CR No.2084 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.2084 of 2006
Date of Decision: 27.8.2008
Smt.Parwati & Anr. ..Petitioners
Vs.
The State of Haryana & Anr. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.R.A.Yadav, Advocate,
for the petitioners.
Mr.R.D.Sharam, DAG, Haryana,
for the respondents.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J.
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
CR No.2084 of 2006 2
compensation was ordered to be dismissed.
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.
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.
The petitioners, however, did not file any reference under
section 18 of the Act.
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.
CR No.2084 of 2006 3
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.
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.
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.
CR No.2084 of 2006 4Moreover, 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. Teja Singh and Ors 1981
PLJ 41.
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
CR No.2084 of 2006 5way 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
CR No.2084 of 2006 6fore 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.”
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.
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.”
However, learned Deputy Advocate General, Haryana on the
other hand placed reliance on the judgment of Hon’ble Supreme Court in the
CR No.2084 of 2006 7
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. 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
CR No.2084 of 2006 8contemplated 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.”
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.
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
CR No.2084 of 2006 9reference 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.
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.
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,
CR No.2084 of 2006 10the shares were not specified.
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.
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).
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.
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
CR No.2084 of 2006 11compensation 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. 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
CR No.2084 of 2006 12pursuant 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.
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
CR No.2084 of 2006 13compulsorily 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
CR No.2084 of 2006 1467 : (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
CR No.2084 of 2006 15brothers 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 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.”
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
CR No.2084 of 2006 16
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.
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.
27.8. 2008 (Vinod K.Sharma) rp Judge