vil Appeal Nos
54 to 56 of 1975
From the Judgment and Order dated 2961973 of the Kerala High Court in AS Nos
603604 and 605 of 1969
N Sudhakaran for the Appellants
KV Viswanathan KR Nambiar and TT Kunhikannan for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
These appeals by special leave are directed against the judgment and decrees of Kerala High Court in AS Nos
603604 and 605 of 1969 dated June 29 1973 confirming the award and decrees of the Civil Court in LAOP No 413 etc
of 1964 and 370 and 405 of 1966 dated January 16 1969
The notification under section 41 of the Land Acquisition Act 1894 for short the Act  was pub lished in the gazette on October 25 1960 acquiring an ancient Chalai Anicut together with embarkments sluices culverts etc
by six notifications
This ancient Chalai Anicut originally belonged to Arumughom Pillai
On his demise it devolved on his four sons Venkatachalam Pillai Vishwanathan Pillai Pasupathy Pillai and Subhapathy Pillai by intestate succession as coparceners
By partition deed exhibit B 23 dated December 22 1954 the four brothers parti tioned certain properties but kept in common acquired Chalai Anicut under the management of the eldest brother Venkata chalam Pillai
Pursuant to the notice issued under section 93 and 10 of the Act Venkatacha 468 lam filed his objections making reference therein to the partition deed No 2437 of 1954 in the Registrar s office Palghat and that each of the brothers had 14 share in the Anicut and irrigation system
After the award made by the Land Acquisition Officer compensation was made to all the brothers at 14th share each
Venkatachalam sought six references under section 18 as he was dissatisfied with the awards made by the Land Acquisition Officer
The Civil Court enhanced in all to a sum of Rs5200940 p
The State filed no appeal against the enhancement of the compensation
The Civil Court granted an award of 14 share thereof to Venka tachalam Pillai with solatium at 15 per cent and interest thereon at 4 per cent and did not award the balance amount to the appellants in their respective shares on the ground that they did not jointly ask for reference but only one alone asked for
The two brothers asked for reference for two awards only and the last one did not ask for reference of any award
On appeals the High Court confirmed the award and decrees of the Civil Court
Thus these three appeals at their behest
Common question of law arises in these appeals and hence they are disposed of by a common judgment
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 14 share in the ancient Anicut and the irriga tion system
It is also undisputed that total enhanced compensation is Rs5200940 p
Therein all the four broth ers including the appellant are entitled to 14 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 en hanced amount at the figure specified in the reference application
Undoubted he stated therein that he is entitled to 14 share
What he stated thereby was that of his enti tlement of 14 share of the total enhanced compensation and obviously after the reference on par with his three broth ers he is entitled to receive compensation at 14 share
The Courts below disallowed the payment to the appellants on the ground that there is no mention in the 469 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 93 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 14th 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 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 93 and 10 Venkatchalam made necessary averments that himself and his brothers had 14 share in the Anicut and irrigation system pursuant to the partition deed referred to therein
In his reference application under section 18 also he 470 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 vs
BP Pathak  Ors
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 vs Jagannath  Ors 19771 SCR 395 and Pal Singh vs Sunder Singh dead by Lrs  Ors
  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 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 14 share therein
It was also laid by this Court in a recent judgment in Ram Kumar  Ors
vs Union of India  Ors
  that it is the duty of the Collector to send full infor mation 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 471 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 appel lants 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 14 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
RP Appeals allowed


Summary:
The appellant held a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route which overlaps a portion of the KotaSangod route
The State Road Transport Corporation vide Notification dated 11101979 proposed a scheme under Section 68 C of the for the exclusive operation of its vehicles on the Kota Sangod route
The affected operators of the route including the appellant filed their objections against the scheme before the authority appointed by the State Government which ap proved the scheme
Before the State Government could issue the final Noti fication under Section 68 D3 of the old Act the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing
501 Meanwhile the was enforced with effect from 171989 repealing the old Act
The appellant thereupon filed a writ petition before the High Court for restraining the State Government from issuing the final Notification on the ground that on the enforcement of the new Act the Notification dated 11101979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same
A similar writ petition had been filed earlier in re spect of Kishangarh Sarwad route by one affected party on similar grounds
A learned Single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act
When he filed a Letters Patent Appeal the Division Bench dismissed the Appeal as well as the various writ petitions including that of the appellant by a common order against which the present appeal was made
After the judgment of the High Court the final notifi cation was published in the Official Gazette on 2981990 section 1003 of the new Act
The appellant contended before the Court that since there was undue delay of 11 years in issuing the final Notification the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 1003 of the new Act that since the draft scheme dated 11101979 was not finalised under Section 1003 of the new Act the same had lapsed after one year from the date of the notification issued section 68 C of the old Act and that since period of one year had already expired from the date of the publica tion of the scheme under Section 68 C of old Act the scheme automatically lapsed and the same could not be finally published under Section 100 of the new Act
Dismissing the appeal this Court HELD 11
The object and purpose of Section 1004 is to avoid delay in finalising a scheme
The Parliament was aware that under the old Act schemes were not finalised for long years as a result of which public interest suffered therefore it prescribed a time frame for the approval and publication of schemes
Sub section 4 prescribes a period of limitation during which the State Government should hear 502 and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so within that period penal conse quences would ensue as a result of which the scheme itself shall stand lapsed
507H 508A 507F G 12
The Legislative intent is clear that the schemes proposed under Section 68 C of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act
The pending schemes were therefore saved and the same were to be fina lised within one year as contemplated by Section 1004 of the new Act
509C D 13
Section 2172e has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be finalised in accordance with Section 100 of the Act
510C  14
If the period of one year from the date of the publication of proposed scheme is applied to the pending schemes under Section 68 C of the old Act the purpose and object of saving the old schemes under Clause e of Section 2172 of the new Act would be frustrated
509E F 21
While Section 2172e permits finalisation of a scheme in accordance with Section 100 of the new Act sub section 4 of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed
If the period of one year as prescribed under Section 1004 is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act both the provisions could be given full effect
510F H 22
While in the case of a scheme under Section 68 C of the old Act pending on the date of enforcement of the new Act namely 171989 the period of one year as prescribed under Section 1004 should be computed from the date of commencement of the new Act
511D E 23
The appellant was himself responsible for the delay therefore he is not entitled to complain for the delay
Delay would not automatically render the scheme illegal
500G 24
Since under the old Act no time frame was pre scribed for finalising a scheme penal consequences could not ensue
Under the old 503 Act a scheme proposed section 68 could continue to remain in force till it was quashed
505G H 25
Since the scheme proposed on 11101979 had not been quashed by any Court the same continued to be in force on the date of commencement of the new Act
In the absence of any provision in the old Act rendering the scheme inef fective on the ground of delay the scheme proposed section 68 C of the old Act could not lapse ipso facto
505H 506A 26
In the instant case stay order passed by the High Court remained in force from May to 9th August 1990
On the exclusion of that period the final Notification issued by the State Government under Section 1003 of the new Act on 2981990 was well within the prescribed period
512C D Yogeshwar Jaiswal etc
vs State Transport Appellate Tribunal  Ors AIR 1985 SC 516 Onkar Singh  Ors
vs Regional Transport Authority Agra  Ors   Devki Nandan vs State of Rajasthan  Ors and Srichand vs Government of UP 1985 4 SCC 169 distinguished
Santosh Kumar  Ors
vs Regional Transport Authority CMWP No 2177389 decided on 16th March 1990 over ruled
Where there appears to be inconsistency in two sec tions of the same Act the principle of harmonious construc tion should be followed in avoiding a head on clash
It should not be lightly assumed that what the Parliament has given with one hand it took away with the other
The provi sions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same
The essence of harmonious construction is to give effect to both the provisions
Venkataramana Devaru vs State of Mysore AIR 1958 SC 225 at p 268 Followed