JUDGMENT
D.P. Wadhwa, J.
(1) These are two appeals both filed under: section 54 of the Land Acquisition Act, 1894 (for short ‘the Act’) against a common judgment dated 14 February 1969 of the learned Additional District Judge (A.D.J.). The A.D.J. had given his judgment on a reference made to him under sections 30 and 31 of the Act. This was done by the Award No. 1426 dated 28 November 1962 of the Land Acquisition Collector I, Delhi (‘Collector’ for short). The A.D.J. said that appellants in both the appeals shall be entitled to 50% of the amount of compensation awarded by the Collector in his aforesaid award, and rest of the amount of compensation, he said, would be sent back to the Collector.
(2) A chunk of land in village Rajpur Chhawni, Delhi, was notified to be acquired under section 4 of the Act. After necessary declaration and notifications under the Act the Award No. 1426 was made on 28 November 1962. The Collector arrived at a particular figure of compensation which in his opinion was to be allowed for the acquired land. In respect of the lands of the appellants the Collector found that they were old tenants on the Government land and yet claimed that whole of the compensation be paid to them and none to the Government though it was the Government who was shown as owner in the revenue records. The appellants had said they were actually the owners. The Collector, however, found that the appellants gave no documents to support their claim of ownership or even as to how they became tenants and if so what was the condition of the lease. From the revenue records the Collector found that they were paying some rent to the Government and the land revenue. The appellants also said that they had let out their land to different tenants and as per their lease deed the appellants were entitled to compensation. One Chhaju Singh claimed sub-tenant of appellant Ratan Singh (RFA 389/69) in 11 bighas and 11 biswas of land. He rather said the whole of the compensation be paid to him. The Collector, therefore, observed that the point regarding the apportionment of compensation between the owners, tenants and sub-tenants was rather tortuous and depended upon several factors and he said he was not in a position to make the correct apportionment regarding that land. The compensation of the land, therefore, he sent to the District Judge for apportionment. In the appeal of Ratan Singh (RFA 389/ 69) we are not concerned with the amount of compensation arrived at by the Collector or the apportionment of that between the appellant and their sub-tenants as it was stated before us that their dispute inter-se has been mutually settled by them among themselves. The appellant Surat Singh (RFA 397/69) said he was a hereditary occupancy tenant on the land and he alone was entitled to the amount. Similarly, Ratan Singh (RFA 389/69) also claimed whole of the amount of compensation. Respondent Union of India denied their claims and rather said none of the appellants was entitled to any compensation. It was denied that they were occupancy tenants.
(3) On the pleadings of the parties, the A.D.J. framed the following issues :- RFA389/69: 1. (a) Was Rattan Singh an occupancy tenant in the acquired land covered by item No. 25 and 26 under the Union of India ? (b) If so what may be fair and reasonable apportionment between Uoi and Rattan Singh ? 2. What may be the fair and reasonable apportionment of compensation as between Rattan Singh and Chajju ? Rfa 397/69: 1. Was Surat Singh perpetual lessee in the acquired land ? If so, to what share in compensation is he entitled ? 2. Are Girdhari Lal and Sadha Singh transferee of the rights of Surat Singh and as such entitled to compensation to the exclusion of Surat Singh? 3. If issue No.2 be decided against Girdhari Lal and Sadha Singh to what share in compensation are . they entitled out of the compensation admissible to Surat Singh ?
(4) As noted above, issue No.2 in Rfa 389/69 and issues 2 and 3 in Rfa 397/69 do not fall for consideration. The A.D.J. held that though as per revenue records the appellants are in possession of the land since 1880 through their predecessors-in-interest but not as tenants and only as sapurdars (managers). He said that though there was no doubt that in subsequent jamabandis the appellants had been shown as non-occupancy tenants yet it was clear from the history as to how their predecessors-in-interest entered into possession and that they entered into possession merely for the management of the property and not as tenants. The A.D.J, therefore, held that the appellants could not become occupancy tenants under any of the provisions of the Punjab Tenancy Act, 1887. The A.D.J. nevertheless held that though the appellants were not occupancy tenants that would not mean that they were not entitled to any compensation, whatsoever. He said since they were in possession of the land since 1880 and there was no possibility of their eviction there from, these circumstances clothed them with a right to receive some share in.compensation. The A.D.J. held that it could easily be said that appellants’ share must be about 50% in the compensation.
(5) Aggrieved from the judgment of the A.D.J. the appellants preferred these appeals. They say that the A.D.J. had not properly construed the documents on record and that they were owners in. possession and in any case they were occupancy tenants. They say their ancestors had been paying rent to the Government and agreed to its increase as well. They say the A.D.J. erred in holding that whatever payment the ancestors of the appellants were- paying was more towards malkhana being the sapurdars (managers) of the land arid it was not the rent which they were paying. Appellants then say that if their ancestors were mere managers then they should have been paid something for managing the land and it was not for them to pay anything to the Government. They say the very fact that they were in long and continuous possession of the land as tenants and considering all the relevant circumstances they were in any case occupancy tenants and were protected under the provisions of the Punjab Tenancy Act. The appellants also say there was no reason for the A.D.J. not to rely upon the jamabandis of a later period wherein the appellants had been shown in occupation- of the land in their capacity as tenants of the Government. The appellants also say that since land revenue was payable by them and their ancestors to the Government as per documents on record their right as sapurdars was even much superior to that of their being occupancy tenants and they were entitled to whole of the compensation as assessed by the Collector. Lastly, the appellants say that there was no question of the interest of the Government in the land being acquired under the Act as the Government could not acquire its own rights, and that it was only the interest of the appellant that had been acquired and for which compensation had been assessed by the Collector. Reference was made to various provisions of the Act to. contend that the appellants were entitled to whole of, the compensation and in any case in their capacity as occupancy tenants they were entitled to 87% of the compensation so assessed. For this the appellants relied on a decision of another Additional District Judge Mr. J.D.Jain in his judgment dated 5 May 1973. It so happened that some piece of land which was also the subject-matter of same very notification under section 4 of the Act along with the land in the present appeals and which also belonged to the appellants in the same right, a separate award at a later date was made where also the Collector referred the disputes for disbursement/apportionment under section 30/31 of the Act to the District Judge. The issues were same as in the present appeals and the judgment of Mr. J.D Jain, Additional District Judge, is dated 5May 1973. In this on the same very facts Mr.Jain held that the appellants were occupancy tenants and entitled to 87% share in the compensation as assessed by the Collector.
(6) Mr. Ramesh Chandra referred to certain provisions of the Act to contend that the Government had no locus standi in the matter and that under the Act only the interest of the appellants could have been acquired for which the compensation had been fixed by the Collector in his award and that the Government was not the person interested and as such whole of the compensation should have been paid to the appellants. Under clause (a) of section 3, the expression “land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Then under clause (b), the expression “person interested” includes all persons claiming an interest in compensation to be made. on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. Under section 11, the Collector is to make the award specifying the true area of the land acquired, the compensation which in his opinion should be allowed for the land, and the apportionment of the said compensation among all the persons known or believed to be interested in the land. Section 12 attaches finality to the award so made subject to, of course, other provisions of the Act. Section 21 says that the scope of the enquiry in every such proceedings shall be restricted to a consideration of the interests of the persons affected by the objection. Then under section 23 matters have been prescribed which are to be taken into consideration by the court in determining compensation. Section 25 provides that the amount of compensation arrived at by the court shall not be less than the amount awarded by the Collector under section 11. Then we come to section 30 and section 31 which deal with the dispute as to apportionment and payment of compensation. Under section 31 when the amount of compensation has been settled under section 11 and if any dispute arises as to the apportionment of,the same or any part thereof or as to the persons to whom the same or part thereof is payable the Collector may refer such dispute to the decision of the court. It is not disputed that the Collector had the power to refer the dispute in the present case to the court of the District Judge. Section 31 which is under Part V of the Act dealing with Payment is to the effect that on making the award the Collector shall tender payment of the compensation to the persons interested entitled thereto according to the award. Otherwise the amount of compensation has to be deposited in the court to which a reference under section 18 of the Act would be submitted. It is true that what belongs to the Government cannot be acquired, but then the definition of the word “land” is compendious and may include anything.
(7) In The Government of Bombay v. Esufali Salebhai, 1910 2nd (Vol.XXXlV) Bombay 618, it has been observed that the word “land” in section 3 of the Act is not exhaustive and that the use of the inclusive verb “includes” shows that the legislature intended to lump together in one single expression – viz., “land” – several things or particulars, such as the soil, the buildings on it, any charges on it, and other interests in it, all of which have a separate existence and are capable of being dealt with either in a mass or separately as the exigencies of each case arising under the Act may require.
(8) Government is, thus, not debarred from acquiring and paying for only outstanding interest. It is correct that the Act does not contemplate or provide for the acquisition of any interest, which already belongs to Government in land which is being acquired under the Act, but only for the acquisition of such interests in the land as do not already belong to the Government. But when in the land to be acquired under .the Act persons claiming interest therein deny the very title of the Government and stake their claim for themselves to whole of the compensation on that basis, the Collector is to determine for the purpose of fixing the compensation the value of all the interests put in the land and then that value has to be split as per varying interests. The words “person interested” as used in the Act mean any person claiming interest in compensation. Here the Collector has fixed compensation which in his opinion should be allowed for the land and the Government is claiming interest in that compensation and is thus a person interested having locus standi in the matter.
(9) In Rajah of Pittapuram v. The Revenue Divisional Officer, Cocanada, Godavari Dist., Air 1919 Madras 222(2)(DB), it was held that where occupancy or other rights are claimed in land notified to be acquired under the Act, the correct rule to be observed is to value the land in the first instance, including all interests in it, and to apportion the amount so ascertained among the parties interested according to their interests. The difference between the market-value and the value of the tenant’s interest represented the landlord’s interest.
(10) In T.B.Ramachandra Rao and another v. A.N.S. Ramachandra Rao and others, 26 Cwn 713 (PC), it was observed that the “award” as constituted by the Act is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment amongst persons whose interests are not in dispute. A dispute between interested people as to the extent of their interest forms no part of the “award”.
(11) Section 18 provides for reference to the court to assess compensation, while under section 30 the court is to apportion the compensation. These are two separate proceedings. In Rajah of Pittapuram (supra) it has been held that the value of land acquired under the Act should ordinarily be determined as awhole, and the question of apportionment of the compensation awarded amongst claimants of different degrees should thereafter be taken into consideration. There is no fixed principle laid regarding the apportionment of compensation. The Collector under section 11 enquires into the value of the land and into the respective interests of the persons claiming the compensation and after awarding the sum for compensation he has to apportion the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information. Apportionment is not a mere division but division in the proportion of the interests of the parties concerned.
(12) Ln Manmohan Dutt v.Collector of Chittagong, 2nd 1912 (Vol.XL) Calcutta 64 (DB), it was observed that in assessing the amount of compensation due to the landlord, regard must be had to the question of how much the landlord was actually Realizing from the land. It was held that Government, in its capacity as landlord, was entitled as usual to a capitalisation of as much rent as may be found to be payable in respect of the proportion of the holding that was taken. It was also observed that Government was not entitled in law to a higher proportion on the ground that in similar cases it had frequently received a higher proportion either by consent of the parties or otherwise.
(13) In Inder Singh and four others v. Ram Samp, 2nd (1973) Ii Delhi 78 (DB), this Court observed that in the case of reference under section 30 of the Act the reference might be made-either on an application by a person interested or by the Collector suo motu.
(14) In Dr. G.H. Grant v. The State of Bihar, , the Court observed that section 30 of the Act authorised the Collector to refer to the court after compensation settled under section 11 any dispute arising as to apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof was payable. It also held that the Collector under section 30 was not enjoined to make a reference and he might relegate the person raising a dispute as to apportionment, or as to the person to whom compensation was payable, to agitate the dispute in a suit -and pay the compensation in the manner declared by his award.
(15) The A.D.J. in the second case arising out of award No. 1552 referred to the Naksha Muntazmin received from the Collector along with the reference wherein the Government had been recorded as a owner while the appellants had been shown as no ccupancy tenants. He also found that from the excerpts prepared by Sadar Qanungo from the revenue records commencing from 1892-93 it was shown that the appellants had been in cultivatory possession of the land since the time of their ancestors, and since 1948-49 they had been shown to be non-occupancy tenants. The A.D.J. was, thus, of the view that claims had been throughout recorded as non-occupancy tenants and that their liability to pay rent was limited to the land revenue payable by the land owners only. In other words, it was held that the claimants had not to pay to the Government any lease money or rent over and above the land revenue, and that under these circumstances the claimants must be recorded as occupancy tenants under section 5 of the Punjab Tenancy Act rather than non-occupancy tenants. The A.D.J., therefore, held the claimants to be occupancy tenants, and as regards their share in compensation the A.D.J. held that claim of 87% share was in accord with the large number of decided cases in which occupancy tenants had been held to been titled to 87% share in the whole compensation in respect of any piece of land. The learned A.D.J. in that case was also of the view that claim of the claimants appeared to be quite reasonable because an occupancy tenant under section 5 of the Punjab Tenancy Act was a owner for all intents and purposes and the landlord was entitled to only nominal interest in the land in the occupation of the occupancy tenant. He, therefore, held that claimants were entitled to 87% share in the amount received and the remaining 13% pay able to the Government of India. We are told that the Government of India did not prefer any appeal against this judgment of the court arising of award No. 1552, We find reasoning of the A.D.J. in the apportionment proceedings arising out of this award No. 1552 quite correct. Under sub-section (2) of section 5 of the Punjab Tenancy Act if a tenant proves that he has continuously been occupying land for 30 years and paid no rent therefore beyond the amount of land revenue thereof and the rates and cesses for the time being chargeable thereon it may be presumed that he has fulfillled clause (a) of subsection (1) of section 5, and has, thus, a right to land so occupied.
(16) We have, however, not been shown any judgment giving 87% share in compensation to occupancy tenants, and in Hanuman Pershad etc. v. Chuni alias Chuni Lal & others, 2nd (1977) Ii Delhi 687, a Bench of this Court observed that a occupancy tenant had been .awarded as much as 80% of the compensation in apportionment proceedings. We would, therefore, limit the appellants to their share at that rate.
(17) It was contended by Mr. Mathur; learned counsel for the Union of India, that the appellants were not entitled to any compensation as the land belonged to the Government. If that be so and the appellants had no interest in the land, there was no question of any notification under section 4 of the Act being issued. The appellants through their ancestors are continuously in occupation of the land in question since 1892 and perhaps even earlier as per available records.
(18) These appeals , therefore, allowed and it is held that appellants shall be entitled to 80% share in the compensation. To that extent the impugned judgment is set aside.