Delhi High Court
Braham Chand vs Union Of India & Anr. on 2 May, 2018
$~42 to 45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 2nd May, 2018
+ W.P.(C) 7184/2015
KARAM CHAND (NOW DECEASED) THROUGH HIS LRS
..... Petitioner
versus
UNION OF INDIA & ANR
..... Respondent
+ W.P.(C) 7188/2015
BRAHAM CHAND ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
+ W.P.(C) 7211/2015
KRISHAN PAL & ANR. ..... Petitioners
versus
UNION OF INDIA & ANR. ..... Respondents
+ W.P.(C) 7249/2015
GIANENDER SINGH & ORS. ..... Petitioners
versus
UNION OF INDIA & ANR. ..... Respondents
Present: Dr.Vijendra Mahndiyan and Ms.Pallavi Awasthi,
Advocates for the petitioners in all the matters.
Mr.Yeeshu Jain, standing counsel for the LAC/L&B with
Ms.Jyoti Tyagi, Advocate in all the matters.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
1. Four petitions have been filed by the petitioners under Article
226 of the Constitution of India.
2. Although all the four petitions have been heard separately but for
the sake of convenience, they are disposed of by a common order.
3. Rule D.B.
4. For the sake of convenience, the facts of W.P.(C) 7249/2015 are
being noticed. The petitioners in W.P.(C) 7249/2015 are residents
of Village Jagatpur, Delhi being son/grandsons of Late Sh.Chahat
Ram, who was a recorded Bhumidar and in possession of the
agricultural land comprised in Khasra Nos.13/1 Min (0-06), 10
min (1-02), 11 Min (1-02), 9 Min (1-14), 12 Min (3-04), 19 Min
(3-04), 20 Min (1-03), 21 Min (1-02), 22 Min (3-04), 14/7 (6-18),
14/14 (4-16) and 14/17 (4-16) situated in the revenue estate of
village Jharoda Majra, Burari, Delhi. Late Sh.Chahat Ram was
the owner of land measuring 16 bighas 5 biswas and on his
demise he left behind his sons namely Gyanender Singh, Rantej
Singh and legal heirs, namely, Amit, Tilak Singh and Anuj of his
pre deceased son Mahender. Sh.Rantej Singh has also expired
leaving behind his legal heirs, namely, Chaman Singh, Bhushan
Chowdhary and Naveen Chaudhary.
5. A family tree giving the names of the petitioners in all the four
petitions and respective shares of the petitioners has been handed
over in Court today, which has been duly verified by the counsel
for the LAC. We deem it appropriate to scan the chart. The chart
is scanned hereinbelow:
6. A notification under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as „the Act) was issued on 24.07.1998 and
the land of the petitioners was acquired for the purpose of setting
up Dairy Colony Yojna. However, the land was subsequently
utilized for different purposes including for the purpose of Bio-
diversity Park. The land of the petitioner was acquired by
invoking the emergency provisions provided under Section 17 (1)
of the Act. A notification under Section 6 of the Act was issued
on 04.08.1998. An award was rendered on 03.08.2000. The LAC
assessed the market value of the land and awarded compensation
@ Rs.11,20,000/- per acre for Block-I (A), Rs.10,80,000/- per
acre for Block-II (B) and Rs.8,96,000/- per acre for Block-III (C)
land. It is claimed that the land of the co-owners of the petitioner
are mentioned against Serial No.30, 35 and 39 of the award. It is
the grievance of the petitioner that the LAC ignored the claims of
the petitioners and did not award the necessary claim in
accordance with law. It is submitted before us that the land of the
petitioners was acquired along with the land of other co-
Bhumidars being Karam Chand, Braham Chand, Charan Singh
and Kalyan Singh of the same village and a reference under
Section 18 of the Act was filed by Karam Chand. Similar
reference petitions were filed by Charan Singh and Kalyan Singh
but late Sh.Chahat Ram did not file any reference petition. It is
the case of the petitioners that the petitioners are entitled to the
same compensation as that which was granted by the LAC and
thereafter enhanced by the Supreme Court of India as in the case
of other co-sharers being Charan Singh, Kalyan Singh, Dev
Sharma and Mam Chand.
7. Copy of the award which has been placed on record is relied
upon to show that apart from co-owners of Khasras No.13/1,
14/7, 14/14 and 14/17, the petitioners are co-sharers with respect
to the land falling in Khasras No.9, 10 and 12 (co-sharers with
Charan Singh), Khasra No.19 (co-sharers with Kalyan Singh),
Khasra no.11 (co-sharer with Dev Sharma) and Khasras no.20 to
22 (co-sharers with Mam Chand). Reliance is placed on pages 44,
45 and 46 of the paper book in support of this plea.
8. Counsel for the petitioner has placed strong reliance on a
judgment of the Division Bench of this Court in Smt. Kalawati
and Others vs. Union of India and Others reported in AIR 2004
Delhi 351 in support of her submission that if a co-owner of the
acquired land get enhanced compensation, another co-owner
would be entitled to the same treatment even he did not prefer an
appeal or in case his case was not covered under Section 28A of
the Act. Mr.Jain, learned counsel appearing for the LAC submits
that the petitioners had not been able to show that their co-owners
had been granted enhanced compensation with respect to Khasras
no.13/1, 14/7, 14/14 and 14/17. However, learned counsel is
unable to show as to why the present case would not be covered
by the decision rendered in the case of Kalawati (supra) with
respect to the other Khasra numbers.
9. We have heard learned counsels for the parties.
10. The petitioners are unable to show any connection between the
petitioners and such persons who have been granted enhanced
compensation with respect to Khasras no.13/1, 14/7, 14/14,
14/17. However, based on the award to which there is no
opposition it is clear that the co-owners pertaining to the Khasras
no.9, 10, 11, 12 and 20 to 22 have been granted enhanced
compensation by the Supreme Court of India. In the case of
Kalawati (supra), the following question was formulated:
"Whether the respondents can discriminate the land
owners/co-owners in the matter of payment of
compensation under the Land Acquisition Act in respect
of same land of same village acquired under the same
notification and same Award."
11. The submissions of the Senior Counsel who had appeared in the
case of Kalawati (supra) would also lend clarity to the issue
involved in the present writ petition as well, which is noticed in
paras 12, 13, 14 of the judgment in Kalawati (supra), the same
are reproduced as under:
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 de hors 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 v. Shri Shibu Ram Mittal (Deceased) by LRs., 76 (1998)
DLT 577: 1999 (49) DRJ 166 and that of Apex Court in the
cases of Joginder Singh and others v. State of Punjab and
another, (1985) 1 SCC 231, Bhag Singh and others v. Union
Territory of Chandigarh through The Land Acquisition
Collector, Chandigarh, (1985) 3 SCC 737, A. Viswanatha Pillai
and others v. The Special Tehsildar For Land Acquisition No.
IV and Others, (1991) 4 SCC 17and Jalandhar Improvement
Trust v. State of Punjab and Others, (2003) 1 SCC 526. 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.
12. It would also be useful to reproduce the following paragraphs of
judgment rendered in Kalawati (supra):
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 v. Shantilal, AIR 1969 SC 634, 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 v. State
of Haryana, (1994) 6 SCC 720, 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.
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 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, (1977) 2
SCC 814 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, (1976)
4 SCC 184 and Pal Singh v. Sunder Singh, (1989) 1 SCC
444. 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.
13. In our view the case of the petitioners would be fully covered by
the decision rendered in the case of Kalawati (supra) in view of
the fact that other co-owners of the acquired land had been
granted enhanced compensation by the Supreme Court of India.
Thus, the petitioners would be entitled to the same treatment as
the other co-owners except with regard to Khasras No. 13/1, 14/7,
14/14, 14/17. Resultantly, all the four writ petitions are allowed
in above terms.
14. The Rule is made absolute.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
MAY 02, 2018
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