RSA No.2554 of 1986 1 In the High Court of Punjab and Haryana at Chandigarh. *** RSA No.2554 of 1986 Decided on April 20,2011 State of Punjab through the Secretary-cum-Commissioner,Department of Urban Estate,Punjab,Chandigarh --Appellant vs. Bakhsish Singh (dead) through his LRs. --Respondents AND RSA No.2861 of 1986 Decided on April 20,2011 Bakhsish Singh (dead) through his LRs -- Appellants vs. State of Punjab through the Secretary-cum-Commissioner,Department of Urban Estate,Punjab,Chandigarh --Respondent ORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Ajaib Singh Addl.A.G.Punjab, for the appellant in RSA No.2554 of 1986 and for respondent in RSA No.2861 of 1986 Mr.H.S.Bhullar,Advocate,for the appellants in RSA No.2861 of 1986 and for the respondents in RSA No.2554 of 1986. Rakesh Kumar Jain, J, By this common judgment, I shall be disposing of two RSA No.2554 of 1986 2 Regular Second Appeals i.e. RSA No.2554 of 1986 (State of Punjab Vs. Bakhshish Singh (dead) through his LRs and RSA No. 2861 of 1986 Bakhshish Singh (dead) through his LRs Vs. State of Punjab, which have arisen from the common judgments passed by the learned Courts below by which the suit filed by the plaintiff Bakhshish Singh for recovery of ` 1,90,000/- as damages along with interest was dismissed by the trial Court but decreed only qua damages by the learned first Appellate Court. The State of Punjab has now filed the appeal for setting aside the judgment and decree of the learned first Appellate Court by which suit has been decreed for the grant of damages, whereas the plaintiff has filed the appeal for grant of interest as prayed for in the plaint. The facts, however, are extracted from RSA No.2554 of 1986. In brief, the case set up by the plaintiff is that he is the owner of land measuring 18 marlas comprised in khasra No. 62/2 and 67/1 situated within the revenue estate of village Mohali, Tehsil Kharar, District Rupnagar. The plaintiff alleged that he had constructed 5 shops measuring 8'x15'. There were four rooms each measuring 12'x10'. There was another room which measured 15'x8' and in addition thereto, there was another set of five rooms and each room measured 11'x 14½'. It is also submitted that there was a shed having the measurement of 11'x 7'-1½ ''. These rooms were residential and the shops and the rooms were built with pucca bricks, cement and plastering was also done on the walls. The flooring of the RSA No.2554 of 1986 3 shops and the rooms was also pucca. The roof was made of girders, wooden battons and tiles. The building was having electricity connection and there was a hand pump for the purpose of water. It is further alleged that his land was identified for acquisition under the Land Acquisition Act,1894 (for short,'the Act') by the Land Acquisition Collector, Urban Estate, Mohali, for which he was served with a notice issued under Section 9 of the Act to which he filed reply alleging that on 4.12.1982, the officials of the Urban Estate demolished his aforesaid construction without any authority of law. On account of the alleged demolition, the present suit has been filed for recovery of an amount of`` 1,90,000/-. In the reply, besides taking the preliminary objection of non- joining of necessary parties etc. it was alleged that the construction was not demolished under the Punjab New Capital (Periphery) Control Act,1952 (for short,'the Act'). It was pleaded that the construction was raised by the plaintiff in contravention of Section 5 of the Punjab New Capital (Periphery), Control Act,1952, which was illegal and unauthorised and was liable to be demolished under Section 12 (2) of the Act. Therefore, the plaintiff was not entitled to any damages and the suit was not maintainable in terms of Section 14 (2) of the said Act. It was also alleged that the land in question was notified for acquisition and as the construction raised by the plaintiff was unauthorised, he was given show cause notice under Section 12 (2) of the Act on 17.3.1981 as to why action be not taken against him for violation of Section 5 of the Act. The defendant alleged that structure was not demolished by the authorities RSA No.2554 of 1986 4 under the said Act. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled for the recovery of `1,90,000/-as damages as alleged ? OPP 2. Whether the suit of the plaintiff is bad for non-joinder of the necessary party, as alleged in para No.1 of the preliminary objections of the written statement ? OPP 3. Whether the suit of the plaintiff is not maintainable as alleged , in para No.2 of the preliminary objections of the written statement ? OPD 4. Whether the structure was demolished by the authorities under the Punjab New Capital Periphery Control Act, 1952 ? OPD 5. Whether the suit of the plaintiff is properly valued for the purposes of court fee and jurisdiction? OPP 6. Relief: The learned trial Court dismissed the suit of the plaintiff but the learned first Appellate Court decreed it. The learned first Appellate Court had observed that it is the admitted case that there existed rooms and shops in khasra No.62/2 and 67/1, therefore, it was not agricultural. It was also the admitted case that these rooms were RSA No.2554 of 1986 5 demolished by the defendant without payment of any compensation. The point in controversy before the Court was as to whether proper procedure was adopted in demolishing the said structure or it was demolished by the plaintiff himself. The respondent had taken the plea that the construction was demolished by the plaintiff himself, therefore, he was not entitled to any compensation but the learned first Appellate Court found that there was no plea in the written statement that the construction was demolished by the plaintiff. On the other hand, the plaintiff had alleged that the officials of the Urban Estate Department, Govt. of Punjab, demolished his construction on 4.12.1982 despite the fact that PW-2 had deposed that the proceedings under the Punjab New Capital (Periphery) Control Act, 1952 were pending before the competent authority and no order was passed after 16.3.1982. He also alleged that as per the official record, no demolition order was ever passed by the competent authority. The learned Appellate Court also found that in pursuance to the notice of acquisition, no award was announced by the Land Acquisition Collector and despite the order of stay granted by the High Court in the Civil Writ Petition filed by the plaintiff, demolition was ordered on 4.12.1982 which rendered his petition as infructuous. The Court also found that once the plaintiff had approached the High Court by way of writ petition in which he was granted injunction, he would not himself have demolished the suit property . In the end, it was concluded that the construction raised by the plaintiff was demolished by the officials RSA No.2554 of 1986 6 of the department without any order of competent authority. In response to the question of quantifying the damages, the learned Appellate Court had relied upon Valuation Report Ex.P-2 which remained unrebutted on record and as such holding the liability of the State Government, decree for an amount of `1,90,000/- on account of damages was drawn alongwith costs of the suit but the interest as claimed was not allowed. Learned counsel for the State while arguing the appeal namely RSA No.2554 of 1986 has submitted that heavy burden was upon the plaintiff to prove by way of cogent evidence about the role played by the appellant in demolition of his construction, especially when they had denied in the written statement that the same has been demolished by the authority. Except for this argument raised in this appeal, no other argument has been advanced by the learned counsel for the appellant. In reply, learned counsel for the respondent has submitted that the plaintiff had filed C.W.P. No.5342 of 1982 apprehending demolition of the property in dispute in which order was passed on 4.12.1982 by a Division Bench in terms of the order passed in C.W.P.No.5341 of 1982 in which it was ordered that “if the premises of the petitioners have not already been demolished, be not demolished”. Since the order was passed on 4.12.1982 and on the same date, the respondents were present at the site with a large posse of the labour to carry out demolition against the wishes of the plaintiff, RSA No.2554 of 1986 7 the demolition was carried out by the State as a result of which writ petition became infructuous and a statement was suffered by the plaintiff's Advocate on 13.12.1982 in C.W.P.No.5342 of 1982 in that regard. He has placed on record certain photographs which have been marked and from which it is evident that demolition work was carried out on the spot on the property in dispute. Learned Appellate Court had observed that once there was a stay in favour of the plaintiff granted by the High Court, he would have been the last person to activate demolition himself, rather the facts and circumstances indicate that the respondents taking the advantage of the time spent in communicating the order of the High Court to the authorities, demolished it on the same date. Thus, I do not find any error in the impugned judgment and decree of the learned first Appellate Court by which the suit of the plaintiff has been decreed for the purpose of granting compensation for damages having been caused to his property by the State and as such, I do not find any question of law much-less substantial in the appeal filed by the State of Punjab as envisaged under Section 100 of the Code of Civil Procedure,1908 (for short,'CPC') on the basis of which this Court could have interfered in the judgment and decree of the learned first Appellate Court. Hence, RSA No.2554 of 1986 filed by the State of Punjab is hereby dismissed. Adverting to the second appeal i.e. RSA No.2861 of 1986 filed against the judgment and decree of the leaned first Appellate RSA No.2554 of 1986 8 Court by which interest has not been granted and it is mentioned in the judgment that “in the circumstances of the case, further interest as claimed cannot be allowed”. Learned counsel for the appellants has submitted that though grant of interest is discretionary, yet discretion has to be exercised by the Court judiciously. The decree was granted by the learned first Appellate Court holding the plaintiff entitled to the amount of compensation vide its judgment and decree dated 22.5.1986 which was challenged by the State by way of present RSA No. 2554 of 1986 which was admitted on 1.10.1986. Thereafter, the State of Punjab had filed C.M.No.72-C of 1987 under Order 41 Rule 5 of CPC for grant of stay in which this Court had passed the order on 12.1.1987 to the effect that “the decree holder may recover the decretal amount on his furnishing security to the satisfaction of the executing Court”. Learned counsel for the plaintiff/decree holder has not brought to the notice of the Court as to whether the decretal amount has been recovered by the decree holder or not in pursuance of the order dated 12.1.1987. However, if the decretal amount has already been recovered in 1987 itself, then no loss has been caused to the plaintiff with regard to the interest as the decree was passed by the learned first Appellate Court on 22.5.1986 and if the decree holder had not recovered the decretal amount till today, then he is to be blamed because there is an order in his favour dated 12.1.1987 passed by this Court in C.M No.72-C of 1987 and for that matter, he cannot claim RSA No.2554 of 1986 9 interest. Thus, in these circumstances, I do not find that the plaintiff is entitled to any amount of interest. Hence, RSA No.2861 of 1986 filed by the appellants is hereby dismissed being without any merit and without involving any substantial question of law. No costs. April 20,2011 (Rakesh Kumar Jain) RR Judge