Union Of India & Ors vs Hem Singh (Deceased) Through Lrs
2015 Latest Caselaw 3805 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 13th May, 2015.

+             LPA No.282/2010 & CM No.7396/2010 (for stay)

       UNION OF INDIA & ORS                                 ..... Appellants
                     Through:          Ms. Pooja Yadav, Adv. for Ms.
                                       Rachna Srivastava, Adv.

                                 Versus

    HEM SINGH (DECEASED) THROUGH LRS           ..... Respondent
                  Through: Ms. Roopali Chaturvedi, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 14th July, 2009 of the

learned Single Judge of this Court of disposal of W.P.(C) No.1684/1994

filed by the deceased respondent No.1 now represented by his heirs

impleaded at serial No.1(a) to 1(j).

2. The respondent No.1 filed the writ petition from which this appeal

arises impugning,

(I) the order dated 30th September, 1985 of the Settlement

Commissioner (Appellant No.3), Rehabilitation Division, Ministry of

Home Affairs of dismissal of appeal preferred by the respondent No.1

under Section 22 of the Displaced Persons (Compensation and

Rehabilitation) Act, 1954 (Displaced Persons Act) against the order

dated 26th March, 1985 of the Settlement Officer-cum-Managing

Officer (Appellant No.4) offering to transfer the land measuring 266

sq. yds. situated at Qutab Road, Delhi to the respondent No.1 under

Rule 87 of the Displaced Persons (Compensation and Rehabilitation)

Rules, 1955 (Displaced Persons Rules) for a price of Rs.26,01,846/-

and on other terms and conditions contained therein;

(II) the order dated 4th January, 1988 of the Chief Settlement

Commissioner (Appellant No.2) of dismissal of revision petition

under Section 24 of the Displaced Persons Act preferred by the

respondent No.1 against the order aforesaid of the Settlement

Commissioner; and,

(III) the order dated 22nd July, 1993 of the Secretary, Land &

Building Department, National Capital Territory of Delhi (Appellant

No.1) of dismissal of a petition filed by the respondent No.1 under

Section 33 of the Displaced Persons Act with respect to the orders

aforesaid of the Chief Settlement Commissioner, Settlement

Commissioner and the Settlement Officer.

Thus, the challenge inter alia in the writ petition was to the

price demanded from the respondent No.1 of Rs.26,01,846/- for the

land at Qutab Road in possession of the respondent No.1 / writ

petitioner; according to the respondent No.1 / writ petitioner, the price

should have been much less.

3. The writ petition, from which this appeal arises, was entertained and

remained pending from the date of its filing in or about the year 1994 till the

year 2009. When the said writ petition came up for hearing before the

learned Single Judge on 14th July, 2009, the counsel for the respondent No.1

/ writ petitioner, after some hearing, instead of pressing the writ petition

contended that the respondent No.1 / writ petitioner was ready to pay the

price demanded of Rs.26,01,846/- together with interest @ 10% per annum

with effect from 1st April, 1985 and till the date of payment.

4. The learned Single Judge, upon the said offer being made, instead of

adjudicating the writ petition on merits, finding the suggestion / concession

made by the respondent No.1 / writ petitioner to be just, fair and equitable,

disposed of the writ petition by, (i) directing the respondent No.1 / writ

petitioner to pay the said sum of Rs.26,01,846/- together with simple

interest @ 10% per annum with effect from 1st April, 1985, in three equal

installments stretching till 1st March, 2010 and to in accordance with the

terms and conditions contained in the offer letter dated 26th March,1985,

surrender 59 sq. yds. of land besides the said 266 sq. yds., illegally

encroached upon by the respondent No.1 / writ petitioner and by (ii)

directing the appellants to execute the transfer documents of the land in

favour of the respondent No.1 / writ petitioner.

5. Aggrieved therefrom, this appeal was preferred. Notice of the appeal

was issued. The respondent No.1, in terms of the order of the learned Single

Judge, issued certain cheques in favour of the appellants. The counsel for

the appellants on the very first date when the appeal came up before this

Bench i.e. on 23rd April, 2010 informed that the cheques had not been

encashed. Vide subsequent order dated 27th July, 2010, the cheques

tendered by the respondent No.1 to the appellants were ordered to be

returned to and the respondent No.1 directed to deposit the amount

equivalent to the amount of the cheques in this Court and the said amount

was ordered to be kept in a fixed deposit. The appeal, on 21 st October, 2010

was admitted for hearing and ordered to be listed in the category of regular

matters. Hearing of the appeal, on the application of the respondent No.1,

was expedited vide order dated 6th February, 2015. We heard the counsel

for the appellants and the counsel for the respondent No.1 on 30 th April,

2015 and reserved judgment, giving liberty to the counsels to filed written

submissions. Both have filed written submissions, which have been perused

by us.

6. The principal grievance of the appellants, of course, is that the learned

Single Judge erred in directing the appellants in the year 2009-2010 to sell

the immovable property to the respondent No.1 / writ petitioner at a price at

which the respondent No.1 / writ petitioner had 25 years prior thereto,

offered to sell the said property and though together with interest @ 10%

per annum but without regard to the fact that the market price of the

property in the year 2009-2010 and which alone was the criteria under the

rule under which the property was offered to be sold to the respondent No.1

/ writ petitioner, was far far more than the price prevalent, 25 years earlier in

the year 1985 together with simple interest thereon @ 10% per annum.

7. The counsel for the respondent No.1 / writ petitioner neither during

the hearing nor in the written arguments has been able to make a dent to

counter the aforesaid contention.

8. We find force in the aforesaid contention of the appellants. There has

been a galloping increase in prices of immovable property in Delhi,

particularly in areas which are in the heart of Delhi, as the subject property

is and judicial notice of which fact has been taken by the Courts. The

Supreme Court in Saradamani Kandappan Vs. S. Rajalakshmi (2011) 12

SCC 18 has held that though the third quarter of the 20th Century saw a very

slow but steady increase in prices of immovable property but a drastic

change occurred from the beginning of the last quarter and a galloping

increase in prices of immovable properties has taken place with prices

increasing steeply, by leaps and bound and judicial notice can be taken

thereof. It can thus by no means be said that the increase in price of the

immovable property in nearly 25 years, which the respondent No.1 / writ

petitioner took to agree to the offer of the appellants and which was subject

to payment being made within 30 days thereof, was @ 10% per annum only.

We may add that the learned Single Judge also, in the impugned order, has

not observed that the payment of 25 years old market price, even if with

simple interest @ 10% per annum would be equivalent to the market price

prevalent on the date of the impugned order.

9. What the learned Single Judge has done in the impugned order is, to

allow the respondent No.1 / writ petitioner to at its own ipsi-dixit first

challenge the price at which the appellants had offered to sell the property

and when unable to sustain the said challenge, to accept the said offer,

ignoring that the offer was subject to payment being made in 30 days and

further ignoring that in the intervening 25 years, there was a sea change in

market price of the property. All this has been allowed in the name of being

just, fair and equitable.

10. We are of the considered opinion that, without the learned Single

Judge first returning a finding that the offer made by the appellants 25 years

ago to sell the property for a price of Rs.26,01,846/- was contrary to the

rules under which it was made or otherwise contrary to the law, the learned

Single Judge could not have given the reason of "just, fair and equitable" for

so directing a valuable immovable property of the State to be transferred to

the respondent No.1 / writ petitioner. The same, in our view, would amount

to the Court distributing largesse to the one knocking at its door, without

finding any weight even in his knock and after that person has given up the

grounds on which he earlier knocked the doors of the Court.

11. We have also wondered, whether not it would amount to giving a

premium to a person who has involved the State / public property in

litigation for nearly two and a half decades, on grounds which he ultimately

could not sustain before the Court and chose to give up. If such a practise

were to be followed, it would encourage unscrupulous litigants to abuse the

process of the Court to their advantage. We have yet further wondered that

if at all the properties of the State which are public properties are to be

distributed in such a manner, whether not the criteria should be it to give it

to the most deserving person rather giving it virtually for free to a person

who has approached the Court and who has ultimately been unable to

establish his case before the Court. Any transaction which puts the public

exchequer to an avoidable loss cannot be stipulated in equity or in law. It

only serves private interest. It does not promote any public purpose.

12. The course of action as adopted by the learned Single Judge has been

deprecated by the Courts. The Supreme Court in Union of India Vs.

Modiluft Ltd. (2003) 6 SCC 65 held that for an order to be an order in

equity, it should be equitable to all parties concerned. Finding that the

respondent therein had collected the tax from the passengers as an agent of

the Union of India and had failed to deposit the same and on the contrary

used the same for its own purposes, it was held that the order of the High

Court granting a liberal instalment to the respondent to pay the said dues

was without taking into consideration the interest of the revenue and could

not be termed as an order in equity. Similarly, in Ritesh Tewari Vs. State of

U.P. (2010) 10 SCC 677 it was held that a petition can be entertained only

after being fully satisfied about the factual statements and not in a casual

and cavalier manner and that equities have to be property worked out

between the parties to ensure that no one is allowed to have their pound of

flesh vis-a-vis the others unjustly.

13. The Supreme Court in P.M. Latha Vs. State of Kerala (2003) 3 SCC

541 has also held that equity and law are twin brothers and law should be

applied and interpreted equitably but equity cannot override written or

settled law. Earlier also, in Madamanchi Ramappa Vs. Muthalur Bojjappa

AIR 1963 SC 1633 it was held that what is administered in Courts is justice

according to law and considerations of fair play and equity, however

important they may be, must yield to clear and express provisions of the law

and unless it is so, it would introduce in the decision of the Courts an

element of disconcerting unpredictability which is usually associated with

gambling and that is a reproach which judicial process must constantly and

scrupulously endeavour to avoid. Reference in this regard can also be made

to Raghunath Rai Bareja Vs. Punjab National Bank (2007) 2 SCC 230.

14. Applying the aforesaid principles of law, the learned Single Judge, in

the name of justice, fairness and equity could not have without the consent

of the appellants and without finding that the appellants even after 25 years

were bound to offer the property in occupation of the respondent No.1 / writ

petitioner at a price at which they had offered 25 years ago together with

interest @ 10% per annum, could not have directed the appellants to so

transfer the immovable property to the respondent No.1 / writ petitioner.

The order of the learned Single Judge is clearly unsustainable.

15. Thus, the appeal is entitled to be allowed on this short ground alone.

16. The next question which however arises is that if this Court in appeal

is to not accept the unilateral offer made by the respondent No.1 / writ

petitioner and accepting which the writ petition was disposed of, whether

not an opportunity has to be given to the respondent No.1 / writ petitioner to

argue the case with which it has filed the writ petition.

17. Ordinarily, it would have been so. However, what we find is that the

respondent No.1 / writ petitioner on 14th July, 2009, when the writ petition

came up for hearing, did not press and gave up the challenge in the writ

petition and rather accepted the order impugning which the writ petition was

filed. For this reason, we are of the opinion that there is no need to

adjudicate on merits the challenge in the writ petition or to, after allowing

the appeal, remand the writ petition to the learned Single Judge for decision

afresh.

18. At the same time, we feel that may be, if the learned Single Judge had

on 14th July, 2009 not accepted the unilateral offer of the respondent No.1 /

writ petitioner, the respondent No.1 / writ petitioner may have pursued the

writ petition further. Giving benefit of doubt and having heard the counsels,

we chose to adjudicate on merits the challenge made in the writ petition.

We clarify that we have chosen not to remand the matter to the learned

Single Judge, finding the lis to be nearly 30 years old, if not more, as would

be evident from the discussion herein below.

19. The case of the respondent No.1 / writ petitioner in the writ petition

was:

(i) that the respondent No.1 / writ petitioner and his wife Smt.

Charanjit Kaur, both holding immovable property in their respective

names in what came to be known as Pakistan, pursuant to partition of

the country, upon migration, filed separate claims under the Displaced

Persons Act;

(ii) that however the claims of the respondent No.1 / writ petitioner

and his wife, though entitled in law to be separately dealt with, were

wrongly clubbed, thereby resulting in payment of compensation to

them less than what they were entitled to;

(iii) that the respondent No.1 / writ petitioner upon coming to Delhi

had occupied the subject property bearing No.XIII/12-16, New Qutab

Road, Delhi which was subsequently declared as evacuee property

and the respondent No.1 / writ petitioner started paying rent thereof to

the Custodian of evacuee properties;

(iv) that the Northern Railways claimed title to the land underneath

the said property and sought release thereof and the authorized

Deputy Custodian vide order dated 12th October, 1955 held that the

land underneath the property was not evacuee and directed the

respondent No.1 / writ petitioner in occupation of the structure built

over the said property to deal directly with the Northern Railways;

(v) that thus, while the land underneath the property was non-

evacuee, in ownership of Northern Railways, the superstructure over

the property was evacuee, vesting in the Custodian;

(vi) that the respondent No.1 / writ petitioner applied for fixation of

standard rent of the property and which was fixed and since the

respondent No.1 / writ petitioner had been paying rent in excess

thereof, he became entitled to refund thereof;

(vii) that the respondent No.1 / writ petitioner being a displaced

person, had a right under the Displaced Persons Act to transfer of the

property in his occupation in his favour;

(viii) that Section 12 of the Displaced Persons Act empowered the

Central Government to acquire any evacuee property for

rehabilitation of displaced persons and the Central Government is

"deemed to have acquired" the land underneath the said property also

for the purposes of settling the respondent No.1 / writ petitioner, a

displaced person, and ought to have transferred the superstructure of

the said property which was already evacuee together with land

deemed to have so acquired, to the respondent No.1 / writ petitioner

at the prices prevalent in the year 1955;

(ix) that vide order dated 26th March, 1985 (supra which was

impugned in the writ petition), the price of Rs.26,01,846/- was

demanded from the respondent No.1 / writ petitioner for transfer of

the land underneath the property and the remedies taken by the

respondent No.1 / writ petitioner thereagainst (and order wherein

were also impugned in the writ petition) did not meet with any

success;

(x) that no opportunity was given to the respondent No.1 / writ

petitioner before fixing the price;

(xi) that the price was to be computed not on the basis of the

prevalent market price of 26th March, 1985 but the prevalent price of

the year 1955 and out of the price of 1955 also, the amount paid by

the respondent No.1 / writ petitioner in excess towards rent ought to

have been adjusted.

20. We have perused the writ record annexed to the appeal. The same

discloses:

(a) that the claims of the respondent No.1 / writ petitioner were

verified and assessed on 24th October, 1951 and the claims of the wife

of the respondent No.1 / writ petitioner were assessed on 18 th April,

1951;

(b) that the said claims were settled; neither the respondent No.1 /

writ petitioner has pleaded the date of settlement of claims nor is the

same decipherable from Annexure P-4 to the writ petition but which

certainly discloses that the claims were settled / adjusted; we can

safely assume that it must be soon thereafter;

(c) that though the respondent No.1 / writ petitioner has pleaded

that by clubbing his claim with that of his wife, he / his wife were

paid much less compensation than what was due but it is not their

case that they took the remedies available in law thereagainst; again,

neither there is any pleading nor has the respondent No.1 / writ

petitioner filed any document to show that any grievance was raised

about the claims having been wrongly assessed or having not been

paid / adjusted / settled;

(d) that be that as it may, the challenge in the writ petition from

which this appeal arises was also not with respect to the assessment of

the claims or non-payment / non-satisfaction thereof; again, it can

safely be assumed that the dispute with respect to the claims or their

non-payment did not survive;

(e) that the Assistant Custodian (Judicial) vide order dated 2 nd

September, 1952 in a enquiry under Section 7(1) of the Displaced

Persons Act held that Mohd. Yasin was the lessee of the Railways

with respect to the subject land and had constructed the superstructure

thereon and that the said Mohd. Yasin was an evacuee and the

superstructure was evacuee property;

(f) that the Deputy Custodian vide order dated 29th May, 1956 held

that the Union of India (Railways) is the rightful owner of the subject

property and accordingly ordered the de-notification of the said

property, subject to the rights of the allottees;

(g) that vide notification dated 16th June, 1956, the said property

was declared as a non-evacuee property and deleted from the list of

evacuee properties; the said order has also attained finality and was

not under challenge in the writ petition from which this appeal arises;

there is also neither any plea nor anything on record that the

respondent No.1 / writ petitioner otherwise challenged the order of

de-notification of the property as evacuee property or protested

against the same;

(h) that the respondent No.1 / writ petitioner filed as Annexure P-

19 to the writ petition, an order dated 9th May, 1960 of the Settlement

Commissioner and from which it appears that some part of the unpaid

/ unadjusted claim of the respondent No.1 / writ petitioner and his

wife was being adjusted towards rent of the subject property; vide the

said order, it was held that since with effect from 17 th September,

1957, the respondent No.1 / writ petitioner had been asked to attorn in

favour of the Northern Railways, the adjustment of unpaid

compensation from rent thereafter was wrong;

(i) that there is neither any plea nor any document to show the

background on which the letter dated 26th March, 1985 supra was

issued to the respondent No.1 / writ petitioner; vide the said letter,

under Rule 87 of the Displaced Persons Rules, the land measuring

266 sq. yds. under the subject property was offered to be transferred

to the respondent No.1 / writ petitioner on payment of the current

price of Rs.26,01,846/- with upto date arrears of rent on the following

terms and conditions:

(i) that the sum of Rs.26,01,846/- with upto date arrears of

rent is deposited within 30 days;

(ii) that the respondent No.1 / writ petitioner surrenders

physical possession of about 59 sq. yds. unauthorisedly

encroached portion;

(j) the Settlement Commissioner vide order dated 30 th September,

1985 supra in appeal preferred by the respondent No.1 / writ

petitioner held, that the case being of transfer of property under Rule

87, any other mater except valuation could not be raised; the need for

considering the challenge to valuation however did not arise since the

offer made to the respondent No.1 / writ petitioner in the letter dated

26th March, 1985 had since been cancelled and thus the appeal was

infructuous;

(k) the Chief Settlement Commissioner in order dated 4 th January,

1988 supra in the revision petition under Section 24 of the Displaced

Persons Act preferred by the respondent No.1 / writ petitioner, held

that the question of valuing the land under Rule 24, as was sought by

the respondent No.1 / writ petitioner, did not arise as the land was

offered to be transferred to the respondent No.1 / writ petitioner,

under Rule 87, on the specific request of the respondent No.1 / writ

petitioner; it was again held that since the respondent No.1 / writ

petitioner had failed to avail the offer made vide letter dated 26 th

March, 1985, there was no merit in the revision petition;

(l) that it is recorded in the order dated 22 nd July, 1993 of the

Secretary, Land & Building that the Ministry of Rehabilitation had

acquired the land underneath the property along with other land from

the Railways with the purpose of setting up a shopping centre but

could not do so because of the subject property being in occupation of

the respondent No.1 / writ petitioner and eventually vide letter dated

26th March, 1985, the property was offered to the respondent No.1 /

writ petitioner;

(m) that the offer made to the respondent No.1 / writ petitioner was,

of sale of property of the Department as part of the compensation

pool and not in adjustment of compensation and not by way of

rehabilitation of a displaced person.

21. Rule 87 of the Displaced Persons Rules in Chapter XIV thereof titled

"Procedure for Sale of Property in the Compensation Pool" is as under:

"87. Mode of sale of property--Any property forming part of the compensation pool may be sold by public auction or by inviting tenders or in such other manner as the Chief Settlement Commissioner may, by general or special order, direct."

A reading of the aforesaid Rule leaves no manner of doubt that the

sale thereunder has to be at market price only inasmuch as the mode of sale

by public auction and tender are adopted to fetch a market price. This is

also evident from Rules 88 to 90 following thereafter.

22. It was / is not the case of the respondent No.1 / writ petitioner that the

price of Rs.26,01,846/- demanded from him was not the market price.

However his case was / is that he was entitled to transfer in his favour at the

price as prevalent in the year 1955 and not as prevalent in 1985.

23. The only question for adjudication therefore is, whether the appellants

in the year 1985 were liable to offer the property to the respondent No.1 /

writ petitioner at the price prevalent in the year 1955.

24. The respondent No.1 / writ petitioner admits that he would have been

entitled to purchase the property at the prices of 1955, if the same was to be

sold to him for satisfaction of the compensation assessed in his favour. Rule

24 of the Displaced Persons Rules which the respondent No.1 / writ

petitioner invoked also so provides. However, to assert so, what the

respondent No.1 / writ petitioner was required to establish was that the

compensation payable to him had remained unsatisfied and was due to him

and that the property had been offered to him in satisfaction of

compensation. However that case the respondent No.1 / writ petitioner has

neither pleaded nor proved. Though averments were made in the writ

petition that less compensation was assessed by wrongfully clubbing the

claims of the respondent No.1 / writ petitioner with separate claims of his

wife but it is not the case of the respondent No.1 / writ petitioner that the

same was challenged. The respondent No.1 / writ petitioner has also not

pleaded / proved that even if the compensation assessed wrongfully

remained unpaid, what steps were taken by the respondent No.1 / writ

petitioner therefor. Rather, the respondent No.1 / writ petitioner by filing

the petition for fixing of standard rent, accepted his status in the property as

that of a tenant and not that of a allottee. The respondent No.1 / writ

petitioner after 30 years, when the property was offered to him under Rule

87, cannot be heard to revive 30 years old claims, even if remaining

unsatisfied till then and which had become time barred by then. Rather, in

Annexure P-4 to the petition referred to hereinabove, a reference is found to

the compensation having been adjusted against a house at Patel Nagar and

of which no reference whatsoever is made in the writ petition.

25. The counsel for the respondent No.1 / writ petitioner even in the

hearing or in the written submissions has not addressed the said issues and

has merely repeated the contents of the writ petition.

26. There is another aspect of the matter. At the time when the claims /

compensation of the respondent No.1 / writ petitioner were being settled /

adjusted, the subject property was not even evacuee property which could

have been adjusted against the compensation; though at one time declared as

evacuee property, the same had been de-notified as an evacuee property.

Though as per the order of the Secretary, Land & Building, it was

subsequently acquired but the date of acquisition is not available. The

respondent No.1 / writ petitioner in the writ petition pleaded that the same is

"deemed to have acquired". There is nothing to show that the property was

acquired to settle the claims of the displaced persons as the respondent No.1

/ writ petitioner. On the contrary, it is on record that the property was

acquired along with other adjoining railway land for the purposes of

development as a Shopping Complex and which purpose could not be

achieved. The appellants cannot certainly be compelled to sell the said

property against old dead claims, even if any of the respondent No.1 / writ

petitioner as a displaced person. The respondent No.1 / writ petitioner, after

allowing his claims, even if any remaining unpaid / unsatisfied, to have

become stale, cannot on a subsequent independent offer for transfer being

made, be permitted to revive the same.

27. We therefore on merits also, do not find any merit in the claim in the

writ petition from which this appeal arises.

28. The counsel for the appellants in the written submissions has referred

to certain judgments on the powers of the Court, while exercising the

jurisdiction of judicial review but in the light of the above, need is not felt to

refer thereto.

29. The appeal is accordingly allowed; the order dated 14th July, 2009 of

the learned Single Judge is set aside and the writ petition from which this

appeal arises is dismissed.

30. In the light of the aforesaid facts, we also find the respondent No.1 /

writ petitioner to have indulged in frivolous litigation and to have abused

the process of the Court and as a result whereof he has perpetuated his

possession of the property for the last nearly 30 years at least, if not more

and owing whereto the plans of development of the subject land in

accordance wherewith the subject land along with the adjoining land was

acquired from the Railways, have also been aborted. We accordingly

burden the respondent No.1 / writ petitioner with costs of Rs.50,000/- and

also direct the appellants to now forthwith take steps in accordance with law

for recovery of possession of the subject property from the respondent No.1

/ writ petitioner / his heirs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE MAY 13, 2015 „bs‟