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2004 DIGILAW 385 (RAJ)

J. D. A. v. Puran Chand

2004-03-12

K.C.SHARMA, S.K.KESHOTE

body2004
Honble KESHOTE, J.–This special appeal under Section 18 of the Rajasthan High Court ordinance, 1949 arises from the judgment dated 6.5.1999 of the learned Single Judge in S.B. Civil Writ Petition No. 5306/1993. Under this judgment the learned Single Judge allowed the writ petition filed by the respondent No. 1 for enhancement of the compensation of the land acquired. (2). Briefly stated the facts of the case are that the agriculture lands comprising of Khasra Nos. 533, 534, 535, 536, 538, 539, 540, 542 and 543 measuring 14 bighas and 1 biswa situated in Village Ramjipura, Chainpura, Jhalana Dungri, Tehsil & District Jaipur, was acquired under the Land Acquisition Act. The Notification of the acquisition was published on 21st of August, 1969. (3). Originally late Shri Ganesh was recorded khatedar tenant of this land. After his death, his two sons - Mangi Lal and Kalyan Bux had succeeded. Kalyan Bus died on 10th of September, 1987 leaving behind surviving his heirs Bhori lal and Jagdish. (4). Mangi Lal, expired on 26th of October, 1973, was succeeded by his son Puran Chand. Though before the Land Acquisition Officer, in the land acquisition proceedings, there was a dispute between the claimants re the proportion of their share in the lands. Mangi Lal was claiming 1/2 share whereas Kalyan Bux was claiming 2/3 share. However, ultimately, between the claimants it has been held and decided that their shares are 2/3 and 1/3 of Kalyan Bux and Mangi Lal, respectively. (5). On 10th of January, 1975 the Land Acquisition Officer mad the award. The compensation has been awarded at the rate of Rs. 3000/- per bigha for non-irrigated land and at the rate of Rs. 4000/- per bighas for irrigated land. 1/3rd amount of the compensation awarded for this land is Rs. 53941/- and that comes in the share of Mangi Lal, now represented by Puran Chand. (6). Puran Chand, the respondent No. 1, prayed for reference of the matter to the Civil Court. There it was registered as Reference Case No. 18/75. On 3rd of December, 1982 the reference of the respondent No. 1 (Puran Chand) was dismissed by the Civil Judge (Sr.Div.) Jaipur City, Jaipur on the ground that it is barred by limitation. The respondent No. 1 has not challenged this decision of the Civil Judge (Sr.Div.) Jaipur City, Jaipur by filing appeal, revision or writ petition. (7). On 3rd of December, 1982 the reference of the respondent No. 1 (Puran Chand) was dismissed by the Civil Judge (Sr.Div.) Jaipur City, Jaipur on the ground that it is barred by limitation. The respondent No. 1 has not challenged this decision of the Civil Judge (Sr.Div.) Jaipur City, Jaipur by filing appeal, revision or writ petition. (7). Shri Kalyan Bux had also filed reference which was registered as reference case No. 19/75. During the pendency of the reference expired and his legal heirs Bhori Lal and Jagdish Bux were brought on the record. The reference case No. 19/75 was decided by the Civil Judge (Sr.Div.) Jaipur City, Jaipur on 22nd of August, 1989. The amount of compensation has been enhanced and it was determined at the rate of Rs. 20,000/- per bigha. The respondent No. 1 on 3rd of February, 1992 after decision of the Reference Case No. 19/75 filed an application before the Land Acquisition Officer, Nagar Pariyojna, Jaipur and prayed therein that the difference of the amount of compensation paid and the enhanced compensation be given to him. This application of the respondent No. 1 was dismissed by the Land Acquisition Officer on 12th of March, 1993 on the ground as being barred by limitation. (8). Dissatisfied with this order of the Land Acquisition Officer, the respondent No. 1 filed S.B. Civil Writ Petition No. 5306/1993 before this Court and under the order impugned in this appeal the same was allowed and thus this special appeal. (9). Shri Ajit Bhandari, the learned counsel for the appellant submits that the reference for enhancement of the compensation made by the respondent No. 1 has been dismissed by the Civil Court and thus on the basis of the award of enhancement thereof by the Civil Court no benefits could have been conferred upon him by the learned Single Judge. The next contention has been made that Section 28-A of the Land Acquisition Act, 1894 prescribed the limitation of three months for making the application for re- determination of compensation and the application for re- determination thereof has been filed after expiry thereof. In support of his contention, Shri Bhandari placed reliance on the following decision of the Honble Supreme Court, 1. Jose Antonio Cruz Dos R. Rodriguese & Another vs. Land Acquisition Collector & Another (1) 2. Vishav Bandhu Gupta and Another vs. State of Haryana and Another (2) 3. In support of his contention, Shri Bhandari placed reliance on the following decision of the Honble Supreme Court, 1. Jose Antonio Cruz Dos R. Rodriguese & Another vs. Land Acquisition Collector & Another (1) 2. Vishav Bandhu Gupta and Another vs. State of Haryana and Another (2) 3. Union of India and Another vs. Pradeep Kumari and Others (3) 4. Bhagti (Smt.) (Deceased) Through Her Lrs. Jagdish Ram Sharma vs. State of Haryana (4) (10). Mr. P.S. Sirohi, the learned counsel for the claimant respondent No. 1, submitted that the rejection of the reference application for enhancement of compensation of the respondent No. 1 has no bearing in the matter nor only on this ground the respondent No. 1 could have been demied the benefit of enhanced compensation. In his submission the dismissal of the reference application is barred by limitation, is not a decision on merits of the matter. (11). As regards to the second contention raised by the learned counsel for the appellant, Mr. P.S. Sirohi, the learned counsel for the respondent No. 1, submits that Section 28-A is not the relevant provision in the matter. The land acquired was owned jointly by the respondent No. 1 and the son of late Kalyan Bux. It is submitted that the co-owner would be entitled to have benefit of enhanced compensation given to other co-owner. In such matter the question of limitation does not arise for filing of the application. It is urged that after passing of the award by the Civil Court in the reference of the land acquired filed by one co-owner, it was obligatory upon the appellant on its own to give the enhanced amount of compensation to the respondent No. 1. (12). Making reference to the award of the Civil Court in the reference of shri Kalyan Bux, Mr. P.S. Sirohi, the learned counsel for the respondent No. 1, submits that the amount of compensation has been enhanced and as the heir of the deceased Kalyan Bux were having 2/3rd share in the land acquired, the court has made it clear that only to this extent he is entitled to the amount out of enhanced compensation. Thus, it is a composit award and benefits thereof are to be given to the respondent No. 1. In support of his contentions, he has made reference to the following decisions of the Honble Supreme Court, 1. Thus, it is a composit award and benefits thereof are to be given to the respondent No. 1. In support of his contentions, he has made reference to the following decisions of the Honble Supreme Court, 1. State of Tripura and Another vs. Roopchand Das and Others (5) 2. Jalandhar Improvement Trust vs. State of Punjab & Others (6) 3. Union of India & Another vs. Hansoli Devi & Others (7) 4. A. Viswanatha Pillai & Others vs. Special Tehsildar for Land Acquisition No. IV & Others (8) 5. The Scheduled Caste Co-operative Land Owning Society Limited, Bhatinda vs. Union of India & Others (9) (13). We have given our anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties. (14). It is not in dispute that the land acquired by the appellant was joint holdings of joint ownership of the father of respondent No. 1 and late Kalyan Bux. The Land Acquisition Officer in the matter held that these two co-owners in the acquired agriculture land were having the share in the ratio of 2/3rd and 1/3rd. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co-owners property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. (15). From the documents which have come on the record we are satisfied and it is also not the case of the appellant that the holdings of the co-owners acquired by the appellant have been partitioned between them and the division was effected by metes and bounds. Thus the respondent No. 1, a co-owner of the land acquired, is the owner of the same with the qualification entitled to receive compensation prorata. The appellant being the State or the Agency or the Instrumentality of the State should not contest a just claim of a citizen of whom the land is acquired on the technical ground. Thus the respondent No. 1, a co-owner of the land acquired, is the owner of the same with the qualification entitled to receive compensation prorata. The appellant being the State or the Agency or the Instrumentality of the State should not contest a just claim of a citizen of whom the land is acquired on the technical ground. The appellant has acquired the land of the respondent No. 1 and it is difficult to appreciate what to say to accept from it to take the technical objection re the entitlement of the claim. It has a right and entitled to resist the claim for enhancement and lead the evidence in rebutal to prove the prevailing price as on the date of the Notification and ask the court to determine the correct market value of the land acquired compulsorily under the Act but as regards to the persons entitled to receive compensation are concerned it has no role to play. It is for the claimants interested to lay the claim for compensation and the court would examine and to award the compensation to right person. (16). The appellant would not disentitle the respondent No. 1, a co-owner of an award to the extent of his legal entitlement when in the law he is entitled of the land in question, a joint holding and what was acquired was their proportion of right, title and interest in the acquired land. When the reference was made in respect of the land under Section 18 all co-owners are equally entitled to receive compensation prorata as per their shares. (17). We find that the matter is covered by the decision of the Honble Apex Court in the case A. Viswanatha Pillai vs. Spl. Tehsildar for Land Acquisition (supra). The reference may have to another decision in the case of Jalandhar Improvement Trust vs. State of Punjab & Others (supra), in which their Lordships of the Honble Supreme Court held as under. ``5. Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. ``5. Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. The 4th respondent indisputably is a co-owner along with her children who were added as petitioners 2 to 5 to the award dated 5.2.1986, in which case, even on the first principles of law one co-owner is entitled to have the benefit of the enhanced compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th respondents application for reference under Section 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to and, is no reason, in our view, to differentiate the claims of such co-owners whose claims came to be really sustained and that of the 4th respondent, for differential treatment. We are fortified to some extent in the view expressed above, by the principles laid down by this Court in the decision reported in (AIR 1991 Supreme Court P. 1966), A. Vishwanath Pillai & Ors. vs. Special Tehsildar for Land Acquisition. (18). No differentiation can be made in the matter of the claims of the compensation of co-owners. The first contention raised by the learned counsel for the appellant stands covered against it by the Constitutional Bench decision of the Honble Supreme Court in Union of India vs. Hansoli Devi (supra). Fruitfully here we may reproduce the relevant portion thereof in this judgment, ``4. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 C1 and F 85, still holds the field. The aforesaid rule is to the effect: ``If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 C1 and F 85, still holds the field. The aforesaid rule is to the effect: ``If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law- giver. co-owner of the property is an owner of the property acquired but entitled to receive compensation prorata. The State would plead no waiver nor omission by other co-owners to seek reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled to. since the acquired property being the ancestral coparcenary and continued to be kept in common among the brothers and the income derived therefrom was being shared in proportion of their shares by all the brothers it remained as joint property. It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must given effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness vs. John Hudson and Co. Ltd., 1955 (2) All ER 345, Lord Reid pointed out as to what is the meaning of ``ambiguous and held that ``a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning. It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anormalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anormalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose vs. Arabinda Bose, 1953 SCR 1 had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway Light Heat and Power Co. vs. Vandray, AIR 1920 PC 181, it had been observed that the Legislature is deemed not to waste it words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. is found to be clear but the unskulfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. Bearing in mind the aforesaid principle, let us now examine the provisions of Section 28-A of the Act to answer the questions referred to us by the Bench of two learned Judges. Bearing in mind the aforesaid principle, let us now examine the provisions of Section 28-A of the Act to answer the questions referred to us by the Bench of two learned Judges. It is no doubt true that the object of Section 28-A of the Act to confer a right of making a reference, who might have not made a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28-a of the Land Acquisition Act where some other person makes a reference and the reference is answered. But the Parliament having enacted Section 28-A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression ``had not made an application to the Collector under Section 18 in Section 28-A of the Act. The aforesaid expression would mean that if the land owner has made an application for reference under Section 18 and that reference is entertained and answered. In other words, it may not be permissible for a land owner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains a higher amount. In fact in Pradeep Kumaris case the three learned Judges, while enumerating the conditions to be satisfied, whereafter an application under Section 28-A can be moved, had categorically stated ``the person moving the application did not make an application to the Collector under Section 18. The expression ``did not make an application, as observed by this Court would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer question No. 1 (a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894. (19). The cases on which reliance has been placed by the learned counsel for the appellant are clearly distinguishable. These are not concerned and related to the cases where the enhancement of the compensation has been made on reference of co-owner of the acquired land and benefits thereof are being claimed by another co-owner. In case what it is contended by the learned counsel for the appellant is accepted, it will result in unjust enrichment of the State. (20). That apart it will also result in deprival of just and rightful entitlement of a co-owner of the acquired land. Not only this, for the same land there were two awards thereunder the compensation awarded by taking different price thereof by the Land Acquisition Officer and the reference Court. It is the case of compulsory acquisition of the land and there appears no reason and ground or justification to differentiate the claims of the co-owner. (21). We do not find any error in the judgment of the learned Single Judge. (22). As a result of the aforesaid discussion this appeal fails and the same is dismissed with costs which is quantified to Rs. 11000/-. (23). The learned counsel for the respondent No. 1, on being put by the court, submitted that he has charged Rs. 11000/- (Rupees eleven thousand) from the respondent No. 1 as fees to provide his professional services in the matter. The award of the cost does not mean and understand the nominal amount or the cost for the sake of the cost. The litigation in the courts in our country is very expensive. It is, in fact, out of reach of the poor persons, to which class the respondent No. 1 possibly belongs. His land has been compulsorily acquired, and he has been rendered landless. The litigation in the courts in our country is very expensive. It is, in fact, out of reach of the poor persons, to which class the respondent No. 1 possibly belongs. His land has been compulsorily acquired, and he has been rendered landless. How the poor persons would have arranged for this amount of expenses of litigation. It is a matter of compensation, the survival and he will not take any chance or risk. It is true, on low fee Advocate would have been available but it is a matter of confidence, professional efficiency and recognition with which the litigants are tempted in the selection of the Advocates. Where he decided to engage the professional service of particular Advocate to render his service to him in the matter, he has to pay the fee for it. There is no Act by the Parliament or the State prescribing the scale of fee of the Advocates. The Advocate Act, to our knowledge, does not prescribe the fee of the Advocates. Thus, to an Advocate whosoever approaches to provide his professional services in a given case, legally and legitimately he would charge his own cost of the services. In case only token cost or cost for the sake of cost is awarded it will be a great injustice to this category of litigants. Cost mean that he has to be adequately compensated for the expenses incurred for contesting this frivolous and misplaced litigation by none other than the Jaipur Development Authority, Jaipur. It appears that JDA makes every decision/order or direction of the Court or the Tribunal, a prestigeous issue and has no hesitation to lavishly spend the money in litigation. It is impersonnel machinery and nobody has any personal interest or stake but the same is not the case with the respondent No. 1. (24). Thus we find justification in the matter to award the aforesaid amount of costs against the Jaipur Development Authority, Jaipur and in favour of the respondent No. 1. (25). Consequent upon the dismissal of the appeal, the stay application, filed therewith, does not survive and the same is also dismissed.