Smt. Kalawati, Lal Chand Gupta And ... vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 331 Del

JUDGMENT

A.K. Sikri, J.

1. There is no dispute on facts in all these cases. However, a neat question of law is raised which has some importance as well. The question required to be determined is formulated in the writ petition itself in the following terms:

"Whether the respondents can discriminate the land owners/Co-owners in the matter of payment of compensation under the Land Acquisition` in respect of same land of same village acquired under the same notification and same Award."

2. For the sake of convenience, we may note down the facts from W.P.(C) No.1268/86.

3. The petitioner in this case was co-sharer/co-owner of agricultural land of half share of Khasra Nos.240/1(1-4), 245/1 (2-17), 246(4-7), 918/247(2-11), 919/248(1-19), 249(2-2), 923/252(0-6), 250(4-13), 253(5-2), 254(2-14), 255(2-14), 924/254(3-16), 927/260(4-1), 928/261(2-11), 931/264(0-6), 933/265(3-5), 935/268(2-13), 936/269(1-13) total measuring 48 bighas 14 biswas situate in the revenue estate of village Chandrawali alias Shahdara, Delhi. The other co-sharer of the remaining 1/2 share of the aforesaid land was one Shri Sukhbir Saran, s/o Sh.Harsaran Dass r/0. 234, Farsh Bazar, Shahdara, Delhi. The aforesaid land of the petitioner as well as her co-sharer was notified under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') vide Notification dated 13th November, 1959 for Planned Development of Delhi. Subsequently, a Declaration under Section 6 was issued on 17th October, 1962 and as a consequence thereof the Land Acquisition Collector (LAC) made his Award No.1544 on 20th March, 1963 assessing compensation at the rate of Rs.1,250/- per bigha as market value of the aforesaid land of the petitioner and other co-sharer. Not satisfied with the compensation so awarded, the petitioner as well as other co-sharer Sh.Sukhbir Saran filed separate reference petitions under Section 18 of the Act which were sent to the Reference Court for determination of true compensation due to these persons in respect of their share of the land so acquired. The reference petitions of the petitioner as well as her co-sharer, along with some other similar petitions, were decided by a common judgment dated 26th March, 1968 passed by the Additional District Judge enhancing the compensation from Rs.1,250/- to Rs.4,000/- per bigha. In fact eight cases were consolidated in respect of the aforesaid acquisition proceedings for which, apart from Award No. 1544 dated 20th March, 1963, another Award No.1542 dated 21st March, 1963 was also passed. The compensation which was awarded was Rs.4,000/-, Rs.4,500/- and Rs.5,000/- per bigha according to the situation of the land, i.e.nearness to the metalled road. In so far as the petitioner and her co-sharer are concerned, in respect of their land compensation was fixed at Rs.4,000/- per bigha.

4. While the petitioner did not prefer any appeal under Section 54 of the Act to this court, her co-sharer, Sh.Sukhbir Saran filed RFA No.417/68 against the judgment dated 26th March, 1968 passed by the Additional District Judge. The said appeal was allowed and this court modified the award of the LAC and the Additional District Judge enhancing the compensation from Rs.4,000/- per bigha to Rs.15 per sq.yards i.e. Rs.15,120/- per bigha at a flat rate in respect of entire land covered under the two Awards, namely, Award Nos.1544 and 1542 arising out of same Notification dated 13th November, 1959.

5. The judgment of the Division Bench of this court is dated 8th August, 1984. Within a short period thereof, the Parliament passed the Land Acquisition (Amendment) Act, 1984 and added new provision in the form of Section 28A which provides that if the court allows to any person any amount of compensation in excess of the amount awarded by the Collector, the other interested person in all other lands covered by the same Notification under Section 4, may apply to the Collector within three months from the award of the court, for redetermination of compensation payable to them on the basis of amount awarded by the court.

6. After coming to know of the judgment dated 8th August, 1984 passed by this court whereby compensation was further enhanced and encouraged by the introduction of the new provision, the petitioner moved an application before the LAC under Section 28A of the Act. This application was, however, dismissed by the LAC vide order dated 7th March, 1986 giving following reason:

"The provisions of 28-A of the Land Acquisition Act are attracted only if the interested person had not filed a reference under section 18 of the Land Acquisition Act. Since the applicant(s) in the present has/have already filed reference under section 18 and she also had the benefit of the judgment delivered by the Additional District Judge, she cannot benefit from the aforesaid section. Consequently her application is hereby rejected."

7. At this stage, present writ petition was filed by the petitioner, inter alia, challenging the aforesaid order and also seeking mandamus against the respondent to pay her the enhanced amount of compensation as given to her co-sharer.

8. Almost in similar factual backdrop, two other writ petitions [W.P.(C) Nos.2717 and 2722/86] are filed. The petitioners in other two cases are also co-sharers who sought reference under Section 18 of the Act after the Award was pronounced by the LAC. However, while they did not prefer any appeal, their co-sharers filed such appeals which were decided by same judgment dated 8th August, 1984 and on that basis they also moved applications under Section 28A of the Act which met the same fate.

9. In these writ petitions the petitioners have challenged the impugned order dated 7th March, 1986 passed under Section 28A of the Act on the ground that such an application was maintainable. However, this ground was not seriously pressed before us and rightly so. We say so in view of language of Section 28A of the Act which unambiguously and in explicit terms does not cover the cases where the enhancement in compensation can be claimed on the basis of judgment of the High Court pronounced in appeals filed under Section 54 of the Act in other matters. Section 28A is worded as under:

"28A. Re-determination of the amount of compensation on the basis of the award of the Court .- (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:

Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under section 18."

10. Interpreting this Section, the Supreme Court in the case of Babua Ram and others Vs. State of U.P.and another categorically held that:

" The next question is whether an interested person who sought and secured reference under Section 18 but was either unsuccessful and filed no appeal or had carried in appeal but unsuccessful, would be entitled to re-determination when the compensation was enhanced by the appellate court either under Section 54 or on further appeal under Articles 132, 133 and 136 of the Constitution. In Mewa Ram case this Court held in paragraph 5 that Section 28-A provides for the determination of amount of compensation subject to the conditions laid down therein are fulfillled. For such redetermination, the forum is the Collector and the application has to be made before him within 30 days from the date of the award under Section 26 and the right is restricted to persons who had not applied for reference under Section 18 of the Act. If these conditions are satisfied, the petitioner could have availed of the remedy provided under Section 28A of the Act. In Scheduled Castes Coop.Land Owning Society Ltd.V.Union of India, this Court held that : (SCC p.178, para 4) "It is obvious on a plain reading of sub-section (1) of Section 28A that it applies only to those claimants who had failed to seek a reference under Section 18 of the Act. The redetermination has to be done by the Collector on the basis of the compensation awarded by the court in the reference under Section 18 of the Act and application in that behalf has to be made to the Collector within 30 days from the date of the award. Thus only those claimants who had failed to apply for a reference under Section 18 of the Act are conferred this right to apply to the Collector for redetermination and not all those like the petitioners who had not only sought a reference under Section 18 but had also filed an appeal in the High Court..."

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The doctrine of res judicata under Section 11 of CPC operates against such persons. Having pursued the remedy in a competent civil court and allowed the decree under Section 26 or under Section 54 to become final, it binds the parties and the State and operates as res judicata and he or they cannot fall back upon the right and remedy under sub-section (1) of Section 28-A as the public policy envisaged is that such a party cannot agitate its right twice over. Sub-section (1) of Section 28-A, therefore, by the non-obstante clause made available the right and remedy to the poor and inarticulate persons interested in other lands covered by the same notification under Section 4(1) and made no application under Section 18 to avail the right and remedy under Section 28-A(1). But those who sought and secured reference under Section 18, be the poor or others, and failed before the civil court or in appeal under Section 54 or under Article 136 etc.the right and remedy provided by Section 28-A(1) is not available to him/them. In other words, the operation of Section 28A is confined to the award made in Part III only and not to the judgment or decree of the High Court or the appellate court under Section 54 or of this Court under Articles 132, 133 or 136 of the Constitution. Therefore, the unsuccessful interested persons who sought and failed in the reference under Section 18 or in appeal under Section 54 or under Article 136 etc.are not persons aggrieved under sub-section (1) of Section 28A, when other similar person had higher compensation by pursuing that remedy. Therefore, he or they, though interested in the land covered by the same notification under Section 4(1), are not entitled to make an application/applications for redetermination under sub-section (1) of Section 28-A."

11. A Division Bench of this Court in the case of Union of India Vs. Parbhati followed the aforesaid view. Thus the person interested can move an application under Section 28A of the Act only if he had not sought reference under Section 18 of the Act and is now seeking the benefit of enhanced compensation as fixed by the Reference Court. The "Court " as referred to in Section 28A of the Act is the Reference Court and not the High Court as would be clear from definition of "Court" in Section 3(d) of the Act which reads as under:

"the expression "Court" means a principal Civil Court of original jurisdiction, unless the Appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act."

Thus there would not be any legal infirmity in the impugned order dated 7th March, 1986 rejecting the application of the petitioners under Section 28A of the Act.

12. Conscious of the aforesaid legal position, Mr.P.N.Lekhi, learned senior counsel appearing for the petitioners, confined thrust of his submission only on the afore-quoted issue formulated in the writ petition. His submission was that when co-sharer was given higher compensation and land acquired being same in which the petitioners also had undivided interest, the petitioners could not be denied equal treatment. In equity also, it was argued, the function of the Courts was to do substantial justice. Such a treatment the petitioners were entitled to, on the first principles, that a co-owner of the land was entitled to same treatment as given to other co-owner. This principle applied dehors the provisions of the Act, was the submission of Mr.Lekhi. In support of this submission, he relied upon the judgment of this Court in the case of Union of India Vs. Shri Shibu Ram Mittal (Deceased) by L.Rs. Reported in and that of Apex Court in the cases of Joginder Singh and others Vs. State of Punjab and another , Bhag Singh and others Vs. Union Territory of Chandigarh through The Land Acquisition Collector, Chandigarh , A.Viswanatha Pillai and others Vs. The Special Tehsildar For Land Acquisition No.IV and others and Jalandhar Improvement Trust Vs. State of Punjab and others , . Placing strong reliance on the judgment in the case of Jalandhur Improvement Trust (supra), his submission was that it was a case decided on the first principles as there also the application of the land owner was rejected by the authorities under Section 28A of the Act. Mr.Lekhi further submitted that the `first principle of law' in such a case would be the principle of `distributive justice' as explained by Salmond on Jurisprudence in Twelfth Edition by P.J.Fitzgerald in the following words:

"Now justice operates at two different levels. As " distributive justice", it works to ensure a fair division of social benefits and burdens among the members of a community. One of the most important of democratic rights is the right to vote, the fair distribution of which is clearly demanded by the Benthamite claim that each should count for one and no one for more than one-a principle which would be manifestly offended against by a restriction of the franchise to red-haired citizens. One of the citizen's most onerous burdens is taxation, which too should, in justice, be fairly distributed, so that a statute taxing red-haired citizens at double the rate of others would equally contravene this requirement. Distributive justice then serves to secure a balance or equilibrium among the members of society.

This balance, however, can be upset. Suppose one citizen, X, is prevented by another, Y, from exercising his right to vote. Now the balance is upset because Y has deprived X of a right that should be equally enjoyed by all. At this point "corrective justice" will move in to correct the disequilibrium by forcing Y to make X some compensation. Or again if a wrongfully seizes B's property, corrective justice acts to restore the status quo by compelling A to make restitution. Justice, then, in its distributive aspect serves to secure, and in its corrective aspect to redress, the balance of benefits and burdens in a society.

The former aspect is the concern primarily of those whose task it is to enact constitutions and codes and make new laws by legislation, these being the levels at which division of social goods takes place. The function of the courts is chiefly that of applying justice in its corrective sense. In a just system of law, then, we shall expect to find on the one hand rules aiming to procure an equality of distribution, and on the other specific rules relating to the application of corrective justice by the courts. These latter rules, however, can be themselves regarded as securing fair dispensation of corrective justice."

13. He thus submitted that justice required that two co-owners of a property, which is acquired by the Government, be treated alike by paying same amount of compensation which would be meting out fair and equal treatment to them.

14. It is this submission of Mr.Lekhi to which we have given our thoughtful consideration.

15. Article 300A of the Constitution mandates that no person shall be deprived of his property, save by the authority of law. The Act is the law which permits the Government to acquire the land of another person compulsorily, i.e. against his wishes and without his consent. The power to acquire land is an exercise of sovereign power of the State commonly known as doctrine of eminent domain. State has right to acquire the property of its citizens in public interest and for public purpose. Since it is compulsory acquisition of the property belonging to other person and against his will, the Act further provides that a person who is deprived of his land, is to be compensated by giving him the market value of the land so acquired. The Act lays down the principles which are to be kept in mind while determining such market value. Principles for determination of the market value are intended to award to expropriated owner the value of property acquired. The purpose is to indemnify a person and compensation should be equivalent in terms of money of the property compulsorily acquired. In State of Gujarat Vs.Shantilal , it was observed that in ordinary parlance the expression "compensation" means anything given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay." In determining the amount of market value on the principles set out in Section 23(1) of the Act, it should be borne in mind that compensation under Section 23 is paid to indemnify a person and it should be equivalent or substitute of equal values. In Hemchand Vs. State of Haryana, , it was held that compensation is paid to indemnify a person and it should normally be an equivalent, a substitute of equal values. The principle of equivalence which is at the root of statutory compensation postulates that the expropriated owner shall be paid neither less nor more than his loss. We may, in this connection, usefully excerpt the following observations made in Horn v.Sudder Land Corporation, (1941) 1 All E.R.480:

"The word `compensation' almost of itself carried the corollary that the loss to the seller must be completely made up to him, on the ground that unless he received a price which fully equalled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice."

16. It is for this reason that when the LAC is given power to determine the compensation and make an award under Section 11 of the Act, the aggrieved person may still refuse the said determination and seek reference under Section 18 of the Act to the Reference Court and it is the said Court, namely, the judicial authority which is given the task of determining the market value. Even when the compensation is determined by the Reference Court, the Act gives a right to the aggrieved party to file further appeal under the provisions of Section 54 of the Act. The attempt is to determine, by judicial process, fair market value of the land acquired by the Government and compensate the land owner with an equivalent/equal value.

17. However, Mr.Sanjay Poddar, learned counsel for the respondents, entered a caveat to the maintainability of the present writ petitions. He submitted that the Act is a complete code providing for acquisition of land as well as determination of compensation for the land acquired. His submission was that once the land was acquired by issuing necessary Notifications under Sections 4 and 6 of the Act, the LAC was to give notice to the "persons interested" stating that the Government intended to take possession of the land, and that claims of compensation for all interested in such land may be made to him. After receiving such claims, the LAC is required to make inquiries of the nature contemplated under Section 11 of the Act and give his Award. Such an Award shall be final and conclusive evidence, as between the LAC and the persons interested, in view of Section 12 of the Act which makes the following reading:

"Section 12: Award of Collector when to be final.- (1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and apportionment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made."

18. Mr.Poddar submitted that finality of this Award could be disturbed only in three eventualities, provided in the Act itself, which were the following:

(a) When any interested person refusing to accept the Award makes a written application to the LAC requiring him to refer the matter to the Court for determination of the amount of compensation, in such a case, when reference is made to the Court, the Court could make an Award under Section 26 of the Act, awarding higher compensation.

(b) Section 54 of the Act provided remedy of appeals against the order of the Reference Court to the High Court (and thereafter to the Supreme Court) and in these appeals High Court (or the Supreme Court, as the case may be), could further enhance the compensation thereby tinkering with the finality of the Award as specified in Section 12 of the Act.

(c) Only other exception, provided under the Act, was Section 28A wherein even when no reference was sought, after the Reference Court enhanced the compensation on application by other interested persons in respect of other land covered by same Notification, a person could make an application to the LAC to redetermine his compensation on the basis of the amount of compensation awarded by the Reference Court. 19. The learned counsel submitted that since the petitioners had sought reference and got the compensation determined by the Reference Court but did not prefer any appeal under Section 54 of the Act and the remedy under Section 28A was also not admissible in these circumstances, there was no provision under which the petitioners could claim the same compensation as awarded by the High Court in appeal of the co-sharer as decided by the High Court.

20. Answer to the aforesaid submission of Mr.Poddar is provided by the Supreme Court in the case of Jalandhar Improvement Trust (Supra). That was also a case of co-owners of land. After the compensation was fixed by the LAC in his Award, respondent No.4 had sought reference under Section 18 of the Act which was rejected because of delay. However, reference of the petitioners 2 to 5, who were co-owners of land along with respondent No.4, was allowed and enhanced compensation was granted. After enhancement of the compensation, respondent No.4 moved an application under Section 28A of the Act, which was allowed by the LAC. Jalandhar Improvement Trust, the beneficiary in which the land was acquired, challenged it by filing writ petition which was dismissed by a Division Bench of the Punjab & Haryana High Court. In further appeal to the Supreme Court, the Jalandhar Improvement Trust took up the contention to the effect that Section 28A was not applicable as it was not a case where respondent No.4 had not sought reference under Section 18 of the Act but said reference was rejected albeit on the ground of delay. The Supreme Court did not deem it even necessary to go into this question and dismissed the appeal of the Jalandhar Improvement Trust holding that co-owners of the land could not be given differential treatment. It would be apposite to quote the exact discussion on this aspect from the judgment itself:

"Para 4: The learned Senior Counsel for the appellant strenuously contended that inasmuch as the claim of the 4th respondent came to be rejected by the very same award dated 5-2-1986, no advantage can be taken by the 4th respondent who has not challenged that part of the award rejected her claim for availing of the benefit of Section 28-A of the Act and that to a case like the one on hand, Section 28-A will have no application. The learned counsel for the 4th respondent relied upon the judgment of the Constitution bench , Union of India v.Hansoli Devi.

Para 5: Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. The 4th respondent indisputably is a co-owner along with her children who were added as Petitioners 2 to 5 to the award dated 5-2-1986, in which case, even on the first principles of law one co-owner is entitled to have the benefit of the enhanced compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th respondent's application for reference under Section 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to differentiate the claims of such co-owners whose claims came to be really sustained and that of the 4th respondent, for differential treatment. We are fortified to some extent in the view expressed above, by principles laid down by this Court in the decision reported in A.Viswanatha Pillai v.Special Tehsildar for Land Acquisition

Para 6: In the light of the above conclusion of ours, and finding that real and substantial justice has been done to the parties, we decline to interfere with the order made by the Land Acquisition Collector, giving the benefit of enhanced compensation to the 4th respondent."

21. Reading of the aforesaid judgment makes it clear that it was treated as the first principles of law that a co-owner is entitled to have the benefit of the enhanced compensation given to the other co-owners qua the same land acquired which belonged to all of them, jointly. It can thus be clearly concluded that this judgment is the authority for the proposition that even if the case does not fall strictly within the ambit of Section 28A of the Act, still on the principle of parity, another exception is carved out, namely, when the acquired land belongs to co-owners jointly, which is subject matter of acquisition, all the co-owners are to be given the same compensation and they cannot be treated differentially. This is inherent in the concept of co-ownership itself as laid down by the Supreme Court in the case of A.Viswanatha Pillai (supra) in the following words:

" It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would ensure 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 righ, 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 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 Vs. jagannath and Pal Singh Vs. Sunder Singh . 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 rate. 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."

22. Thus, we conclude that normally a person whose land is acquired and thereupon award is made by the LAC fixing the compensation, he should seek enhancement thereof in the manner provided under the Act by resort to the provisions of Sections 18, 54 and 28 of the Act. However, if he is co-owner of the land acquired and other co-owner gets enhanced compensation in appeal etc., he would be entitled to same treatment even if he did not prefer appeal, on the first principles of law that one co-owner is entitled to have the benefit of the enhanced compensation given in respect of other co-owners of the land acquired, which belonged to all of them, jointly.

23. These writ petitions are accordingly allowed. It is directed that the LAC shall give the petitioners compensation qua their share of land at the rate of Rs.15,120/- per bigha which is given to other co-sharers. The payment shall be worked out, on this basis, by the LAC along with other statutory benefits admissible to the petitioners and paid to them within a period of three months.

24. In the facts and circumstances of the case, there shall, however, be no order as to costs.