of 2009

        RAJENDER PAL SINGH & ORS.                 ..... Petitioners
                     Through: Mr. Sunil Lalwani, Advocate.

                         versus


        UNION OF INDIA & ORS.                  ..... Respondents
                      Through: Mr. Atul Nanda with Ms. Sugandha,
                      Advocates for UOI.
                      Mr. Mukesh Gupta, Advocate for MCD.
W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009                  page 1 of 15
                 CORAM: JUSTICE S. MURALIDHAR

        1. Whether reporters of local paper may be allowed
           to see the judgment?                                   No

        2. To be referred to the reporter or not?                 Yes

        3. Whether the judgment should be referred in the digest? Yes


                                         JUDGMENT

CM No. 15722 of 2009 (for delay) in W.P.(C) No. 13860 of 2009

For the reasons stated in the application, the delay in filing the petition is

condoned.

The application is disposed of.

W.P.(C) Nos. 8053 of 2003 & CM No. 11425 of 2004 W.P.(C) No. 13219 of 2004 & CM No. 6531 of 2005 (for impleadment) W.P.(C) No. 13860 of 2009

1. The facts of these three petitions are similar and are accordingly being

disposed of by this common judgment.

2. The Petitioner in Writ Petition (Civil) No.8053 of 2003, Mr. Vinod

Kumar Gujral is aggrieved by an order dated 18th June 2001 issued by the

Land & Development Office („L&DO‟), Ministry of Urban Development

and Poverty Alleviation, Government of Delhi raising a demand in the sum

of Rs.41,48,108/- towards the past arrears of damages and ground rent

together with interest in relation to the unauthorised occupation of the

property at Poorvi Marg (now known as Sir Ganga Ram Hospital Marg).

The said damages became payable consequent upon the allotment, in the

name of the father of the Petitioner, Plot No.6 Site No.7, New Rajendra

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 2 of 15 Nagar on 12th December 1983.

3. The Petitioner in Writ Petition (Civil) No. 13219 of 2004, Shri

Narender Kumar Abbott, has challenged a demand dated 23rd August 2001

raised by the L&DO in the sum of Rs.37,04,565/- payable on the ground of

arrears of damages and ground rent together with interest in respect of the

unauthorised occupation of government land at Poorvi Marg which became

payable consequent upon the allotment on 12th December 1983 of an

alternative plot at Site No.3 New Rajendra Nagar.

4. Writ Petition (Civil) No. 13860 of 2009 is by Shri Rajender Pal Singh

seeking a direction to the L&DO to refund the amount of Rs.81,07,669/-

stated to have been paid by the Petitioner under protest towards the arrears

of damages and ground rent together with interest raised by the L&DO in

respect of unauthorised occupation of a plot in Poorvi Marg. The said

amount became payable consequent upon the allotment to the Petitioner‟s

father late Shri Jaswant Singh on 12th December 1983 a 200 sq. yard plot at

New Rajendra Nagar. The admitted case is that Shri Rajender Pal Singh

has further sold the property to a third party pursuant to a sale permission

granted by the L&DO on 30th June 2008.

5. What is common to the three petitions is that the L&DO has raised the

demand for unauthorised occupation of lands on Poorvi Marg pursuant to

the allotments made either to the Petitioners or their predecessors-in-

interest of a 200 sq. yards plot in New Rajendra Nagar way back in

December 1983 pursuant to the Gadgil Assurance. W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 3 of 15

6. Recently, this Court has by a judgment dated 8th March 2010, dismissed

Writ Petition (Civil) No. 5645 of 2001 (K.C.Jain v. Union of India) where

a similar challenge to the demand raised by the L&DO for unauthorised

occupation of land on Poorvi Marg was negatived. The facts in these cases

are more or less similar. Persons who had to migrate to India during

partition had come to occupy lands in different areas in Delhi and

subsequently also raised construction thereon.

7. On the floor of the Parliament the then Minister of Works Production

Shri M.V.Gadgil gave certain assurances during the debate on the Delhi

Premises (Requisition and Eviction) Amendment Bill, 1950 in line with the

recommendations contained with the report of the Select Committee on

Government Assurance. The said assurances (known as „Gadgil

Assurance‟) were to the effect that the value of the land on which a refugee

was squatting was to be computed on a no profit and no loss basis and the

displaced person was to be given an option of purchasing the site occupied

by him against payment in easy instalments of the value of the land

assessed and on condition of paying the ground rent. Where the displaced

person was unable to purchase the site he was not to be evicted unless

alternative accommodation was provided on the developed plan and a

rehabilitation grant was made.

8. It appears that there were 11 persons, including the Petitioners who had

been occupying land on Poorvi Marg which is part of the ridge area. In a

public interest litigation being Writ Petition No. 4677 of 1985 titled M.C.

Mehta v. Union of India in the Supreme Court, three applications being W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 4 of 15 IA Nos. 18, 22 and 32 were filed for removal of encroachments on the

ridge area.

9. It appears that on 3rd April 1996 the Supreme Court passed the following

order in the IAs:

"There are large number of persons who are unauthorisedly in occupation of the Ridge area since earlier to 1950. They are occupying till date on the basis of some sort of "Gadgil Assurances". It is admitted by the learned counsel appearing for private persons and Lt. Col. Sharma that there are no allotment and licences in their favour by any authority of Government. Be that as it may, since they are occupying the area for last nearly five decades, the Government of India is under an obligation to provide them an alternative accommodation. Mr. Venu Gopal, learned counsel appearing for L&DO states that he would examine the case of each of these persons and indicate their status viz-a-viz, their right of accommodation. He may do so and file an affidavit within two weeks."

10. Following the above order, the L&DO held a draw of lots on 26 th June

1996 and each of these Petitioners (or their predecessors-in-interest) were

allotted identifiable plots in New Rajendra Nagar. They were asked to take

physical possession of the land so allotted on 8th August 1996.

11. The 11 persons, including the Petitioners herein filed an application

which was disposed of in the Supreme Court on 4 th September 1996 by the

following order:

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 5 of 15 "We have heard learned counsel for the parties regarding shifting of 11 occupants who are residing in ridge area on the basis of "Gadgil Assurance". DDA has already handed over the possession of the plots to L&DO. The 11 plots are further being allotted to 11 persons. The objection was raised by the residents of the area that these 11 plots have been carved out from the green area and not from the residential area. Mr. KK Bandyopadhyay, Additional Commissioner (Plg.), DDA has filed affidavit whereunder it is stated that as per the MPD-2001 the area under plot/site No.7 falls under residential zone. The 11 plots have been carved out from the said plot/site No.7 which falls under the residential zone. It is further stated in the affidavit that as per draft of zonal plan of zone B approved by DDA as per resolution no. 174/92 dated December 17, 1995 for inviting objections under section 11 of the DD Act 1957 the land use is shown as residential, it is further stated that after processing objection/suggestion, the area has been retrained as residential.

In view of the categoric affidavit of the DDA, we reject the contention of the residents of the area. We directed the L&DO to hand over the possession of the 11 plots to the 11 allottees within two weeks. These allottees who refuse to take the plots, shall be immediately dispossessed from the ridge area. The allottees after taking possession of the land shall move the MCD within one month for sanction of the plan. The MCD within six weeks thereafter shall sanction the plans. We give time to the 11 allottees to move from the ridge area before May 31, 1976. These occupants shall not be permitted to live in the ridge area beyond May 31, 1997 irrespective of the fact whether they are in a position to W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 6 of 15 build their houses or the allotted plots or not. We further direct that none of the tress which are in existence on these 11 plots shall be cut or removed without the sanction of the authority under law while constructing the residential houses by the 11 persons. We further direct the Ridge Management Board to take over the possession of the Ridge area from the eleven persons on June 1, 1997 and thereafter do the necessary plantation and fencing.

I.A. in respect of 11 persons is disposed off."

12. Demands were thereafter raised for unauthorised occupation of the

lands on Poorvi Marg in terms of Condition No. 2(iv) of the allotment

letters dated 12th December 1983. A copy of one such demand letter in the

case of Shri M.L.Gujral dated 17th/18th November 1997 reads as under:

"To Shri M.L. Gujral, Poorvi Marg, B-4, Ganga Ram Hospital, Pusa Road, New Delhi.

Sub: Payment of damage for unauthorised occupation of Govt. land at Pusa Road, Poorvi Marg, New Delhi. Sir, I am directed to invite your attention to this office letter No. L-III/8/12(38)/83 dt. 6.5.96 on the above subject and to any that you have been given physical possession of plot measuring 200 sq. yds. at New Rajinder Nagar. According to condition No. 2(IV) of the allotment vide letter No.I-III/8/12(38)/ dt. 12.12.83. You are liable to pay the damages for the unauthorised use and occupation of Govt. land at Pusa Road, Poorvi Marg, New Delhli.

You are, therefore, required to pay damages as per details W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 7 of 15 below:-

                1. From 1.1.52 to 31.3.81                  Rs. 57,915.00
                @ Rs. 165.00 P.M.
                2. From 1.4.81 to 31.3.92                  Rs. 43, 560.00
                @ Rs. 330/- P.M.
                3. From 1.4.92 to 31.5.97                  Rs. 2,04,600.00
                @ Rs.3,300/- P.M.

Furnishing an undertaking on non-judicial stamp paper of Rs.2/- that you will pay difference of damages charges if the land rates are revised w.e.f. 1.4.96.

The payment should be made through a Bank Draft Drawn in favour of Land & Development Officer, New Delhi and should reach this office within 30 days from the date of issue of this letter. In case of your failure to pay damages as demanded within the prescribed period of 30 days. You will be liable to pay compound interest @ 18% from the date of this demand for the period of delay on your part.

Yours faithfully, (D.K. Bazzaz) Dy. Land & Development Officer."

13. Similar demands were raised in the other cases as well.

14. In the meanwhile the Supreme Court was again approached by the

Petitioners for grant of further time to continue in the ridge area on the

ground that the Municipal Corporation of Delhi („MCD‟) had not

discharged its obligation in the matter of sanction of plan. While

dismissing the said applications on 23rd September 1999, the Supreme

Court passed the following order:

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 8 of 15 "These applications have been filed to grant further time to the applicants to continue in the Ridge area on the ground that the Municipal Corporation of Delhi („MCD‟) has not discharged is obligations in the matter of sanction of plan as it has put forth unreasonable conditions in sanctioning plan and giving alternative lands. The MCD is not before us. The Counsel earlier appearing for the MCD is also not available.

Issue notice to Mr. V.K.Duggal, Commissioner, Municipal Corporation of Delhi to appear in person before this Court on 29th September, 1999 to show cause why appropriate action be not taken against him for conniving with the Ridge occupants in one way or the other thereby preventing the implementation of the orders of this Court.

Notwithstanding the aforesaid order, we do not see any justification for granting any further extension of time to those 11 Ridge occupants. The learned counsel, however, prays that some time may be given within which the occupants will vacate the premises occupied by them. We grant a month‟s time from today to vacate the premises in question. We are constrained to observe that even though the order of this Court was passed as early as in the year 1996 and more than three years have elapsed, yet the occupants have not vacated the premises in question. The Ridge Management Board is directed to furnish a report in this regard within one month from today. These applications stand dismissed accordingly. Report be placed before the Court after one month."

15. The demand as raised by the L&DO was still not paid thereafter. This

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 9 of 15 led to issuance of further demand letters which have been challenged in

these proceedings.

16. Three principal contentions have been raised by the learned counsel for

the Petitioners in these cases. The first is that in terms of the Gadgil

Assurance each of them has a vested right for allotment of an alternative

plot. It is further submitted that unless proceedings are initiated under

Section 9 of the Public Premises (Eviction of Unauthorised Occupants)

Act, 1971 („PP Act‟) for assessment of damages the impugned demands

could not have been raised. It is stated that Public Relation Officer

(„PRO‟) of the L&DO was not authorised to raise such demands. Thirdly,

the manner of calculation of the amounts demanded is questioned

particularly since damages have been claimed even after the surrender of

the land which was unauthorisedly occupied. Lastly, it is contended that

the interest charged at 18% per annum is excessive and ought not to be

permitted. Reliance is placed on the decisions in Lt. Col. B.B. Asthana

(Retd.) vs. Union of India and Ors. 65 (1997) DLT 86; Jai Singh Jakhar

vs. Director (Estate), NDMC 2006 (132) DLT 184; Rachna Dogra vs.

Directorate of Estates, Ministry of Urban Affairs and Employment 2004

(109) DLT 286; New Delhi Municipal Committee vs. Kaluram (1976) 12

DLT 325; Rachna Dora vs. Directorate of Estate etc. 2004 Rajdhani Law

Reporter 162; Shiv Sagar Tiwari vs. Union of India &Ors. AIR 1997 SC

2725 and M.S. Oberoi vs. Union of India AIR 1970 P&H 407.

17. In reply it is contended by learned counsel for the Respondents that

after the orders passed by the Supreme Court in the matter on more than W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 10 of 15 one occasion, there was no question of the Petitioners now challenging the

demands raised. They had surrendered plots, unauthorisedly occupied by

them, pursuant to the orders of the Supreme Court and no objection was

raised by any of the Petitioners with reference to the PP Act at that stage.

As regards the damages claimed, it is pointed out that for the period up to

31st May 1997 damages have been charged at concessional rates although

in terms of the allotment letter dated 12th December 1983 concessional

rates were applicable only for a period of 2 years and thereafter damages

ought to have been levied on the basis of market value. The damages with

effect from 1st June 1997 are based on the schedule of market rates fixed

by the MoUD. Penalties have been levied at the rate of 10% per annum on

the applicable land rate in the area.

18. In an affidavit dated 6th March 2010, filed in Writ Petition (Civil) No.

13219 of 2004 by the Respondents it is stated that the land rate of property

in Rajendra Nagar area was Rs.10,500/- sq. m. in the year 1997. It was

revised to Rs.11,550/- with effect from 1st April 1998. The present rate is,

of course, much higher. On the basis of the above rates, penalty for

unauthorised occupation was calculated as follows:

"1st period from 1/6/1997 to 31/3/1998 (304 days) Land rate = Rs10,500/-

10,500 x 10% = Rs. 1050/-

Plot area =1276 sq. mtrs.

Penalty for u/a occupation for the period 304 days =1276 x 1050 = Rs.13,39,800/- p.a. =13,39,800 x 304/365 = Rs. 11,15,889.00

(ii) IInd period from 1/4/1998 to 29/10/1999 (one year + W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 11 of 15 212 days) Land rates = Rs.11,550/-

11,550 x 10% = Rs.1155/-

Plot area = 1276 sq. mtrs.

Penalty for u/a occupation for the period of one year and 212 days = 1276 x 1155 = Rs.14,73,780 p.a. = 14,737,80 + 14,737,80 x 212/365 = Rs.23,29,784.00"

19. It is stated that the above value is a fraction of the value in terms of the

recent auctions conducted by the Delhi Development Authority („DDA‟)

whereas the reserve price itself was in excess of Rs.1 lakh per sq.m.

20. As regards the simple interest levied at the rate of 18% per annum in

terms of office order No. 9/19 issued by the MoUD which reads as

follows:

                "No. 23(108)/91-CDW                            Date 16th Sep.91
                                   OFFICE ORDER No. 9/91


                Subject:-       Interest     on     damages   for   unauthorised
                occupation of Govt. land.

The Enforcement Section while demanding the damages has also been demanding the compound interest thereon. The matter, therefore came up for discussion in one of the Coordination meetings held in Land & Development Officer‟s room where it was decided to adopt the procedure as is being adopted by Delhi Development Authority.

The Delhi Development Authority was therefore

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 12 of 15 requested to intimate the procedure being adopted by them who have informed that they are charging interest on damages on simple rate of 18% per annum after squatters fails to pay the damages within the stipulated period.

It has, therefore, been decided that in future the Enforcement Section will not demand the compound interest or where ever it has not been paid or contested, the demand letters should be amended accordingly. The interest will become payable only the squatter fails to pay the damages within the prescribed period i.e. 45 days from the date of receipt of the notice for which it will be made clear in the demand letter."

21. It is accordingly submitted that the impugned demands do not call for

any interference.

22. As regards the first objection that damages ought to have been assessed

by initiating proceedings under Section 9 of the PP Act, this Court finds

that no such objection was raised by any of these Petitioners when they

approached the Supreme Court on more than one occasion. It is plain to

this Court that this plea of the non initiation of proceedings under the PP

Act is an afterthought. Such a plea cannot be countenanced particularly

since each of these Petitioners has taken advantage of the scheme in terms

of the Gadgil Assurance. Each of them has been allotted a 200 sq. yard

plot in Rajendra Nagar which by today‟s standards is worth several crores

of rupees. For several years now they have not even paid damages for the

unauthorised occupation of the plots by them in Poorvi Marg. Even in the

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 13 of 15 case of Shri Rajender Pal Singh, he ultimately paid the damages under

protest on 21st January 2008 clearly with a view to selling it soon thereafter

on 2nd July 2008 to a third party.

23. Even after the order dated 4th September 1996 of the Supreme Court,

these Petitioners despite getting an allotment of an alternative land way

back in December 1983 continued occupying the unauthorised plots in

Poorvi Marg. At least in two petitions no damages for unauthorised

occupation have been paid. This Court, therefore, cannot countenance a

plea by any of them about the non-initiation of proceedings for assessment

of damages under Section 9 of the PP Act. The said contention is hereby

rejected.

24. On the question of the period for which the damages are payable, this

Court finds that calculations made by the Respondents does not call for

interference. As pointed out by the Respondents, they need not have

granted any concessional rate after the expiry of two years after 12 th

December 1983 when the alternative plots were first allotted to the

Petitioners. This Court is unable to be persuaded to direct the Respondents

to grant any further concession to the Petitioners for the purposes of the

calculation of damages for unauthorised occupation. In the facts and

circumstances of the case, it is held that there is no illegality committed by

the Respondents in raising the impugned demands.

25. Even as regards the demand for interest at the rate of 18% simple

interest per annum, the Circular produced by the Respondents justifies the W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 14 of 15 raising of demand at that rate. Given the value of the property in the hands

of each of these Petitioners, the demand raised is indeed a fraction thereof.

No case has been made out by any of these Petitioners for any interference

by this Court.

26. Each of these petitions are accordingly dismissed with costs of

Rs.10,000/- which will be paid by the Petitioners to the Respondents

within a period of four weeks.

27. The pending applications are also disposed of.

S. MURALIDHAR, J MARCH 11, 2010 dn

W.P.(C) Nos. 8053 of 2003, 13219 of 2004 & 13860 of 2009 page 15 of 15