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2018 DIGILAW 1928 (ALL)

VIRENDRA SINGH v. UNION OF INDIA

2018-09-06

A.P.SAHI, BACHCHOO LAL

body2018
JUDGMENT By the Court.—Heard Sri R.C.Gupta, learned Counsel for the petitioner and Sri Ashok Kumar Singh for the respondent No. 5, Sri Rajnish Rai for the respondent Nos. 1 and 3 and learned Standing Counsel for the respondent Nos. 2 and 4. 2. This dispute has been raised by the petitioner against his own brother seeking payment of compensation in respect of land which has been acquired for the construction of the Eastern Dedicated Front Corridor of the Railways under the Railways Act, 1989. 3. Under the impugned order dated 27th of August, 2018 passed by the respondent No. 2 Competent Authority the dispute has been decided in favour of the 5th respondent keeping in view the sale-deed and the recital contained therein dated 13.5.1991 as well as the spot inspection memo which was prepared in order to resolve the bone of contention between the parties. 4. The dispute relates to that portion of land which is numbered as 226 M area 1.290 Hect. of khata No. 386. Half portion of this land belongs to the petitioner and half of it was transferred by him through the sale-deed dated 13th May, 1991 in favour of his brother the respondent No. 5. This fact is clearly admitted to the petitioner in his writ petition that this sale-deed was executed in order to sort out the differences and to settle the final shares of inheritance from the father of the petitioner. We are not narrating these preceding facts but since the sale-deed dated 13.5.1991 remains undisputed, therefore the fact remains that there is no denial of what has been recited in the sale-deed dated 13.5.1991 and is a clear admission on the part of the petitioner. It is well-settled under the law of evidence that an admission is the best piece of evidence. 5. The sale-deed dated 13.5.1991 categorically recites the boundaries of that portion of land being Plot No. 226M which was transferred by a registered sale-deed to the respondent No. 5 by the petitioner. The boundary is categorically described that it is the western portion of the above plot adjoining the land of the purchaser which was being transferred to the respondent No. 5. 6. The boundary is categorically described that it is the western portion of the above plot adjoining the land of the purchaser which was being transferred to the respondent No. 5. 6. Learned counsel Sri Gupta submits that while describing the western portion it has been stated in the sale-deed that this was west of what had been purchased under a deal by the petitioner from his father earlier. This argument is absolutely incorrect keeping in view the fact that the dispute of partition arose after the death of the father and it is on this that the petitioner executed the sale-deed dated 13.5.1991 in favour of the respondent No. 5 thereby transferring half of the share of the western portion of that plot adjoining the land of the purchaser, namely the respondent No. 5. Thus the specific demarcated area which was transferred stood apportioned over which the petitioner relinquished all his rights in favour of the respondent No. 5. The sale-deed is still intact and remains undisputed. 7. For the purpose of determining compensation a spot inspection memo was prepared. This the petitioner contends was behind his back and has tried to dispute the same. We have gone through the said inspection memo report which is annexure 7 to the writ petition and we find it to be in perfect conformity with the recital of boundary contained in the sale-deed dated 13.5.1991 which has not been disputed either in its contents or in respect of the boundaries mentioned therein. Consequentially the spot inspection report is neither incorrect nor can it be discarded as suggested by the learned counsel for the petitioner. 8. The transfer under the sale-deed dated 13.5.1991 with possession was effected in 1991 itself and it is after 26 years of the said transaction that the acquisition relating to that portion of the land has taken place. The petitioner for the past 26 years does not appear to have raised any dispute either about the possession or the title of the respondent No. 5 over the western portion of the said plot as demarcated in the sale-deed itself. 9. The petitioner for the past 26 years does not appear to have raised any dispute either about the possession or the title of the respondent No. 5 over the western portion of the said plot as demarcated in the sale-deed itself. 9. It appears that since there was no formal division of the holding in terms of the provisions of Section 176 of the then U.P.Z.A. and L.R Act 1950, the petitioner taking advantage of such division not having been made, as an after thought filed the objection on the present acquisition and has narrated his claim on that basis before this Court that he continues to be owner of every inch of an unpartitioned land. 10. In our considered opinion even if the division of the holding had not taken place in terms of the provisions of the U.P.Z.A. and L.R. Act 1950 yet the right of the petitioner stood extinguished from that portion of the land which he has transferred under the sale-deed dated 13.5.1991 and which remains undisputed. It was a voluntary relinquishment with due consideration having passed on. Consequentially any compensation in relation to that portion of the land demarcated in the sale-deed cannot be claimed by the petitioner as a matter of right. The said portion of land is the same land which has been acquired of which the compensation was to be paid to the respondent No. 5. 11. In the given circumstances what we find is that the petitioner has had a change of heart as indicated above against his own brother and filed the objection which has been decided by the competent authority. 12. The next argument of Sri Gupta is that the competent authority was not empowered to entertain this dispute keeping in view the provisions of sub-section (4) of Section 20-H of the Railways Act 1989. He contends that this was a matter of apportionment and therefore the competent authority ought to have referred the dispute to the Civil Court. Such similar matters have been entertained by this Court and therefore the present writ petition also deserves to be entertained. He has relied on the judgment of the Gujrat High Court in the case of Kikabhai Dhanjibhai Patek v. Competent Authority and Special Land Acquisition Officer and others, Special Civil Application No. 15718 of 2014 dated 28.9.2015 to advance his submissions. He has relied on the judgment of the Gujrat High Court in the case of Kikabhai Dhanjibhai Patek v. Competent Authority and Special Land Acquisition Officer and others, Special Civil Application No. 15718 of 2014 dated 28.9.2015 to advance his submissions. He has invited the attention of Court to paragraph 11 of the said judgment to contend that all questions pertaining to apportionment would be subject-matter of reference to Civil Court where such a dispute arises. 13. There cannot be any dispute about the said proposition of law inasmuch as if it is a case of apportionment as per the sub-section (4) of Section 20-H of the 1989 Act then of course the matter has to be referred to the Civil Court but in the present case this is not a matter of apportionment at all. 14. The legislature has clearly used the word entitlement empowering the competent authority to decide the award of compensation. This intention can be easily gathered from the object and purpose from the special provisions of acquisition under the 1989 Act to keep it away from the rigors of prolonged litigation. The word entitlement means a rightful claim and correspondingly the right of a person to receive what he is entitled. On the other hand apportionment is parceling out proportion of shares of the compensation to which one may be found entitled to receive. Apportionment is therefore, distribution after entitlement is determined and is an arrangement of disbursement of shares to which the provisions of sub-section (4) of Section 20 -H may apply. In such circumstances the petitioner in the present case after having executed the sale-deed which was registered on 13.5.1991 had no right, title or interest surviving in the land demarcated in the sale-deed itself and therefore applying the principle of admission, estopple and acquiescence by his own conduct, the petitioner cannot now turn around and claim compensation in respect of that portion of the land which has exclusively fallen into the share of the respondent No. 5 by virtue of the sale-deed dated 13.5.1991. 15. It is not a question of apportionment inasmuch as the petitioner as observed above has already severed his rights after having executed the sale-deed with possession of the specified area with boundaries in favour of his brother way back on 13th May, 1991. This was therefore not a question of apportionment. 15. It is not a question of apportionment inasmuch as the petitioner as observed above has already severed his rights after having executed the sale-deed with possession of the specified area with boundaries in favour of his brother way back on 13th May, 1991. This was therefore not a question of apportionment. The issue of entitlement is governed as rightly pointed out by the learned counsel for the Railways under Sub-section (2) and Sub-section (3) of Section 20-H where it is the competent Authority which is empowered to decide such disputes. The Railways Act 1989 therefore is a code in respect of any such dispute and the powers of the Civil Court are also available to the competent authority while deciding the same. Consequently in our opinion the impugned order of the competent authority does not suffer from any infirmity or perversity or illegality so as to warrant any interference under Article 226 of the constitution on the facts of the present case. The competent authority however has to be careful as there is another dimension in such matters. The question of entitlement has to arise from a genuine and a prima facie bona fide case. 16. This issue in a matter of apportionment under Section 30 of the Land Acquisition Act, 1894 has been very clearly dealt with by a Division Bench of our Court in the case of Vishnu Pratap Singh v. State of U.P. and others, 1993 (1) AWC 515 , where the Division Bench while discussing the ratio of the judgment in the case of Dr. G.H. Grant v. State of Bihar, AIR 1966 SC 237 , has held that where a right to receive compensation has extinguished, and does not exist at the time of the award then a reference cannot be claimed as a matter of right under Section 30 of the Act and the Collector is not bound to refer the dispute, which power is discretionary. 17. In the State of U.P., the law of land tenures particularly agricultural land is now governed by the provisions of U.P. Revenue Code 2006 read with 2016 Rules framed thereunder, the post cursor of the earlier law under the 1950 Act. Division of holdings have to be carried out in terms of the said act for being legally recognZed. 17. In the State of U.P., the law of land tenures particularly agricultural land is now governed by the provisions of U.P. Revenue Code 2006 read with 2016 Rules framed thereunder, the post cursor of the earlier law under the 1950 Act. Division of holdings have to be carried out in terms of the said act for being legally recognZed. This is in order to avoid any undue advantage to any co-sharer from claiming a particular share which can be done only as per Section 116 of the 2006 Code read with 2016 Rules 107 and 108 thereof. The competent authority in matters of award of compensation therefore has to be careful in not being trapped on fake claims but on the other hand it has also to take into account the correct position of law and the facts of a case. Disputes generally do occur between co-sharers which are pending before revenue Court. Claims of title are adjudicated one way or the other, and therefore, the rights of such tenure holders also deserve to be protected. It may be worth mentioning that at times, the names of co-sharers are not recorded in the revenue records but they are otherwise rightful claimants of a particular share. This takes place where there is a large cotenancy in an ancestral property and the issue of succession is involved. The competent authority therefore should not overlook these aspects of the matter but that is not the case here. 18. It needs to be clarified that in the case of Kikabhai Dhanjibhai Patek (supra) the Gujarat High Court has ruled that Sub-Section (4) of Section 20-H of 1989 Act takes within its sweep not only the question of apportionment but the very right of a person to seek any apportionment being a person interested in the compensation. We have come across another judgment of the Madhya Pradesh High Court in the case of Gaya Prasad Mishra v. State of M.P. in Writ Petition No. 13850 of 2014 decided on 22nd April, 2015 wherein while considering the provisions of National Highways Act, 1956 which are pari materia with the 1989 Act involved herein, it was held that the question as to whether any division or partition took place between the parties by consent and whether the partition was proper or not or the petitioner acquired rights by purchase etc. were disputed questions that were required to be referred to the principal Court of civil jurisdiction who would be the appropriate authority to adjudicate the same and then direct for apportionment of the compensation. The aforesaid judgment of the Madhya Pradesh High Court went up in appeal before the Apex Court in Special Leave to Appeal No. 21301 of 2015 and the SLP was dismissed as no ground for interference was made out on 7.12.2015. We have also come across another Division Bench judgment of this Court in the case of Omvir Singh and others v. State of U.P., 2004 (1) AWC 897 , where also a reference under Section 30 of the Land Acquisition Act 1894 on an issue as to whether the share was half or 1/3rd was found to be a referable dispute. 19. The aforesaid decisions would not be applicable on the facts of the present controversy, and even otherwise, the judgment in the case of Omvir Singh (supra) does not appear to have answered the issue about the bar contained for the filing of a suit either under the U.P. Revenue Code 2006 or under Section 49 of the U.P. Consolidation of Holdings Act 1953 that govern the law of land tenures and final rights of settlement of agricultural holdings. There may be issues arising out of residential property situate over abadi land or other classes of land either in urban areas or rural areas where disputes may have arisen and decided through Courts of competent jurisdiction. The issue of resjudicata and the binding effect thereof will also have to be examined in an appropriate case for the reason that any special enactment of acquisition and compensation will have to be considered in the light of public policy also as to whether an issue previously decided or a decision rendered by a competent Court whereafter a suit may be barred under the statute, will it be in the interest of litigative pursuit to allow a fresh round of litigation on the issue of entitlement even if the claim has been decided earlier. We leave these issues open to be dealt with in some other case as on the facts of the present case we do not find any cause for interference under Article 226 of the Constitution of India. 20. We leave these issues open to be dealt with in some other case as on the facts of the present case we do not find any cause for interference under Article 226 of the Constitution of India. 20. As already discussed hereinabove the present is a clear case where the petitioner did not have any right over the land once it had been transferred by him in 1991 through a registered sale-deed specifying the boundaries and the share in the sale-deed itself. There is no ambiguity to be resolved. The compensation, therefore, has to be apportioned accordingly and which rightly appears to have been done by the competent authority. This was therefore not a case by any means of a reference to a Civil Court for cosmetic purposes. 21. Learned Counsel for the petitioner has quoted the interim orders passed in paragraph Nos. 21, 22 and 23 of the writ petition. It is settled law that interim orders are not precedents but even otherwise on a perusal of the said interim orders we do not find any such consideration of the provisions in the manner in which we have analyzed the same herein above. Consequently there is no occasion for us to follow the said interim orders for the purpose of entertaining the writ petition. For all the above reasons there is no merit in the writ petition, the same is dismissed in so far as the present dispute is concerned. The dismissal of this writ petition will however not deprive the petitioner to claim any other entitlement of compensation which he may be entitled to receive in accordance with the law.