RSA No.2813 of 2009 (O&M) -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2813 of 2009 (O&M) Date of decision: July 6, 2011. Haryana Urban Development Authority (HUDA) & Ors. ... Appellant(s) v. Sat Pal Dehria ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri J.P. Bhatt, Advocate, for the appellant(s). Shri D.C. Dhaula, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral): This order shall also dispose of RSA No.1027 of 2010 titled as ‘The Haryana Urban Development Authority and another v. Viru Mal and others’ and RSA No.1045 of 2010 titled as ‘The Chief Administrator, HUDA and others v. Puneet Aggarwal and another’, as counsel for the parties have submitted that the facts therein are identical to the one in RSA No.2813 of 2009 titled as ‘Haryana Urban Development Authority (HUDA) and others v. Sat Pal Dehria’ and as such no serious dispute has been raised thereto. For facility of reference, facts have been derived from RSA No.2813 of 2009. It has been further stated that the core issue and substantial question of law in all these three regular second appeals is same for consideration of this Court. This is a case where HUDA, being a Government agency, had RSA No.2813 of 2009 (O&M) -: 2 :- acquired the land; paid the compensation to the land owners and yet permitted them to remain on the land so acquired. Officials of the HUDA further colluded with the respondent and led no evidence before the civil court to the effect that the land has been acquired. It is only in the Public Interest Litigation when this Court issued directions that the land be demarcated and appropriate action be taken for the protection of land which was stated to have been acquired, the HUDA arose from its slumber. This Court need not to comment on the conduct of the HUDA officials as it is stated that already an enquiry has been conducted against the erring officials and as per the affidavit filed by the Chief Administrator, HUDA, disciplinary action has been initiated. Sat Pal Dehria – respondent herein filed a suit for declaration and permanent injunction. In the suit, it was pleaded that he had purchased a vacant plot measuring 7 marlas situated in abadi deh of village Ralley, Tehsil and District Panchkula for a sale consideration of Rs.23,000/- from one Jatinder Singh son of Harnam Singh, through a registered sale deed dated 17.11.1987. It was further stated that the plaintiff had taken the possession of the suit land and had raised a pucca construction by building two shops and a hall room on the ground floor and two rooms, a kitchen, a toilet and a bathroom on the first floor. Gram Panchayat Ralley, according to the plaintiff, had initially allotted house No.181-B to the suit property. Thereafter, the number was changed to 163. It was further averred that the electricity connection was also obtained by the plaintiff. Even a water/sewerage connection had also been granted by the Executive Engineer, HUDA, Division No.II, Panchkula. A notice under Section 18(2) of the HUDA Act, 1987 was served upon the plaintiff by the appellant-defendants-HUDA calling upon the plaintiff RSA No.2813 of 2009 (O&M) -: 3 :- to demolish the construction raised on the plot. Aggrieved against the notice, the present suit for declaration and permanent injunction was filed. The appellant-defendants on appearance had filed a written statement. It was stated by the appellants – defendants that the suit land on which the house was constructed by the plaintiff, was acquired by the Government and a notification to this effect was issued and thereafter Award No.32 was pronounced on 28.3.1977 by the Land Acquisition Collector. It was further stated that the compensation has already been paid to the original land owners/interested persons, therefore, the persons are in illegal occupation of the suit land. The trial court, after conclusion of the pleadings, had drawn up the following issues:- 1. Whether the plaintiff is lawful owner in possession of the property in question? OPP 2. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Relief. Plaintiff-respondent appeared as PW2 and tendered his affidavit Ex.PA reiterating as to what was stated in the plaint. Naib Tehsildar Suresh Kumar was examined as PW1. He stated that on 11.4.1995, under the orders of the Tehsildar, he had demarcated the phirni (circular road) of village Ralley. At that time, several persons were also present. Copy of the demarcation report was RSA No.2813 of 2009 (O&M) -: 4 :- exhibited as 'Ex.P1'. PW3 Krishan Kumar proved the sale deed executed by Jitender Singh in favour of the respondent-plaintiff. The appellants-defendants examined Amar Nath Naib Tehsildar as DW1. He tendered his affidavit Ex.DA in which he stated that the land was acquired by the Government vide award No.32 dated 28.3.1977 and a detailed statement of the area acquired in village has been prepared in accordance with Para No.36-1 of the Financial Commissioner Standing Order No.28. It was also brought to the notice of the court that the land of village Ralley which falls in abadi deh was exempted from acquisition. The trial court relied upon the demarcation report Ex.P1 and held that the suit property fell in the Municipal Committee and the plaintiff- respondent is owner in possession of the suit property. Aggrieved against the same, the appellants had filed a civil appeal. The lower appellate court upheld the findings given by the trial court. The crucial issue which arises in this appeal for consideration of this Court is as to whether the land on which house has been constructed, is within the abadi deh or has been acquired by HUDA. In other words, whether the site where the house has been constructed, was exempted during acquisition proceedings or not. A Coordinate Bench on November 28, 2009 had adjourned the matter to enable the counsel for the appellants to ascertain whether any action has been initiated by the appellants against the officials guilty of not producing the evidence before the trial court. The order passed by Coordinate Bench on November 28, 2009 reads as under: “On the last date of hearing the matter was adjourned to enable the learned counsel for the appellant to ascertain whether any action had been initiated by the appellant RSA No.2813 of 2009 (O&M) -: 5 :- against the official alleged to be guilty of not producing the necessary evidence. Learned counsel states that he has not yet heard the appellant and prays for a short date. On request, adjourned to 15.12.2009.” On November 08, 2010, another Coordinate Bench passed the following order:- “Vide C.M. No.11230-C of 2010, in compliance of the order dated 19.8.2010, the applicant-appellants have placed on record an affidavit of Shri Ashwani Sharma, Estate Officer, HUDA Panchkula. Para 2 of the aforesaid affidavit reads as follows:- “That the explanation of Sh.Amar Nath, the then Naib Tehsildar, HUDA, Panchkula was called and in response to the said explanation, Sh.Amar Nath has relied that he is 77 years old and his health does not permit him to move and so he may be provided with the documents. The documents are being sent to Sh.Amar Nath so that he can send his reply. It is stated herein that Sh.Amar Nath, the then Naib Tehsildar who was a retired employee of the State of Haryana, was appointed on contract basis by the competent authority and he worked in the office from 20.8.2007 till 21.01.2008 and thereafter since his contract was not renewed, he left the job. The explanation of the counsel Sh.Madan Jassal, Advocate was also called but the same was received back undelivered, however, fresh addresses being obtained as is no more on the HUDA panel.” The aforesaid explanation, as submitted by the RSA No.2813 of 2009 (O&M) -: 6 :- appellant is hardly any explanation. It seems that every effort has been made to save the guilty officials. Let a notice be issued to Chief Administrator HUDA to be present in Court and show cause as to why the inquiry be not conducted through an independent agency. If no affidavit fixing the responsibility and further taking action against the erring officials is not filed, the Chief Administrator shall be present in Court. List on 6.12.2010.” In compliance of the aforesaid order dated November 08, 2010, Chief Administrator, HUDA has filed an affidavit in this Court. In the affidavit, it is stated that a show cause notice has been issued for major penalty to Anil Kumar, Office associate who was assisting Amar Nath, the then Naib Tehsildar, appointed on contract basis. Another Civil Misc. No.11883-C of 2009 was filed under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence in which it was stated that compensation has already been paid qua the land in possession of the respondent-plaintiff. It is further stated that Award No.32 dated 28.3.1977, Annexure A/4, could not be proved on record. It is further averred that demarcation reports dated 8.12.1998, 12.7.2005 and 2.1.2009, Annexures A/1 to A/3 were also not proved before the trial court. In view of these demarcation reports, it is submitted that the land in possession of the respondent-plaintiff has been acquired and he is deemed encroacher over the suit property. A perusal of award No.32 dated 28.3.1977 given by Land Acquisition Collector, Panchkula reveals that 1555 kanals 11 marlas (194.44 acres) of land in village Ralley was acquired. Counsel for the appellants has submitted that since the officials of the HUDA were negligent and have not RSA No.2813 of 2009 (O&M) -: 7 :- produced the essential evidence before the trial court, officials of the HUDA have been put into quandary for non-complying with the directions issued in Public Interest Litigation, they are facing prosecution for contempt. He has referred to COCP No.2161 of 2010 filed in this Court. Counsel has stated that possession of the valuable land acquired, could not be taken because of the impugned decree passed by the civil court. Counsel for the appellants has further stated that he will not hesitate to say that a fraud has been committed by the officials by not producing the best evidence before the court. According to the Counsel for the appellants, following substantial question of law arises for consideration of this Court:- “Whether the property which vests in the agency of the State and for which lawful acquisition proceedings were concluded, can be permitted to remain in the hands of unauthorised occupier simply because of the negligence of the officials, who failed to lead necessary evidence before the Court?” I have perused the application, viz CM No.11883-C of 2009, and Annexures A-1 to A-4 appended thereto. Prima-facie, if these documents are taken into evidence, the result of the litigation would be a different one. However, these documents cannot be taken into consideration by this Court until they are proved by leading necessary evidence and the persons who had done demarcation are produced and cross-examined. Suffice it to say that officials of the HUDA have been negligent and have withheld the necessary evidence and documents from the Court. RSA No.2813 of 2009 (O&M) -: 8 :- This Court can only observe that the agency of the State requires necessary courage, conviction and will to remove the encroachers. A populist measure to look away and not act may not always be fruitful. By punishing an associate Assistant, a petty official, those officials alone who were duty bound to defend and safeguard the interest of HUDA, cannot be absolved and encroacher cannot be permitted to remain upon the land acquired forever. The endeavour of the Court is to arrive at truth and dispense justice. If the officials of the State agency have not taken necessary care and have not performed their duty with due diligence, interest of public cannot be allowed to suffer. At the same time, the plaintiff who has acted in accordance with the provisions of law by filing a civil suit and by leading evidence, is required to be compensated by the HUDA by paying exemplary costs. This Court cannot wish away that the plaintiff had instituted the suit in the year 2000 and since then he is in the corridors of the Courts. Taking totality of circumstances into consideration, the present appeal is accepted subject to payment of cost. The matter is remanded back to the trial court to try the suit afresh from the stage of leading evidence. Plaintiff and the appellant-defendants shall be afforded three opportunities each to lead their evidence. The suit shall be decided within six months from the date of receipt of a certified copy of this order. Having held that there was negligence on the part of the officials of appellants-defendants and therefore, the respondent-plaintiff was declared to be owner in possession of the property which was acquired in the year 1977 and the injunction was in his favour and against the appellants-defendants, this Court has to determine the cost which the appellants-defendants should pay for the RSA No.2813 of 2009 (O&M) -: 9 :- negligence on the part of its officials. How much cost, is a question which confronts this Court. This Court has already noticed that the suit was filed by the respondent-plaintiff in the year 2000. This Court can well imagine that the respondent-plaintiff had engaged a counsel in the trial Court. Thereafter, an appeal was filed in the lower appellate Court by the appellants-defendants and there also the respondent-plaintiff engaged a counsel. This is the third round of litigation. Engagement of a counsel in three forums in itself is a costly affair. Besides this, much time and energy of the respondent-plaintiff would have been consumed in prosecuting the suit and then defending his rights in two appeals. This Court is conscious that to tell a litigant that after eight years the litigation will start afresh, in itself is burdensome. But at the same time, this Court cannot shut its eyes to the fact that the land was acquired in the year 1977 and is in the town which is now an affluent suburb of Chandigarh. In the present day real estate boom, land has become too valuable. Therefore, this Court has to balance the equities and ensure fair play that the appellants-defendants do not lose the land and at the same time the respondent-plaintiff is compensated for the cost already incurred by him. Guidance can be sought from the words of Hon’ble the Apex Court in ‘Salem Advocate Bar Association, Tamil Nadu v. Union of India’ 2005 AIR (SC) 3353, wherein their Lordships observed as under: “38. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35 (2) of the Code. Such a practice also encourages filing of RSA No.2813 of 2009 (O&M) -: 10 :- frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.” Section 35 CPC vests discretion in the Court to determine as to how much cost should be imposed and by whom it should be paid. At the same time, this discretion must be exercised on sound legal principles considering the facts and circumstances of each case. For the reasons spelt-out above, this Court is of the view that cost of Rs.1,00,000/- will be adequate. This cost shall be paid by the appellants-defendants to the respondent-plaintiff. However, it is made explicit clear that the reasons stated and the observations made to justify the cost should not be construed as an expression on merits of the case. The parties shall appear before the trial court on 17.8.2011. In case cost is not paid by HUDA on the date of first appearance, law shall take its own course. [Kanwaljit Singh Ahluwalia] July 6, 2011. Judge kadyan/rps