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2013 DIGILAW 1046 (JHR)

Teju Bedia v. Union of India

2013-09-12

PRASHANT KUMAR

body2013
JUDGMENT Prashant Kumar, J. This writ application has been filed for quashing the order dated 20.10.2011 (Annexure-5) passed by respondent no.3, whereby and where under he decided the dispute relating to apportionment of compensation himself by usurping the jurisdiction of the Civil Court. 2. It appears that lands, pertaining to khata no. 49, plot nos. 171,361,365,462 and 545, area 0.90, 1.12, 0.37.0.25 and 1.91 acres respectively of Mouza Kothari, thana no.88, Ramgarh acquired for construction of National Highway no.33. It further appears that for the said lands Award Nos. 27,64,68,72 and 88 issued in favour of Mani Ohdar Bedia and Bhodu Bedia, son of Kaila Bedia and Bedesiya Bedia son of Dhani Bedia. It appears that petitioners filed an objection (Annexure-1), before respondent no.3, wherein they stated that the lands pertaining to khata no.49 are jointly recorded in the name of Mani Ohdar Bedia, Bhodu Bedia and Bidesiya Bedia. They also stated that they are descendants of Bidesiya Bedia. Thus, they are also entitled to get compensation. 3. After receiving the objection, respondent no.3 issued notices to Mani Ohdar Bedia ,Bhodu Bedia and Bidesiya Bedia vide Annexure-2. Thereafter, petitioner had filed another detailed application, wherein they gave genealogical table showing that they are descendants of Bidesiya Bedia, whereas respondent nos. 5 and 6 are descendants of Mani Ohdar Bedia. They further stated that as they are legal heirs of Bidesiya Bedia, they are also entitled to receive compensation amount. In the said application, petitioner further made averments that Mani Ohdar Bedia was a member of Schedule Tribe and his sons Paran Ohdar, Akla Ohdar and Sukra Ohdar died leaving behind no male heirs. They also stated that their wives have no right to inherit joint family property. Thus, joint interest of Mani Ohdar Bedia and Bhodu Ohdar Bedia devolves upon Bidesiya Bedia. Accordingly, petitioners claim that they are entitled to receive entire compensation amount. 4. It appears that respondent no.5 and 6 filed a rejoinder to the application of the petitioners, wherein they gave another genealogical table. According to them Phirangi Bedia had two sons, namely, Mani Bedia and Bhodu Bedia. Bhodu Bedia died issue less. Mani Bedia had three sons,namely Paran Bedia, Akla Bedia and Shukra Bedia. Lalo Devi is wife of Paran Bedia. Whereas Akla Bedia had one daughter, namely, Sadma. Sadma had one son, namely, Kishun Bedia. According to them Phirangi Bedia had two sons, namely, Mani Bedia and Bhodu Bedia. Bhodu Bedia died issue less. Mani Bedia had three sons,namely Paran Bedia, Akla Bedia and Shukra Bedia. Lalo Devi is wife of Paran Bedia. Whereas Akla Bedia had one daughter, namely, Sadma. Sadma had one son, namely, Kishun Bedia. Kishun Bedia has two sons namely, Nakul Bedia and Subhash Bedia.Shukara Bedia has two daughters, namely, Mankuria and Niraso. Niraso has one son namely, Maksu Bedia. However,respondent nos. 5 and 6 admitted that petitioners are descendants of Bidesiya Bedia. 5. Further case of respondent no. 5 and 6 is that Lalo Devi,wife of Paran Bedia executed a registered Will in favour of Mankuria, Kishun and Maksu. They further stated that after death of Lalo Devi. Mostt. Mankuria had filed Probate case in the Civil Court, Hazaribagh which was numbered as Probate Case No. 53/64. It is stated that in the said Probate Case, sons of Bidesiya Bedia, namely, Manbodh, Chhaku and Khandra appeared and filed objection. Thus, said Probate Case converted into a title suit bearing Title Suit No. 09/65. It is stated that in the said Probate Case right title, interest and possession of the Mankuria and Kishun has been declared by the Court below. Later on, names of the respondent nos. 5 and 6 mutated. Accordingly, respondent nos. 5 and 6 had claimed that they are entitled to get entire compensation amount. 6. It appears that respondent no.3 vide his order dated 20.10.2011 rejected the objection filed by petitioners and concluded that respondent nos. 5 and 6 are entitled to get entire compensation amount, because probate court declared their right, title and possession over the lands in question. The said order is impugned in this writ application. 7. Shri Ayush Aditya, learned counsel appearing for the petitioners submits that there is dispute between the parties with regard to apportionment of compensation amount. Thus, in terms of Section 3(H)(4) of the National Highways Act, 1956, respondent no.3 has no option but to refer the dispute before the Civil Court for decision. He further submits that respondent no.3 has usurp the power of Civil Court while deciding the dispute regarding apportionment of compensation amount. Accordingly, he submits that impugned order, as contained in Annexure-5, is wholly without jurisdiction. 8. On the other hand, Sri A.K.Mehta, learned counsel for respondent nos. He further submits that respondent no.3 has usurp the power of Civil Court while deciding the dispute regarding apportionment of compensation amount. Accordingly, he submits that impugned order, as contained in Annexure-5, is wholly without jurisdiction. 8. On the other hand, Sri A.K.Mehta, learned counsel for respondent nos. 5 and 6 submits that in the instant case, petitioners, as well as respondent no.5 and 6 are claiming that they are entitled to receive the amount of compensation. Thus, as per Section 3(H)(3), respondent no.3 has jurisdiction to determine the question as to who is entitled to receive compensation. He further submits that competent Civil Court had decided the right title and interest of respondent nos. 5 and 6 over the lands in question vide judgment dated 24.06.1969 in Title Suit no. 09/65. Thus, respondent no.3 has rightly concluded that the respondent nos. 5 and 6 are entitled to receive entire compensation amount. Accordingly, he submits that there is no illegality in the impugned order which require any interference. 9. Shri Ayush Aditya, in reply to the submissions made by Shri A.K.Mehta submitted that aforesaid judgment, passed in Title Suit No.09/65 by 2nd Additional District Judge, Hazaribagh, is non est in the eye of law, because said judgment passed in a Probate Proceeding. It is well settled that a Probate Court is not competent to determine the question of title and possession. Thus, the said order passed by Probate Court is without jurisdiction and same is a nullity. Thus, no right title and interest flows from the said judgment in favour of respondent nos.5 and 6. He further submits that it is admitted by respondent nos. 5 and 6 that petitioners are descendants of Bidesiya Bedia. He further submits that respondent nos.5 and 6 annexed Khatian of the lands in question vide Annexure-A. It is manifest from the Khatian, that lands are jointly recorded in the name of Mani Ohdar Bedia, Bhodu Bedia, and Bidesiya Bedia. It also appears that Bidesiya Bedia was in exclusive possession of some of the lands, for which compensation awarded. Under the said circumstance, the dispute between the parties is for the apportionment of the compensation amount, thus, comes within the purview of Section 3(H)(4) of the National Highways Act, 1956. 10. Having heard the submissions, I have gone through the record of the case. 11. It is an admitted position that awards bearing nos. Under the said circumstance, the dispute between the parties is for the apportionment of the compensation amount, thus, comes within the purview of Section 3(H)(4) of the National Highways Act, 1956. 10. Having heard the submissions, I have gone through the record of the case. 11. It is an admitted position that awards bearing nos. 27,64,68,72 and 88 issued in favour of Mani Ohdar Bedia, Bhodu Bedia and Bidesiya Bedia with respect to lands pertaining to khata no. 49, plot no. 171,361,365,462 and 545 having area of 0.90, 1.12,0.37.0.25 and 1.91 acres of Mouza Kothar,Thana no.88, Ramgarh. From perusal of Khatian (Annexure-A), it appears that all the lands pertaining to khata no. 49 stand recorded jointly in favour of Mani Ohdar Bedia, Bhodu Bedia and Bidesiya Bedia. As noticed above, it is admitted that petitioners are descendants of Bidesiya Bedia. Thus, prima facie, I find that petitioners are also entitled to receive some part of the compensation amount. But respondent no.3 refused to give any part of the compensation amount to the petitioners, because right, title and interest of the respondent no.5 and 6 and their predecessor had been declared on the lands in question by the Probate Court in title suit bearing Title Suit No. 09/65. 12. The judgment of the Probate Court is annexed with the counter-affidavit as Annexure-'C'. In the said judgment learned 2nd Additional District Judge, Hazaribagh had ordered that :- "plaintiffs are entitled to a declaration of their title and confirmation of their possession over these lands by virtue of that Will (Ext.1) (emphasis added) 13. In my view, the Probate Court has no jurisdiction to pass such order. It is well settled that the function of a Probate Court is to see that Will executed by the testator was, actually executed by him in a sound state of mind, without coercion or any undue influence and the same was duly attested. The Probate Court is neither competent to determine the question of title to the suit property nor it can go into the question whether suit property bequeath by the Will are joint ancestral property or acquired property of the testator. Reference in this connection may be made to "Kanwarjit Singh Dhillon. Vs. Hardyal Singh Dhillon and others"( 2007)11 SCC-357. 14. In "Krishna Kumar Birla. Vs. Reference in this connection may be made to "Kanwarjit Singh Dhillon. Vs. Hardyal Singh Dhillon and others"( 2007)11 SCC-357. 14. In "Krishna Kumar Birla. Vs. Rejendra Singh Lodha and others" (2008) 4 SCC 300 , it has been further held that question of title arising under the Act cannot be gone in the Probate proceeding. Construction of Will relating to right, title and interest of any person is beyond the domain of Probate Court. 15. It has been held by Hon'ble Supreme Court in "Chandrabhai K.Bhoir and others. Vs. Krishna Arjun Bhoir and others"(2009)2 SCC-315 that "if an order passed without jurisdiction, the same would be a nullity. It will be a coram non judice. It is non est in the eye of law". 16. Thus, even if a non est order not challenged, the same will not be binding upon the parties. Under the said circumstance, only on the basis of Annexure-'C', respondent no.5 and 6 cannot claim entire compensation amount, specially when Annexure-A, filed by them shows that entire lands pertaining to khata no.49 are jointly recorded in the names of their ancestors as well as ancestors of petitioners. It is also an admitted position that all the awards are in the joint name of Mani Ohdar Bedia, Bhodu Bedia and Bedesiya Bedia. Thus, descendants of Bidesiya Bedia (petitioner ) are also entitled to receive compensation amount. In that view of the matter, the main dispute between the parties is with regard to apportionment of compensation amount, which, according to section 3H(4) of the Act, can be resolved only by a competent Civil Court. 17. In view of the aforesaid discussions, I allow this writ application and quash Annexure-5. Respondent no.3, who is competent authority under the National Highways Act, is directed to refer the dispute between the petitioners and respondent nos. 5 and 6 to a competent Civil Court for adjudication with regard to apportionment of compensation amount between the parties within four weeks from the date of receipt and/or production of this order. It appears that vide order dated 18.06.2013 this Court has directed the respondents to maintain status quo, with regard to payment and disbursement of the awarded amount in pursuance of L.A. Case no. 01/2010-11. It appears that vide order dated 18.06.2013 this Court has directed the respondents to maintain status quo, with regard to payment and disbursement of the awarded amount in pursuance of L.A. Case no. 01/2010-11. Under the said circumstance, respondent no.3 is further directed to deposit the awarded amount in a Nationalised Bank together with statutory interest, so that the same can be given to either of the parties as per direction of the Civil Court. The Civil Court is further directed to adjudicate the dispute between the parties at the earliest preferably within one year from the date of receipt of reference.