Municipal Corporation Of Delhi vs Shiv Lal & Others
2011 Latest Caselaw 2792 Del

*      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

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

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

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

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