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2017 DIGILAW 307 (GUJ)

Union of India v. Rameshchandra Joshi

2017-02-07

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed by the Appellant - Union of India (Through Chief Secretary, Defence Department, New Delhi) being aggrieved with the judgment and order rendered in Special Civil Suit No. 34 of 1984 by the learned 2nd Additional Civil Judge (SD), at Jamnagar dated 30.12.1995 allowing the suit of the plaintiff partly ordering to hand over to the Respondent/Original Plaintiff the vacant and peaceful possession of the suit land as stated in detail in the judgment. 2. The background of the facts as stated in detail in the Appeal are that the possession of the land of the Respondent/Original Plaintiff was taken over by the Appellant - Union of India for the purpose of construction of the Air Force Station at Jamnagar. It is the contention of the Respondent/Original Plaintiff that the land was taken illegally and therefore the execution proceedings were initiated. The aforesaid First Appeal is preferred by the Appellant - Union of India, where the High Court by order dated 13.12.2002 stayed the judgment of the Civil Court for a period of six months with a direction to the Appellant/Union of India to expedite the acquisition proceedings of the suit land and deposit the amount of Rs. 5 lacs before the trial court. The order passed by the court (Coram: Kshitij R. Vyas and D.H. Waghela, JJ) at the time of admission of the present First Appeal is as follows: "Heard Mrs. Dawawala for the applicants as well as Mr. M.S. Shah for the opponent. It is submitted by the learned Counsel for the applicants that the acquisition proceedings are being initiated to acquire the suit land and the same are likely to take some time. Learned Counsel for the opponent, on the other hand, submitted that the suit is of 1984 and the opponent is denied the suit land even though he is held to be the owner of the same. Therefore, the opponent is entitled to get substantial amount by way of compensation from the applicants. Learned Counsel for the opponent, on the other hand, submitted that the suit is of 1984 and the opponent is denied the suit land even though he is held to be the owner of the same. Therefore, the opponent is entitled to get substantial amount by way of compensation from the applicants. We do find substance in the say of the opponent and also considering the fact that the opponent is denied the land in question, it is now high time that the applicants should expedite the proceedings and see to it that the suit lands are acquired as expeditiously as possible if at all they are interested in acquiring the suit lands. The stalemate cannot be allowed to continue indefinitely. Thus, considering the facts and circumstances of the case and that the applicants are very much interested in acquiring the suit lands for the national security purpose, we stay the implementation and execution of the award passed in Special Civil Suit No. 34 of 1984 by the trial court dated 30.12.1995 for a period of six months from today on condition that the applicants shall deposit Rs. 5 lacs (Rs. Five lacs only) within a period of six weeks from today before the trial court. The opponent shall be at liberty to withdraw the same subject to the adjustment of the said amount in the acquisition proceedings. The applicants shall, in the meantime, carry out all the formalities of acquisition of land and shall report to this Court about the progress of the same on the next date of hearing. To be listed in the third week of June 2003." 3. Thereafter, as it appears that the land has not been required, and therefore, it has been decided not to acquire the land and the restoration certificate has been issued by the Appellant - Union of India - Defence Estate Officer, Gujarat Circle, Ahmedabad to hand over the peaceful possession of the disputed land to the Respondent, which was sought for the purpose of Air Force Station at Jamnagar. Therefore, now the short issue, which is required to be considered is with regard to the prayer made in Civil Application No. 4369 of 2016 in First Appeal No. 631 of 2002, filed by the Appellant - Union of India for a direction to the Respondent/Original Plaintiff to deposit the amount of Rs. Therefore, now the short issue, which is required to be considered is with regard to the prayer made in Civil Application No. 4369 of 2016 in First Appeal No. 631 of 2002, filed by the Appellant - Union of India for a direction to the Respondent/Original Plaintiff to deposit the amount of Rs. 5 lacs along with interest from the date of withdrawal on the ground that the amount was permitted to be withdrawn as per the court's order, as it was contemplated that the acquisition proceedings may be initiated and the same amount could be adjusted towards the amount of compensation as reflected in the order. 4. Heard learned Advocate Ms. Trusha K. Patel for the Appellant - Union of India and learned Senior Counsel Shri Mehul S. Shah appearing with learned Advocate Shri Jenil M. Shah for the Respondent/Original Plaintiff. 5. Learned Advocate Ms. Trusha K. Patel for the Appellant - Union of India has referred to the Civil Application as well as the affidavit in reply and contended that the Respondent has claimed that the land of the Respondent was encroached upon illegally from 1982 till 2015 and has claimed the mesne profit for unauthorized use and enjoyment of the land in question. Learned Advocate Ms. Patel submitted that the amount of Rs. 5 lacs was deposited as per the order of the High Court which is permitted to be withdrawn on the ground that it may be adjusted after the land is acquired towards the acquisition cost. However, as per the order and the decision taken by the Appellant - Union of India, the restoration certificate has been issued deciding to restore the possession and hand over the land to the Respondent. The land is restored and therefore the amount which was permitted to be withdrawn by interim measure is required to be returned back to the Appellant - Union of India. 6. Learned Senior Counsel Shri Mehul S. Shah appearing with learned Advocate Shri Jenil Shah for the Respondent referred to the papers and the background of the facts and submitted that as stated in the affidavit-in-reply, the Respondent is deprived of his right to use the land from 1982 to 2015. 6. Learned Senior Counsel Shri Mehul S. Shah appearing with learned Advocate Shri Jenil Shah for the Respondent referred to the papers and the background of the facts and submitted that as stated in the affidavit-in-reply, the Respondent is deprived of his right to use the land from 1982 to 2015. He submitted that though the High Court has passed the order directing to deposit the amount which was permitted to be withdrawn as compensation for depriving the use of the land during all these period. In fact, as per the Government Resolution dated 21.10.1982 the yearly rent or the price of jantri is required to be calculated, and the amount would be much higher, and therefore, the Respondent would be entitled to claim damages from the Appellants. He therefore submitted that the Civil Applications may not be entertained and the First Appeal may be disposed of as having been infructuous. Learned Senior Counsel Shri Mehul S. Shah referred to Section 2(12) of the Code of Civil Procedure providing for mesne profit and submitted that the Appellants have unauthorizedly used the land or encroached the same thereby depriving the Respondent's use and occupation on the land, which would entitle him to get the mesne profit or compensation towards deprivation. Learned Senior Counsel Shri Mehul S. Shah submitted that the amount of Rs. 5 lacs is withdrawn, and therefore, in light of the same, it has become infructuous. 7. In view of the rival submissions, it is required to be considered whether the present First Appeal deserve consideration, which is stated to have become infructuous in light of the changed circumstances with decision of the Appellant - Union of India produced at Annexure-A that they do not require the land for the Air Force Station which has already been constructed at a different place, and therefore, they have decided to hand over the possession to the Respondent. The issue of acquisition or the cost of acquisition would not arise once the land is restored back to the Respondent. Therefore, the moot question, which is sought to be raised in Civil Application for directing to re-deposit the amount of Rs. 5 lacs with interest by the Respondent can be entertained or not, is required to be considered. 8. The issue of acquisition or the cost of acquisition would not arise once the land is restored back to the Respondent. Therefore, the moot question, which is sought to be raised in Civil Application for directing to re-deposit the amount of Rs. 5 lacs with interest by the Respondent can be entertained or not, is required to be considered. 8. As could be seen from the background of the facts, the person has been deprived of his right to use the land for a long period. May be the land was required initially for the Air Force Station, but ultimately, it has been constructed at a different place and the land is sought to be returned to the Respondent/the original owner, and therefore, the decree passed by the trial court would stand fulfilled to that extent when the possession is restored. 9. A useful reference can be made to the provisions of Section 48 of the Land Acquisition Act, which provide that the government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. Therefore, Section 48(2) of the Land Acquisition Act provides that when the government withdraws from any such acquisition, the amount of compensation shall be determined by the Collector. Thus, even where the possession is not taken, it provide for compensation. In the facts of the case, the possession has been taken admittedly which lead to the filing of the suit and thereafter the government has withdrawn from the acquisition of the land after the Hon'ble Division Bench of the High Court in First Appeal No. 631 of 2002 has directed to take the possession and also directed that the aforesaid amount of Rs. 5 lacs to be disbursed to the Respondent. Therefore, the statutory provision itself provides for compensation for deprivation of the right to use the land during the interregnum period. 10. Therefore the only question is whether the amount of Rs. 5 lacs, which was directed to be deposited by the Appellant - Union of India as and by way of interim order as stated above is required to be re-deposited by the Respondent or could be adjusted towards the mesne profit or damages as claimed by the Respondent. 11. The submission has been made by learned Advocate Ms. 5 lacs, which was directed to be deposited by the Appellant - Union of India as and by way of interim order as stated above is required to be re-deposited by the Respondent or could be adjusted towards the mesne profit or damages as claimed by the Respondent. 11. The submission has been made by learned Advocate Ms. Trusha Patel that as and by way of interim measure the amount was deposited pursuant to the order of the court as it was contemplated that it may be adjusted towards the cost of acquisition or the damages to be paid to the Respondent. However, the amount should be returned back, which is withdrawn by the Respondent. Though this submission is made, it cannot be entertained for a simple reason that the person is deprived of his right to use and occupy the land or to deal with the land the way he likes. Therefore, the provisions of Section 2(12) of the Code provide for mesne profit or even if it is not a mesne profit strictly it could be considered on the same analogy as damages for deprivation of the land for some period. The High Court has therefore passed an order though initially at the relevant time to give some relief to the Respondent till the acquisition proceedings are finalized. However, the fact that the High Court had directed to deposit the amount and permitted to withdraw the same, would imply that even at that stage, the court would have considered the aspect of damages for deprivation. Therefore, having regard to the background of the facts and the aspect of mesne profit or the damages for deprivation of the use and enjoyment of the land by the Respondent he would be entitled to claim some damages for such deprivation. Therefore, the order of the High Court, though was an interim order, could not be interpreted in a manner canvassed by learned Advocate Ms. Trusha Patel for the Appellant - Union of India, since, pursuant to the interim order it was deposited, is required to be returned back. 12. Therefore, the order of the High Court, though was an interim order, could not be interpreted in a manner canvassed by learned Advocate Ms. Trusha Patel for the Appellant - Union of India, since, pursuant to the interim order it was deposited, is required to be returned back. 12. As the issue of mesne profit or the damages for deprivation of the use and enjoyment of the land is also required to be considered on equitable principles, the mutual rights would stand balanced on such consideration, and therefore, the prayer as prayed for by the Appellant - Union of India in Civil Application for re-depositing the amount by the Respondent cannot be entertained. Therefore the present First Appeal along with both the Civil Applications deserve to be dismissed. The First Appeal, as discussed above, having been infructuous would stand disposed of and the Civil Application which is filed for recovery of the amount which has been deposited and disbursed to the Respondent also cannot be entertained. Therefore the present First Appeal along with Civil Application No. 4369 of 2016 as well Civil Application No. 9637 of 2013 deserve to be dismissed and accordingly stands dismissed.