Delhi High Court
Deep Chand & Ors. vs Union Of India on 26 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.FA No. 9/2017 and Ex.FA No. 8/2017
% 26th April, 2017
1. Ex.FA No. 9/2017
DEEP CHAND & ORS. ..... Appellants
Through: Mr. Shashindra Tripathi,
Advocate.
versus
UNION OF INDIA ..... Respondent
Through:
2. Ex.FA No. 8/2017
RISHI PAL SINGH VERMA & ORS. ..... Appellants
Through: Mr. Shashindra Tripathi,
Advocate.
versus
UNION OF INDIA ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.15754/2017 (exemption) in Ex.FA No.9/2017
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M.No. 15755/2017 (for condonation of delay) in Ex.FA No.9/2017
2. For the reasons stated in the application, delay of 26 days
in re-filing the appeal is condoned.
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 1 of 13
C.M. stands disposed of.
Ex.FA No. 9/2017
3. This Execution First Appeal is filed by the
appellants/decree holders impugning the order of the executing court
dated 7.1.2017 dismissing the second execution petition filed by the
appellants/decree holders for execution of the judgment and decree of
the High Court dated 7.12.2000 in RFA no.111/1997 whereby the High
Court enhanced the compensation granted by the ADJ of the acquired
land, and the High Court awarded compensation at Rs.345/- per sq. yd.
i.e Rs. 3,45,000/- per bigha. The appellants/decree holders plead that
though the earlier execution petition which was filed on 31.3.2001 was
disposed of on 7.4.2005, however, since appellants/decree holders had
only received two amounts under the first execution petition of
Rs.6,48,470/- and Rs.17,92,658/- and which amounts do not total up to
grant of compensation at Rs.345/- per sq. yd. in terms of the judgment
dated 7.12.2000 of the High Court in RFA No.111/1997, hence the
second execution petition should be allowed and the appellants/decree
holders be granted enhanced compensation in terms of the judgment
and decree of the High Court dated 7.12.2000. It is argued that in fact
the Union of India in the case of appellants/decree holders had
challenged the judgment dated 7.12.2000 before the Supreme Court
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 2 of 13
being SLP (C) No. 6439/2003, but this SLP was dismissed on
28.7.2003, and therefore appellants/decree holders are entitled to the
additional compensation after giving adjustment of the received
amounts of Rs. 6,48,470/- and Rs. 17,92,658/-.
4. Unfortunately the appellants/decree holders are trying to
be clever by half. The appellants/decree holders are trying to take
advantage of a technicality only and this will be clear from the
discussion given hereinafter.
5. The facts of the case are that no doubt as regards the
appellants/decree holders the High Court in RFA No. 111/1997
awarded compensation of Rs. 345/- per sq. yd. and challenge to this
judgment by the Union of India was dismissed on 28.7.2003 so far as
the appellants/decree holders are concerned, however, it is undisputed
that the judgment of the High Court dated 7.12.2000 in RFA No.
111/1997 was also challenged by the Delhi Development Authority
(DDA) before the Supreme Court and the judgment of the Supreme
Court allowing this civil appeal is reported in the case of Delhi
Development Authority Vs. Bali Ram Sharma and Others (2004) 6
SCC 533. This was Civil Appeal No. 6767/2002. In this civil appeal
the Supreme Court set aside the judgment of the High Court in RFA
No. 111/1997 dated 7.12.2000 and only awarded compensation of Rs.
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 3 of 13
76,550/- per bigha instead of Rs. 3,45,000/- per bigha as granted by the
High Court in RFA No. 111/1997 decided on 7.12.2000.
6. The earlier execution petition filed by the
appellants/decree holders on 31.3.2001 seeking execution of the
judgment dated 7.12.2000 in RFA No. 111/1997 was consigned to the
record room on 7.4.2005 i.e after the decision in the case of Bali Ram
Sharma (supra) dated 3.8.2004. The earlier execution petition which
was filed on 31.3.2001 remained pending for just over about four years
till it was disposed of on 7.4.2005. Obviously, the earlier execution
petition remained pending because the judgment dated 7.12.2000 in
RFA No. 111/1997 was challenged before the Supreme Court in the
case of Bali Ram Sharma (supra). The execution petition continued
in fact in the interest of the various appellants/decree holders as per the
judgment in RFA No. 111/1997 so as to not unnecessarily prolong the
litigation and give them at least the compensation which was due to
them as per the judgment of the Supreme Court in the case of Bali
Ram Sharma (supra) dated 3.8.2004 besides reducing the interest
burden upon the DDA. This becomes clear from the letter dated
6.12.2004 of the DDA, copy of which has been filed in the connected
Ex. FA No. 8/2007 and this letter of the DDA dated 6.12.2004 reads as
under:-
"F1(12)99LMA/Pt/360 Dated 6.12.2004
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 4 of 13
To
The Dy Controller of Accounts
L&B Department, GNCTD Vikas Bhawan
I.P. Estate, New Delhi - 110002.
Sir,
Sub:- Payment of enhanced compensation in respect of village Dallupura
and Kondali
Demand in respect of villages Dallupura and Kondali has been raised by
you @ Rs. 3,45,000/-PB. Against this steep rise, DDA filed SLP before
Hon‟ble Supreme Court. As you know that the Hon‟ble Supreme Court
allowed the SLP of DDA and modified the amount of compensation from
Rs. 3,45,000/- per bigha to Rs. 76,550/- per bigha plus other statutory
benefits against the notification dated 17.11.1980. The Hon‟ble Supreme
Court allowed 5% to 10% increase in the market value plus other statutory
benefits for the subsequent notification dated 25.2.1981 and 24.11.1981
respectively. On the basis of this court order, certain RENMs in respect of
village Dallupura @ Rs. 76,550/-PB were received from the LAC concern
and payment was also released in those cases. But RENMs in other
remaining cases were not received from the concern LAC/L&B in spite of
our best efforts. Repeated letters to LAC/L&B yielded no result at all.
DElay on account of non submission of revised ENMs also entails heavy
interest burden on DDA. Hence it was decided that to save the department
from payment of further interest, the demand raised @ Rs. 3,45,000/- PB
may be reduced to Rs. 76,550/- as per order of Hon‟ble Supreme Court in
LA No. 6767 of 2002 pronounced on 3.8.2004, and the proportionate
amount so worked out may be released without waiting for receipt of
RENMs from LAC. Since payment @ Rs. 30,000/- has already been
released on payable demand long back, the remaining payment @ Rs.
46,550/- is being released and the balance amount has been adjusted. The
necessary remark to this effect has been recorded on the cheque forwarding
letter. In this connection it is also to inform you that payment @ Rs.
76,550/- has already been released to your earlier in a number of cases
before this order.
Your are therefore, requested to inform the concern LAC and drop the
demand against DDA for all the cases were balance payment @ Rs. 76,550/-
has been released to you, in respect of the said villages.
Yours faithfully,
s/d
(S.P. PADHY)
Director (LM)HQ
Copy forwarded for information and necessary action to :-
1. Secy., L&B, GNCTD, Vikas Bhawan, New Delhi
2. Divisional Commissioner-cum-Secy. (Revenue), 5, Sham Nath
Marg, ND
3. Dy. Commissioner (East),
4. ADM/LAC (East)
5. CLM, DDA for kind information.
s/d
Director (LM)HQ"
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 5 of 13
7. Therefore, it is seen that though the appellants/decree
holders had filed the first execution petition on 31.3.2003 for execution
of the judgment of the High Court dated 7.12.2000 in RFA No.
111/1997, however, such execution petition was allowed to be got
disposed of by them as per the order of the executing court dated
7.4.2005 in the first execution petition. The order dated 7.4.2005 in the
first/earlier execution petition filed by the present appellants/decree
holders, and passed in the presence of the counsel for the
appellants/decree holders, reads as under:-
"7/4/2005
Present Counsel for the D.H.
Four vouchers issued. File be consigned to record room.
ADJ, Delhi"
8. Obviously, the appellants/decree holders got the earlier
execution petition disposed of, though technically not recorded as
satisfied, but, the order dated 7.4.2005 clearly stated that the necessary
vouchers have been issued i.e payments have been made, and which
was because of the compensation granted in RFA No. 111/1997 by the
judgment dated 7.12.2000 being reduced by the judgment dated
3.8.2004 of the Supreme Court in the case of Bali Ram Sharma
(supra).
9. Obviously, now because of the „legal advice‟ the
appellants/decree holders have thereafter filed the present second
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 6 of 13
execution petition on 26.4.2011 i.e after around 6 years of disposal of
the first/earlier execution petition, and this is on account of the fact that
appellants/decree holders came to know that in their case an SLP was
filed in the Supreme Court against the judgment dated 7.12.2000 in
RFA No.111/1997 and which SLP(C) No. 6439/2003, was dismissed
by the Supreme Court in limine on 28.7.2003. However, the dismissal
of the SLP was not on merits but it was only dismissed on the ground
of delay because the single line order of the Supreme Court dated
28.7.2003 is "The Special Leave Petition is dismissed on the ground of
delay". In fact, in spite of the dismissal of the SLP in the case of the
appellants/decree holders by the order dated 28.7.2003 of the Supreme
Court, the appellants/decree holders got their execution petition
disposed of on 7.4.2005 inasmuch as by 7.4.2005 the Supreme Court
had decided the case of Bali Rama Sharma (supra), and which was
decided on 3.8.2004, thereby reducing the compensation granted by the
High Court from Rs. 3,45,000/- per bigha to Rs. 76,550/- per bigha.
The appellants/decree holders are therefore estopped from filing the
present second execution petition inasmuch if the earlier execution
petition was not got disposed by the appellants/decree holders then
either the Union of India or the DDA would have sought the filing of a
curative petition or any other remedy including a review petition for
Ex.FA No. 9/2017 & Ex.FA No. 8/2017 Page 7 of 13
setting aside the order dated 28.7.2003 dismissing the SLP in the case
of appellants/decree holders on the ground that in Bali Ram Sharma's
(supra) case the judgment of the High Court dated 7.12.2000 in RFA
No.111/1997 had been set aside.
10. Learned counsel for the appellants/decree holders argued
by drawing attention of this Court to orders of the Supreme Court in
some other cases whereby the Supreme Court dismissed challenge to
the appeal of the High Court in RFA No.111/1997 by refusing to
condone the delay, however, appellants/decree holders can take no
benefit of those orders of the Supreme Court dated 8.7.2011 and
13.5.2011 for various reasons. Before stating these reasons let me
reproduce the orders of the Supreme Court dated 8.7.2011 and
13.5.2011 in SLP(C) Nos. 10474/2011 and 8456/2011, and which
orders read as under:-
"Order dated 8.7.2011 in SLP(C) No.10474/2011
Upon hearing counsel the Court made the following
ORDER
There is a delay of 3351 days in filing this petition which is not
satisfactorily explained.
Special leave petition is dismissed on the ground of delay.
We make it clear that the order of the High Court will not be a precedent
having regard to the subsequent decision of this Court in Delhi
Development Authority Vs. Bali Ram Sharma & Ors., (2004) 6 SCC
533.
Order dated 13.5.2011 in SLP (C) No.8456/2011
UPON hearing counsel the Court made the following
ORDER
This petition is directed against judgment dated 7.12.2000 by which the
Division Bench of the Delhi High Court allowed the appeal filed by the
respondent and fixed market value of the acquired land at Rs.345/- per sq
yd.
The petitioner has also filed an application for condonation of 3662 days‟
delay in filing the special leave petition. In paragraph 4 of the application,
the petitioner has given the following explanation for delay of almost ten
years‟ delay:
"4. That the reasons for delay occurred in filing Special Leave
Petition are as under:
i) That the impugned judgment was passed by the Hon‟ble High
Court on 7.12.2000.
ii) That on 27.1.2001 certified copy of Hon‟ble High Court was
receive.
iii) That on 24.4.2001 processing of file for DLA opinion
initiated.
iv) That on 29.5.2001 opinion of DLA received.
v) That on 12.7.2001 File/letter sent by LAC (East) for drafting
SLP to Govt. Counsel.
vi) That on 13.7.2001 letter/file received by the PA (Mrs.
Dhingra) of Govt. Counsel (Sh.D.S. Mahara).
vii) That on 16.8.2001 litigation Clerk directed to obtain draft SLP
for further process.
viii) That on 23.7.2009 fresh execution No.31/08 (LAC No.19/94)
received from Sh. Gulshan Kumar, Hon‟ble ADJ,
Karkardooma Court received.
ix) That on 19.8.2009 letter written to Addl. Govt. to provide
status of SLP filed in RFA No.122/97. The same was done
after enquiry from Hon‟ble ADJ.
x) That on 21.8.2009 reply of Additional Govt. Advocate
received to the said case stating no record of proposed SLP
available and the same was also checked by them through
National Informatics Centre, Courts Information Division, no
details pertaining to this proposed SLP was found.
xi) That on 14.9.2009 letter to Addl. Government Counsel was
written for providing status of SLP in other 17 cases to be
provided by Addl. Govt. Advocate.
xii) That on 2010 objection filed in the Hon‟ble Court of Sh. S.K.
Gupta, ADJ, Karkardooma Court for dismissing the said
Execution in the Court of ADJ itself.
xiii) That on Amended objection filed in the Hon‟ble Court of Sh.
S.K. Gupta, ADJ, Karkardooma Court.
xiv) That on 15.4.2011 letter sent to Addl. Government for filing of
SLP in the said case.
xv) That on 2.5.2001 the file marked to panel advocate for drafting
of application for condonation of delay.
xvi) That on 2.5.2011 the panel advocate submitted the draft of
Application for condonation of delay to the Central Agency
Section."
In our view, the petitioner has failed to make out case for condonation of
delay because nothing has been said about the time gap of almost eight
years between the obtaining of draft special leave petition in August, 2001
and further processing of the matter till 2009.
Even on merits, we are satisfied that the High Court did not commit any
error by fixing the market value of the acquired land at the rate of Rs.345/-
per sq yd. The respondent‟s land was acquired vide Notification dated
17.11.1980 issued under section 4 of the Land Acquisition Act, 1894,
which was followed by declaration dated 29.9.1981 issued under section 6
of the Act. The Land Acquisition Officer passed award dated 31.3.1982
and fixed market value of the acquired land at Rs.8,500/- per bigha. On a
reference made under section 18 of the Act, the Reference Court vide its
order dated 24.12.1996 determined market value of the acquired land at
the rate of Rs.76,550/- per bigha. The High Court, after due consideration
of the material placed before it and the judgment of a co-ordinate Bench in
"Ani Kumar Sharma and others versus Union of India" [(2000) 6
D.L.T.825], fixed market value of the acquired land at Rs.345/- per sq. yd.
In our view, the reasons assigned by the High Court for revising market
value of the acquired land are legally correct and the impugned judgment
does not call for interference under Article 136 of the Constitution.
The special leave petition is accordingly dismissed on the ground of delay
and also on merits.
The petitioner is directed to pay the balance amount, if any, to the
respondent within a period of two months from today and submit a report
this effect in the Registry of this Court."
11. It may also be noted that the learned counsel for the
appellants/decree holders sought to argue that the Supreme Court in its
order dated 13.5.2011 has stated that the High Court has correctly fixed
the rate at Rs.345/- per sq. yd., and therefore, the appellants/decree
holders are entitled to benefit of the compensation of Rs.345/- per sq.
yd. i.e Rs.3,45,000/- per bigha in terms of the judgment dated
7.12.2000 in RFA No.111/1997.
12. In my opinion, the first reason for the appellants/decree
holders not getting any benefit of the orders of the Supreme Court
dated 8.7.2011 in SLP(C) No.10474/2011 is because this order itself
states that the delay was of 3351 days in filing the SLP was not
condoned, however, the Supreme Court made it very clear that the
judgment of the High Court dated 10.1.2002 in RFA No.55/2001 will
not be a precedent in view of the judgment of the Supreme Court in the
case of Bali Ram Sharma (supra). Putting it in other words, the
SLP(C) No.10474/2011 was only dismissed on the ground of delay but
at the same time the Supreme Court reaffirmed the bindingness and
applicability of the ratio of the judgment of the Supreme Court in the
case of Bali Ram Sharma (supra) granting compensation only at
Rs.76,550/- per bigha and not at Rs.3,45,000/- per bigha.
13. On the same aforesaid reasoning the order of the Supreme
Court dated 13.5.2011 in SLP(C) No.8456/2011 is also liable to be
distinguished as not applicable, and all the more so because the order
dated 13.5.2011 does not refer to earlier binding decision of the
Supreme Court in the case of Bali Ram Sharma (supra) dated
3.8.2004 and reported as (2004) 6 SCC 533. No doubt the Supreme
Court in the order dated 13.5.2011 in SLP(C) No.8456/2011 has stated
that the reasons given by the High Court for fixing rate at Rs.345/- per
sq. yd. cannot be faulted with, however, with utmost respect and
humility it is stated that it is the settled law that a later co-ordinate
Bench judgment of the Supreme Court cannot overrule or differ with
the earlier co-ordinate Bench judgment of the Supreme Court inasmuch
as the judgment in the case of Bali Ram Sharma (supra) was given by
the Division Bench of two Judges on 3.8.2004 and the subsequent
order dated 13.5.2011 in SLP(C) No.8456/2011 was also of a Division
Bench of two Judges of the Supreme Court and that too without
noticing the judgment in the case of Bali Ram Sharma (supra).
14. In view of the aforesaid discussion, it is seen that present
second execution petition which has been dismissed by the impugned
order of the executing court dated 7.1.2017, was a misconceived
execution petition inasmuch as appellants/decree holders were
estopped from filing the second execution petition after having got
disposed of the first execution petition on 7.4.2005 in the presence of
their counsel and wherein it is duly recorded that the necessary
vouchers have been issued i.e necessary payments have been made to
the appellants/decree holders.
15. Dismissed.
C.M. No. 15750/2017 (exemption) in Ex.FA No. 8/2017
16. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No. 15751/2017 (condonation of delay)
17. For the reasons stated in the application, delay of 34 days
in re-filing the appeal is condoned.
C.M. stands disposed of.
Ex.FA No.8/2017
18. This Execution First Appeal is against the impugned order
of the executing court dated 17.1.2017 and in terms of the reasoning
given while dismissing the EFA No. 9/2017, this EFA is also
dismissed. This EFA is liable to be dismissed in fact for a stronger
reason that there was no challenge by the Union of India as regards the
case of the appellants/decree holders in this case before the Supreme
Court by filing an SLP, whereas in EFA No.9/2017 and SLP was in
fact filed by the Union of India and which was dismissed.
19. This Execution First Appeal is also accordingly
dismissed.
APRIL 26, 2017 VALMIKI J. MEHTA, J
Godara/Ne
