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2011 Supreme(P&H) 1138
2011(3) LAW HERALD (P&H) 2310
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ram Chand Gupta
RSA No.1999 of 1983(O&M)
Union of India
v.
Sham Sunder Dass & Anr.
{Decided on 09/05/2011}
For the Appellant:Ms. Ranjana Sahi, Advocate.
For the Respondents:Mr. Sanjay Majithia, Sr. Advocate with Mr. Shailender Mohan,
Advocate.
For the Applicant-Respondent in C.M.Nos.3368-69 of 2011:Mr. S.D. Bansal, Advocate.
Headnote:(A) Civil Procedure Code, 1908, Ss. 100(4), 100 (5)--Second appeal--Substantial question of law--Appeal was admitted on 7.12.1983 without framing substantial question of law--Court can formulate question of law at any point of time before leaving of appeal even without amending two grounds of appeal. (Para 18)
(B) Limitation Act, 1963, Art.182--Civil Procedure Code, 1908, Ss.2 & 100--Second appeal--First appeal was rejected on the ground that appeal was barred by limitation--Second appeal is maintainable--Even if an appeal is rejected on the ground that it was presented out of time, the same is a decree within the definition of a decree obtaining in the Code. (Para 26)
(C) Limitation Act, 1963, S.5--Condonation of delay--No hard and fast rule can be laid down in dealing with the applications for condonation of delay--A liberal approach in condoning the delay of short duration and a stricter approach, where the delay is inordinate, should be adopted--Though for condonation of delay, same yardstick should be applied for deciding the application for condonation of delay filed by private individuals and the State and, however, certain amount of latitude is not impermissible in the latter case. (Para 30)
(D) Civil Procedure Code, 1908, S.127 and O.41, R.27--Additional evidence--Official document--Authenticity of document is not in dispute--Such evidence can be allowed--Held; Additional evidence can be permitted by appellate Court for coming to just conclusion and for any other substantial cause even if the documents were within the knowledge of the appellant and that the documentary evidence, which cannot be created or manufactured for the first time after decision of the suit. (Para 43)
(E) Evidence Act, 1872, S.21--Admission--Admissions are relevant piece of evidence--It is for the party to explain. (Para 53)
(F) Land Acquisition Act, 1894--Cantonment Act, 1924--House Accommodation Act, 1926--Old Grants--Resumption of land--Compensation--Natural Justice--Plaintiff holding the property in dispute under ‘Old Grants’ terms governed by GGO No.179 date 12.9.1836--U.O.I resuming the said property being defence land--It was incumbent upon appellant-defendant to afford an opportunity of hearing to the respondents-plaintiffs at the time of determining of the quatum of building resumed--In the instant case no opportunity of hearing in regard to quantum of compensation had been afforded--Defendant is directed to afford an opportunity of hearing to the plaintiffs with regard to assessment of compensation. (Paras 67, 69 & 71)
(G) Land Acquisition Act, 1894--Cantonment Act, 1924--House Accommodation Act, 1926--Constitution of India, 1950, Art.13--Civil Procedure Code, 1908, S.100--Old grants--Resumption of property--Second appeal--Land in dispute is defence land--Same is held by plaintiffs under ‘OLD GRANT’ terms governed by GGO No.179 dated 12.9.1836--Plaintiffs have stepped into the shoes of their vendors--Vendors cleary maintained in the sale deed that building in dispute belongs to Union of India and they have rights in super structure only--Vendors only transferred the ownership of building in favour of plaintiff and not the land--Admission made in Ex DI is best evidence on the point--It does not lie in the month of plaintiffs now to say that U.O.I have no concern with the property in dispute--Government can resume the land--Suit of plaintiff dismissed--Held; That the resumption of building and the site underneath became operative on the date of expiry of one month’s notice (from the date of receipt) given to respondent-plaintiffs under regulation 6 in question as the resumption of building is not dependent on the prior payments of the value of the building. (Para 71)
Mr. Ram Chand Gupta, J.: - Facts leading to the present Regular Second Appeal are as under:
Respondents-plaintiffs filed a suit for declaration that Notice No.1/41/L/L&C/69 dated 21.3.1975/7.4.1975 issued by Deputy Director, Military Lands & Cantonments, Ministry of Defence (ML&C) New Delhi, relating to the resumption of Bungalow No.102, the Mall, Ambala Cantt, measuring 1.60 acres or thereabout and bounded as follows:-
On the North - By Road
On the South - Survey No:357 (Bungalow No.103)
On the East - Road
On the West - Survey No: 358,
is illegal, null, void and unconstitutional and against the principles of natural justice and hence, not binding upon the rights of the respondents-plaintiffs and defendant has acquired no right, title or interest therein.
2. It has been averred that respondents-plaintiffs are owners in possession of the property in dispute and that the impugned notice, duly described in para no.2 of the plaint, had been served upon them by appellant-defendant-Union of India by referring Bungalow in dispute as an “OLD GRANT” terms under the Government and, hence, Government decided to resume the said land and the building standing thereon and hence, in exercise of powers vested in the Government, the notice to quit the same is being given and respondents-plaintiffs were asked to deliver the possession of the same alongwith structure standing thereon to the Military Estate Officer, Ambala Circle, Ambala Cantt., on the expiry of one month from the date of service of the notice. It has also been made clear in the notice that on the expiry of one month from the date of service of the notice, the occupation of the respondents-plaintiffs and all rights, easements and interests therein belonging to them in the said land and building standing thereon shall cease to exist from the said date. Notice was also accompanied by a cheque for a sum of Rs.64126/- as value of authorised erection standing on the said land. However, the said cheque was returned by respondents-plaintiffs vide their letter dated 18.4.1975 protesting that the resumption of the property is vague and indefinite and no ground or reason has been mentioned in the notice for resumption of the property and the amount of compensation is highly inadequate and was not acceptable.
3. The said notice has been challenged by respondents-plaintiffs on the ground that no property belonging to citizen of India can be acquired except in accordance with law and that the notice is also in conflict with the provisions of the Land Acquisition Act, 1894, Cantonment Act, 1924 and House Accommodation Act, 1926; that no public purpose for resumption has been mentioned in the notice; that the notice is also discriminatory as the bungalow, of the private holders and similarly situated bungalows of other persons have not been resumed; that the Rules and Regulations have ceased to have any effect in view of Article 13 of the Constitution of India as the same are inconsistent with the Constitution of India and the Laws of India; that under GIR No.287/D, Ambala Cantt, dated 12.9.1936 property cannot be resumed; that the compensation offered for the lease hold rights is inadequate as respondents-plaintiffs had spent Rs.1,00,000/- in renovating the same and the present market value of the same is more than Rs.3,00,000/-; that the value of lease hold rights is about Rs.50,000/-; that the value of other gates, hedges and wires etc. is Rs.10,000/- and value of annexe is Rs.50,000/-; that no notice has been given to respondents-plaintiffs before issuing notice of resumption and hence, the notice is also in contravention of principles of natural justice.
4. It has also been averred that no notice and no opportunity of hearing has also been given to the respondents-plaintiffs before assessing the market value of the structure standing on the land in dispute. Plea has also been taken that even a trespasser cannot be dispossessed except with the authority of law. Notice under
