AI Structured Summary
Not yet generated for this judgment
Judgment
Sandeep Sharma, J.
Being aggrieved and dissatisfied with order dated 16.5.2018, passed by learned Additional District Judge, Kullu, Himachal Pradesh in Execution
Petition No. 57/2017 titled Lesru Ram since deceased through Legal Heirs (a) kalu Devi etc. vs. Collector Land Acquisition etc., whereby the learned
Executing Court has allowed the objections having been filed by the respondent No.1 (JD No.1 before the learned executing Court) consequently
dismissing the Execution Petition filed by the petitioners/Award Holders, petitioners have approached this Court by way of instant Revision Petition
under Section 115 of the Code of Civil Procedure, praying therein for setting aside the impugned order dated 16.5.2018.
Facts as emerge from the record are that the petitioners filed an Execution Petition before the learned Court below, seeking therein directions to the
respondents to pay them enhanced compensation with respect to land.
JD No.1, while refuting the claim set up in the Execution Petition, filed objections averring therein that the petition having been filed by the Award
Holders, seeking therein enhancement of compensation qua the estate of Chet Ram is not maintainable. Judgment Debtor No.1 claimed before the
learned Executing Court that Chet Ram had not filed any reference petition under Section 18 of the Land Acquisition Act (hereinafter, referred to as
‘Act’) nor filed an application under Section 28A of the Act and as such, after passing of the Award, present application for enhancement of
amount of compensation is not maintainable. Judgment Debtor No. 1 also claimed that Chet Ram or his legal heirs could not seek enhancement of
compensation qua his share on the basis of reference made by other co-owner by filing execution petition under Order XXI Rule 11(2) of the Code of
Civil Procedure.
I have heard the learned counsel for the parties and gone through the record carefully.
Having heard the learned counsel for the parties and carefully perused the material available on record, this court finds that there is no dispute with
regard to joint ownership, if any, of Chet Ram as well as co -sharers, who have already received amount on account of enhancement made by learned
Additional District Judge vide award in Reference Petition No. 170 of 2007.
Mr. Sunil Mohan Goel, learned counsel representing Award Holders vehemently argued that the Award holders are/were well within their right to
approach the learned Executing Court by way of application under Section 146 of the Code of Civil Procedure, seeking enhancement of compensation
on the basis of award passed by learned Additional District Judge in the reference petition filed by other coâ€"owners qua the same land.
Mr. C.N. Singh, learned counsel representing Judgment Debtor, on the request of this Court, has put in appearance on behalf of respondent No.1.
Mr. C.N. Singh, learned counsel representing the respondent No.1, was unable to point out any document available on record suggestive of the fact
that order dated 5.4.2016 passed by learned Additional District Judge, Kullu, HP, in GW Act No. 01/2015 titled Smt. Shiv Dassi vs. G.P. was even put
to challenge by any person, who claims himself/herself to be the legal heir of Chet Ram. It is not in dispute that vide order dated 5.4.2016, learned
Additional District Judge, Kullu, appointed Smt. Shiv Dassi, wife of late Fateh Ram, as Guardian/Manager qua movable and immovable property of
her son i.e. Chet Ram, and categorically held that she being Manager of the property of her son, Chet Ram, is empowered to apply for transfer or
release of any amount deposited in any court or with other authorities for the acquisition of land of Chet Ram and transfer same in the bank account
of Chet Ram. It is also not in dispute that aforesaid order has attained finality as none of the parties including respondents laid challenge, if any, to the
same.
It also emerges from the record that Shiv Dassi being legal guardian of lunatic Chet Ram, had filed a reference petition before appropriate court of
law, which ultimately came to be decided on 5.6.2010. Shiv Dassi being guardian of Chet Ram also filed an RFA before this Court, which was
allowed vide judgment dated 22.10.2016.
The question, whether a co-owner can seek enhancement of compensation qua the acquisition of land in Execution proceedings, without having
filed Reference Petition under Section 18 of the Act, stands duly answered by this Court in Dinesh Kumar & Ors. v. State of Himachal Pradesh &
Anr. AIR 2012 HP 68, wherein it has been specifically held that coâ€"owner cannot be denied the enhanced amount of compensation on the basis of
award under Section 28A of the Act, even if he/she had not filed claim petition before the court. It would be profitable to extract para Nos. 5 to 9 of
the aforesaid judgment here-in-below.
“5. The prayer for enhanced compensation and interest etc. has been declined by the learned Reference Court mainly on the ground that as the
petitioners did not come forward for re-determination of the amount of compensation on the basis of the award of the court dated 05.11.2007,
Annexure P-2, under Section 28-A of the Act, they were precluded from laying claim for enhanced compensation and interest etc. under Section 146
CPC.
I have heard the learned counsel for the petitioners and the learned Deputy Advocate General with the learned Assistant Advocate General for the
respondents and gone through the records.
I have no hesitation to say at the very outset that the learned Reference Court has not addressed the issue involved in the matter in the right
perspective even despite the fact that the law laid down by the Hon’ble Supreme Court in A. Viswanatha Pillai & others v. The Special Tahsildar
for Land Acquisition No. IV and others .(1991) 4 Supreme Court Cases 17:(AIR 1991 SC 1966) and Jalandhar Improvement Trust vs. State of
Punjab and others. AIR 2003 Supreme Court 620, was brought to its notice on behalf of the petitioners who relief upon the same in support of their
claim.
In the case of A. Viswanatha Pillai & others, supra, the Hon’ble Supreme Court has held as under vide the relevant portion of para 2 of the
report:
“2………. 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. 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 ¼ 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.â€
Thus, it is more than clear that even a co-sharer who has not sought reference to the court is entitled for enhanced compensation pro-rata in
accordance with his share in the acquired land.â€
Reliance is also placed on Judgment passed by the Hon’ble Apex Court in V. Viswanatha Pillai and others v. Special Tahsildar for Land
Acquisition No. IV and others AIR 1991 SC 1966, wherein it has been held 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 are 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 the Venkatachalam indisputably he mentioned that the
acquired property be- longed 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. Undoubted 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 the 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 section 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 are 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 Teke 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. But as regards the persons entitled to receive compensation are concerned
it has no role to play. It is for the claimants inter se to lay the claim for compensation and the court would examine and award the compensation to the
rightful person.
As seen in the objections pursuant to the notice under section 9(3) and 10, Venkatchalam made necessary averments that himself and his brothers had
1/4 share in the Anicut and irrigation system pursuant to the partition deed referred to therein. In his reference application under section 18 also he
reiterated the same and stated that the amount awarded by the Collector was in adequate and that they were dissatis- fied with it and that they are
entitled to more. It is settled law that one of the co-owners 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 coparcenery under Hindu Law by all the coparceners. In Kanta
Goel v.B.P. Pathak & Ors,. [1977] 3 S.C.R. 4 12, 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 & Ors., [1977]1 S.C.R. 395 and
Pal Singh v. Sunder Singh (dead) by Lrs. & Ors., [1989] 1 S.C.R. 67. 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 Tekes 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 therein 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 & Ors. v. Union of India & Ors., [1991] 1 SCR 649 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-owner 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 coparcen- ers 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. 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 Courtâ€. AIR 2003 Supreme Court Cases 620 case
titled as Jalandhar Improvement Trust v State of Punjab and others.â€
It is apparent from the aforesaid exposition of law laid down by the Hon’ble Apex Court as well as this Court that co-owners, who have/had
not sought reference under Section 18 of the Act, are also entitled to enhanced compensation on pro-rata basis as per their shares. In the instant case,
it is not in dispute that co-owners of Award Holders had filed petition under Section 18 of the Land Acquisition Act and in those proceedings amount
of compensation awarded by the Land Acquisition Collector was enhanced and as such Award Holders being co-owners qua the land acquired by the
respondent No.1.
Though this court has already held herein-above that the co-owners, who have/had not sought reference under Section 18 of the Act, are also
entitled to enhanced compensation on pro-rata basis as per their shares, but careful perusal of the material available on record, especially impugned
order passed by learned Court below, clearly reveals that the learned Additional District Judge, Kullu, while passing impugned order, has miserably
failed to appreciate the facts of the case and has not even bothered to take into consideration the law laid down by this court in Dinesh Kumar (supra),
wherein it has been categorically held that co-owners can not be denied enhanced compensation on the ground that they did not come forward for re-
determination of the amount of compensation on the basis of Award of the court under Section 28-A of the Act ibid. Leaving it aside, this court finds
that the learned Presiding Officer had been passing contradictory orders on the issue at hand, because in the identical case having been decided by
him i.e. Execution Petition No. 13 of 017, titled Pune Ram (deceased) vs. LAC and others, he held that the claim for enhanced compensation of the
acquired land jointly owned by parties, can not be denied on the ground that co-owner had not filed an independent reference under Section 18 of the
Act.
Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, the order dated
16.5.2018, passed by learned Additional District Judge, Kullu, Himachal Pradesh in Execution Petition No. 57/2017 titled Lesru Ram since deceased
through Legal Heirs (a) kalu Devi etc. vs. Collector Land Acquisition etc., deserves to be set aside being against the aforesaid exposition of law.
Accordingly, the present petition is allowed. Order dated 16.5.2018, passed by learned Additional District Judge, Kullu, Himachal Pradesh in
Execution Petition No. 57/2017 is set aside and quashed. Executing Court is directed to proceed further in accordance with law.
Pending applications, if any, are disposed of.