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2008 DIGILAW 1476 (PNJ)

Parwati v. State of Haryana

2008-08-27

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. 1. Present revision petition is directed against the order dated 22.9.2004 passed by learned Additional District Judge, Gurgaon vide which execution petition filed by the petitioners for getting enhanced compensation was ordered to be dismissed. 2. The State of Haryana vide notification under section 4 of the Land Acquisition Act, 1894 (for short the Act) acquired agricultural land measuring 1068.64 acres in villages Jharsa, Kanhai, Bindapur and Samaspur for public purpose. Land measuring 28 kanal 15 marlas falling in the revenue estate of village Kanhai was acquired in which the petitioners were having specific share to the extent of 1/18th share. The Land Acquisition Collector passed award No.8 dated 23.3.1993 vide which compensation was awarded for 948.95 acres of land including land measuring 28 kanals 15 marlas out of which the share of the petitioners was 1/18th. 3. The said award of the Land Acquisition Collector was challenged by the other co-owners namely Maru Ram, Prem Raj, through their LRs and Ami Lal, Chhote Lal, Khubi, Shera sons of Baldev by filing a reference under section 18 of the Act seeking enhancement of the compensation so assessed by the Land Acquisition Collector. 4. The petitioners, however, did not file any reference under section 18 of the Act. 5. Reference filed by other co-owners of the land was partly accepted by learned Additional District Judge, Gurgaon in LA Case No.139 of 28.7.2000 titled Maru Ram and others Vs. State of Haryana and another. Maru Ram and others were entitled to receive enhanced compensation in respect of their acquired land mentioned in Statement No.19 at the rate of Rs.202/-per square yard irrespective of the nature of the land. Rates so affixed has attained finality as it has been upheld up to the Hon'ble Supreme Court. 6. The petitioners moved an application for execution of the decree on the plea that they were also entitled to the compensation at the same rate as was given to the other co-sharers even in absence of a reference under section 18 of the Act. 7. The State contested the Application moved by the petitioners on the plea that once the petitioners had accepted the compensation by not seeking reference they were not entitled to enhanced compensation before the Executing Court. 8. 7. The State contested the Application moved by the petitioners on the plea that once the petitioners had accepted the compensation by not seeking reference they were not entitled to enhanced compensation before the Executing Court. 8. In support of his contention, learned counsel for the petitioners has placed reliance on the Division Bench judgment of this court in the case of State of Haryana Vs. Bishan Singh and others 1981 P.L.J. 40, wherein this court was pleased to lay down as under:- “4. The only contention raised before us by Mr.Bhoop Singh, learned Additional Advocate General, Haryana, is that the respondents could not take the benefit of the award given by the learned Additional District Judge as they did not ask for reference and that the reference was made by the Collector only in respect of the claim of Kissi under section 18 of the Act. 5. After hearing the learned counsel for he parties, in the circumstances of the case, we are unable to agree with this contention of the learned counsel. Admittedly, Kissi and the respondents are co-sharers. The application for reference bore the name of all the co-sharers. It is correct that it had been signed only by one co-sharer but that application would be taken to have been filed on behalf of all the co-sharers. Moreover, in the instant case, the appeal was filed against the award by all the co-sharers and that appeal was allowed by a Division Bench of this Court. The view we are taking finds full support from a Division Bench judgment of this Court in Ch.Kehar Singh etc. Vs. Union of India and another, AIR 1963 Punjab 490, wherein it has been observed thus:- “As I look at the matter if the property acquired is joint and the co-owners have no distinct and specified shares therein, then a reference under Section 18 of the Act by one of the co-owners, for enhancement of the compensation awarded by the Land Acquisition Collector will enure for the benefit of other co-owners as well. In such a case, it can be safely concluded that the co-owner, who is wanting enhancement in the compensation was also acting on behalf of the other co-owners, because their interests are joint and indivisible.” Reliance was also placed on the judgment of this court in the case of The Amritsar Improvement Trust Vs. In such a case, it can be safely concluded that the co-owner, who is wanting enhancement in the compensation was also acting on behalf of the other co-owners, because their interests are joint and indivisible.” Reliance was also placed on the judgment of this court in the case of The Amritsar Improvement Trust Vs. Teja Singh and Ors 1981 PLJ 41. 9. Leaned counsel for the petitioner also placed reliance on the judgment of this court in the case of Shri Harmant Singh and others Vs. Land Acquisition Collector, Gurgaon, Haryana and others (1987-2) PLR 188, wherein this court was pleased to hold as under:- “5. Having heard learned counsel for the parties, I need to observe that the matter has been viewed in a hypertechnical way by the learned Additional District Judge. The award of the Collector in a land acquisition matter is almost an offer made by the state to compulsively purchase the land of a landowner. He may accept the payment without demur or accept it under protest, seeking revision of the offer in order to get just compensation by means of a reference to the Court under section 18 of the Act. The Court then enters upon the dispute to determine what the land owner be paid for the compulsive sale. What emerges in the award is just compensation due to be paid to the landowners by the State and the Collector. Now here, it is nobody's case that the petitioners had accepted compensation from the Collector without protest. The fact that a set of other co sharers, who presumably had likewise obtained compensation from the Collector under protest, had successfully got the compensation land enhanced. A reference made by those set of co-sharers for the enhancement of compensation would normally enure to the benefit of other co-sharers as well, sine the land acquired was one and their interests in every fraction of it howsoever microscopic they were, were joint and indivisible. The mere fact that their respective shares were defined in the record of rights being 1/32nd share each is not synonymous to say that each, share was distinct and specified as is the view of the learned Additional District Judge. For shares to be distinct and specified an element of exclusiveness and separateness needs to come to the fore so that the distinction stands prominently focussed so as to contrast with the other. For shares to be distinct and specified an element of exclusiveness and separateness needs to come to the fore so that the distinction stands prominently focussed so as to contrast with the other. No such element has been pointed out to me except to suggest that the respective shares are so categorized in the ownership column of the Jammbandi. That by itself is not distinctive to deprive the petitioners the fruits of the battle fought by their co-sharers in the Court of the District Judge. Being joint owners effort by some is in the eye of laws a joint effort.” 10. Reliance was also placed upon the judgment of this court in the case of Swarn Singh (deceased) by LRs. Vs. The State of Punjab and Ors. 1996 PLJ 193, wherein this Hon'ble Court was pleased to lay down that a reference made bythe Collector under section 18 of the Act enurs to be benefits of all other co-sharers. 11. Finally, reliance was placed on the judgment of this court in the case of Land Acquisition Collector, PSEB, Patiala Vs. Jagdish Raj and ors. 1991 PLJ 51 wherein this Court was again pleased to lay down as under:- “Land Acquisition Act, Section 18-Joint property in which co-owners have no distinct and specified shares –Reference under Section 18 sought by one co-owner –Other co-owners can take advantage of result of reference—Co-owner wanting enhancement in compensation also acting on behalf of other co-owners because their interests joint and indivisible.” 12. However, learned Deputy Advocate General, Haryana on the other hand placed reliance on the judgment of Hon'ble Supreme Court in the case of Ambey Devi (Smt.) Vs. State of Bihar and Anr. 1996(1) RLR 423, wherein Hon'ble Supreme Court was pleased to lay down as under:- “4. We accept the finding of the High Court that the appellant had not made any application under Section 18, though the appellant has asserted that she did make an application but no evidence has been placed before the High Court or in this Court. Thus, it is difficult to accept that such an application was in fact made before the Land Acquisition Officer within the limitation prescribed under Section 18(2) of the Act. Accordingly, we hold that the appellant had not filed any application as required under section 18(1) read with section 18(2) of the Act. Thus, it is difficult to accept that such an application was in fact made before the Land Acquisition Officer within the limitation prescribed under Section 18(2) of the Act. Accordingly, we hold that the appellant had not filed any application as required under section 18(1) read with section 18(2) of the Act. Section 53 does not apply to the facts of the case. The procedure prescribed under Section 18 and 30 is inconsistent with the procedure prescribed under Order 1, Rule 10 CPC. Order 1, R.10 CPC would apply to implead a necessary or proper party to effectuate complete adjudication of all the disputes having arisen between all the necessary or proper parties who may be bound by the decision. That question does not arise since inconsistent procedure has been prescribed under the Act. As held earlier, making an application in writing under sub-section (1) and within the limitation prescribed under sub-section (2) of Section 18 are conditions precedent for the Land Acquisition Officer to make a reference under Section 18; only on its receipt, under Section 20 civil Court gets jurisdiction to issue notice and thereafter to conduct enquiry, as contemplated under the Act. At that stage, the procedure of trial etc., as contemplated under the CPC, would apply and Section 53 of the Act would become applicable. It is an admitted position that the co-owner filed an application and had sought reference under Section 18 in respect of his share only. So, it is, as a fact, claims for compensation in specie and was paid towards 1/4th share to all the claimants. By no stretch of imagination, the application under Section 18(1) by one of the co-sharers would be treated as one made on behalf of all the co-sharers. Accordingly, we hold that the appellant is not entitled to lay any higher compensation pursuant to an award made by the reference Court under Section 26 at the instance of one of the co-owners.” 13. Learned Executing Court by placing reliance on the judgment of Hon'ble Supreme Court has been pleased to dismiss the execution application filed by the petitioners. 14. Learned counsel appearing on behalf of the petitioners placed reliance on the judgment of this court dated 16.5.2007 to contend that the impugned order cannot be sustained. The order passed by this court in CR No.1324 of 1997 titled 'Mohan Singh and others Vs. 14. Learned counsel appearing on behalf of the petitioners placed reliance on the judgment of this court dated 16.5.2007 to contend that the impugned order cannot be sustained. The order passed by this court in CR No.1324 of 1997 titled 'Mohan Singh and others Vs. State of Haryana and another reads as under:- “This is petition against judgment dated 21.1.1987 passed by Additional District Judge, Bhiwani whereby execution for payment of enhanced compensation by the land owners, now petitioners was dismissed because there had neither been reference under Section 18 nor was there any application under Section 28-A of the Land Acquisition Act. On behalf of the petitioner, it is argued that the petitioner is a co-sharer and even if there was no reference under Section 18, still he could file an execution and get enhanced compensation. It is argued that in the year 1982 when the District Judge decided reference under Section 18, Section 28-A of the Land Acquisition Act was not in force and therefore, no reference/application under Section 28-A could be made. A division Bench judgment of this Court reported in state of Haryana Vs. Bishan Singh and others, 1981, P.L.J. 40 has been relied and it is argued that the present petitioners are co-sharers. It was further argued when there was acquisition of joint land and there was reference under section 18 by one co sharer, then other co-sharers were entitled to benefit. Judgment reported in 1981 PLJ 73 Punjab State Vs. Globe Motor had been relied. 15. On behalf of the petitioners a copy of the execution application has been filed, which shows that petitioners are co-sharers with Bir Singh, who had filed reference under section 18, which was decided by District Judge Bhiwani on 13.4.1982. 16. On behalf of the respondents, it is argued that the judgments relied on by counsel for the petitioners are not applicable to the facts of the present case. It was argued that execution application itself shows that the shares are specified shares whereas in the judgments relied, the shares were not specified. 17. I have gone through the copy of execution application, the judgments and the facts of he case. When one of the co-sharers had filed a reference and there had been enhancement in his case and there is joint Khata, then it would be proper that the other co-sharers also get enhanced compensation. 17. I have gone through the copy of execution application, the judgments and the facts of he case. When one of the co-sharers had filed a reference and there had been enhancement in his case and there is joint Khata, then it would be proper that the other co-sharers also get enhanced compensation. Under these circumstances, this petition is accepted. It is directed that petitioners, who are stated to be other co-sharers of the same khata with Bir Singh, shall be entitled to same compensation as had been granted to Bir Singh.” Reliance was also placed on the judgment of this court in the case of State of Haryana Vs. Duli Chand 2001 (4) RCR (Civil) 410. 18. However, it may be noticed that this court distinguished the judgment of Hon'ble Supreme Court in the case of State of Haryana Vs. Duli Chand (supra). 19. Keeping in view the facts that it were the sons and daughters of Chiranji Lal who were seeking enhancement of compensation qua the land belonging to Chiranji Lal. 20. It may be noticed that Hon'ble Supreme Court in the case of A.Viswanatha Pillai and others Vs. Special Tahsildar for Land Acquisition No.IV and others AIR 1991 SC 1966 has also been pleased to lay down as under:- “2. The sole question for decision is whether in a reference sought for by one of the co-owners whether the other co-owners who did not expressly seek reference are entitled to enhanced compensation pro-rata as per their shares. It, is not in dispute that under the partition deed, the four brothers as coparceners kept in common the acquired property and Venkatachalam was in management thereof and each is entitled to 1/4 share in the ancient Anicut and the irrigation system. It is also undisputed that total enhanced compensation is Rs. 52,009.40 p. Therein all the four brothers including the appellant are entitled to 1/4 share each. In the reference application made by Venkatachalam indisputably he mentioned that the acquired property belonged to him and his other brothers. and the compensation awarded by the Land Acquisition Officer was inadequate and very low. It was also stated that they should get an enhanced amount at the figure specified in the reference application-Undoubtedly he stated therein that he is entitled to 1 / 4 share. and the compensation awarded by the Land Acquisition Officer was inadequate and very low. It was also stated that they should get an enhanced amount at the figure specified in the reference application-Undoubtedly he stated therein that he is entitled to 1 / 4 share. What he stated thereby was that of his entitlement of 1/4 share of the total enhanced compensation and obviously, after the reference on par with his three brothers, he is entitled to receive compensation at 1/4 share. The Courts below disallowed the payment to the appellants on the ground that there is no mention in the claim petition of the partition deed; that they are the co-owners and that there is no averment that Venkatachalam was seeking reference under Section 18 on his behalf and on behalf of his other three brothers. As regards the first two grounds are concerned they are palpably incorrect. It is seen that an express averment was made in the objections filed pursuant to notice under Sections 9(3) and 10 and also in his reference application under Section 18 of the Act, that there was prior partition and each of the brothers is entitled to 1/4th share and that they are dissatisfied with the award of the Collector. Undoubtedly there is no express averment in the reference application under section 18 that he is seeking a reference on his behalf and on behalf of his three brothers. It is contended by the counsel for the State that the pleadings are to be strictly construed and that as the reference was sought for only by Venkatachalam of all the six awards the other three brothers are not entitled to any share in the enhanced compensation. In support thereof it is also further contended that Viswanathan and Pasupathy had only asked for reference in respect of two awards and Sabhapathy Pillai made no request for reference against any of the six awards made by the Collector. It is true that Viswanathan and Pasupathy made such request in respect of two awards and Sabhapathy did not make any request for reference against any of the awards. But what would be the consequence in law is the question. It is surprising that the State having acquired the property of a citizen would take technical objections regarding the entitlement of the claim. But what would be the consequence in law is the question. It is surprising that the State having acquired the property of a citizen would take technical objections regarding the entitlement of the claim. The State certainly is right and entitled to resist claim for enhancement and lead evidence in rebuttal to prove the prevailing price as on the date of notification and ' ask the court to determine the correct market value of the lands acquired compulsorily under the Act. Bul as regards the persons entitled to receive compensation are concerned it has no role to play. It is for the claimants inter se to the claim for compensation and the country would examine and award the compensation to the rightful person. As seen in the objections pursuant to the notice under Ss. 9(3) and 10, Venkatachalam made necessary averments that himself and his brothers had 1/4 share in the Anicut and irrigation system pursuant to the partition deed resorted to therein. In his reference application under Section 18 also he reiterated the same and stated that the amount awarded by the Collector was inadequate and that they were dissatisfied with it and that they are entitled to more.' It is settled law that one of the coowners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners. In Kanta Goel v. B. P. Pathak (1.977) 3 SCR 412: (AIR 1977 SC-1599), this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners.as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1977) 1 SCR 395: (AIR 1976 SC 2335) and Pal Singh v. Sunder Singh (dead) by Lrs. (1989) 1 SCR 67 : (AIR 1989 SC 758). 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-owner's property was not its own. (1989) 1 SCR 67 : (AIR 1989 SC 758). 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-owner's 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. Therefore, a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rata. 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. As co-.owners everyone is entitled to 1/4 share therein. It was also laid by this Court in a recent judgment in Ram Kumar and Others v. Union of India [C. A. No. 195 / 78 decided on 21-2-1991 that it is the duty of the Collector to send full information of the survey numbers under acquisition to the court and make reference under section 18 and failure thereof is illegal. The same ratio would apply to the facts in this case as well. When one of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares. The courts below committed manifest error in refusing to pass an award and payment thereof to the appellants merely on the ground that there was no mention in this regard in the reference application or two of them sought reference in respect of two awards and the last one made no attempt in their behalf. The claimants are entitled to payment of the enhanced award by the Civil Court pro rata of their 1/4 share each with 15 per cent solatium and 4 per cent interest as awarded by the Civil Court. The appeals are accordingly allowed with costs of this court.” 21. It is well settled law that a co-owner has interest in the whole property and also in every parcel of it. The possession of joint property by one co-owner in the eyes of law is possession of all even if someone is actually out of possession. In view of proposition of law it would not be open to the State Government to give different rates for the same land as the petitioner would be deemed to have interest even in the property qua which the compensation has been enhanced. It is not a case where a co-owner has sold his share at agreed rate but is a case of compulsory acquisition. Thus, the State is bound to give the same price to all the co-sharers and a person cannot be discriminated merely for want of reference unless the property is partitioned. 22. In view of the finding recorded above and law laid down by Hon'ble Supreme Court as well as the settled law by this court referred to above this revision petition is allowed. The impugned order is set aside and the case is remanded back to the learned Executing Court to proceed with the execution application filed by the petitioners.