IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 223 of 1999 Judgment reserved on : 20.10.2011 Date of decision: 21.11.2011 Tota Ram and others …Appellants. Versus Dumnu Ram and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellants : Mr. B.K.Malhotra, Advocate. For the respondents : Mr. Balwant Singh, Advocate, vice Mr. K.D.Sood, Advocate for respondents No.1, 3, 9 and LRs. of deceased respondent No.2. Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. for respondent No.16. None for other respondents. Kuldip Singh , Judge This appeal has been directed against judgment, decree dated 13.1.1999 passed by Additional District Judge, Mandi in Civil Appeal No. 6 of 1991/11 of 1996 reversing judgment, decree dated 31.12.1990 passed by Sub Judge 1st Class, Court No.1, Mandi in Civil Suit No. 24/89 (88). Some parties have died, their legal representatives have been brought on record. In this judgment, the parties are referred as plaintiffs and defendants. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The brief facts of the case are that the plaintiffs filed a suit on 4.10.1988 for permanent prohibitory injunction against the State of Himachal Pradesh and six private defendants restraining defendants No. 2 to 7 from receiving payment of assessed amount of compensation in respect of acquired land in which plaintiffs are co-sharers with further prayer to restrain defendant No.1 State of Himachal Pradesh from making any payment of assessed amount of compensation to defendants No. 2 to 7. The prayer of mandatory injunction has also been made to re- consider and amend the award, re-apportion the amount of compensation between plaintiffs and defendants No. 2 to 7 as per their shares recorded in revenue record. 3. The further case of the plaintiffs is that land measuring 35- 10-17 bighas situated at Jhiri, H.B. No. 508, Illaqua Sanor more specifically described in the plaint is recorded in the joint ownership of the plaintiffs and defendants but in possession of defendants No. 2 to 7 as co-sharers as per jamabandi for the year 1986-87. The Government has acquired the land comprised in Khasra No. 389 measuring 2-14-5 bighas, Khasra No. 391 measuring 3-10-17 bighas and Khasra No. 390 measuring 2-16-17 bighas for purposes of widening of National Highway No. 21. The Collector, Land Acquisition H.P.Public Works Department (for short ‘Collector’) gave his award under Section 11 of the Land Acquisition Act, 1894 (for short ‘Act’) awarding compensation in favour of defendants No. 2 to 7 excluding the plaintiffs. The defendants No. 2 to 7 were possessing the aforesaid land as trustees of the plaintiffs, who have every right, title or interest in the acquired land. 3 4. The defendant No.1 has wrongly ignored the claim for compensation of plaintiffs, the amount of compensation has been apportioned in favour of defendants No. 2 to 7 and the amount would be paid to defendants No. 2 to 7. On their part, defendants No. 2 to 7 are also trying to receive the amount of compensation from defendant No.1 including the share of the plaintiffs by concealing true facts. The defendant No.1 despite objections and request of the plaintiffs has declined to consider the claim of the plaintiffs for re-apportionment of the assessed amount of compensation. It has been alleged that cause of action has arisen to the plaintiffs on 28.9.1988 when request of the plaintiffs for apportionment of the amount of compensation among the parties according to their recorded shares was declined by defendant No.1. In these circumstances, the plaintiffs filed the suit. 5. The defendant No.1 contested the suit by filing written statement. The defendants No. 2 to 7 also contested the suit by filing joint written statement. The defendant No.1 took the preliminary objections of maintainability, jurisdiction and cause of action. On merits, it has been submitted that only Khasra No. 659/390/1 measuring 0-6-4 bighas, Khasra No. 389/1 measuring 0-5-12 bighas and khasra No. 391/1 measuring 0-7-4 bighas total 0-19-0 bigha land was acquired for construction/widening of National Highway 21 in village Jhiri. The acquired land belonged to defendants No. 2 to 7 as per revenue record. The interested persons at the time of enquiry under Section 9 of the Act stated that compensation in joint land be paid to co-sharers who are in possession of the land on the spot. The notice under Section 9 was issued to all interested persons. The plaintiffs names do exist in the 4 column of ownership but not in the column of cultivation. The award was prepared in accordance with the statements of the interested persons. The plaintiffs did not put any claim during enquiry under Section 9. It has been stated that on account of stay granted, the payment has been withheld. 6. The defendants No. 2 to 7 in their written statement took preliminary objections of mis-joinder and non-joinder, jurisdiction, valuation and maintainability. On merits, it has been denied that plaintiffs are joint owners alongwith defendants No. 2 to 7 of the suit land. The defendants No. 2 to 7 are in possession of the suit land. The entries showing plaintiffs as joint owners of the suit land are wrong. The plaintiffs have no right, title or interest in the suit land. The defendants No. 2 to 7 are legally entitled to receive the compensation. The claim of the plaintiffs is wrong and not sustainable. The suit is not competent. The plaintiffs for their grievance could have gone in reference which was right forum. The suit is not maintainable. The right of Masadi after his death and on re- marriage of his widow had vested with the defendants No. 2 to 7 and their predecessors. The plaintiffs had no relation with Masadi. The Court has no jurisdiction to entertain and try the suit. 7. The plaintiffs filed replication to the written statement of defendant No.1 and reiterated their stand taken in the plaint. They have pleaded that no notices under Section 9 were issued to the plaintiffs. The plaintiffs were never served during enquiry under Section 9 of the Act. The stand taken by defendant No.1 was denied. The plaintiffs also filed replication to the written statement of defendants No. 2 to 7 and while 5 denying the defence of defendants No. 2 to 7 re-asserted their case pleaded in the plaint. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in the suit land? OPP 1-A. Whether the plaintiffs are entitled for the compensation amount of the suit land which was acquired by the Govt. to the extent of their share as recorded in the Revenue Record? OPP 2. Whether the plaintiffs are entitled for permanent prohibitory and mandatory injunction? OPP 3. Whether the suit is not maintainable in its present form? OPD 4. Whether this Court has no jurisdiction to try the suit? OPD 5. Whether the plaintiffs have no cause of action to maintain the present suit? OPD-1. 6. Whether the suit is not properly valued for the purposes of Court fee? OPD 2 to 7. 7. Whether the suit is bad for mis-joinder/non-joinder of necessary parties? OPD 8. Whether the plaintiffs have abandoned their share from the suit land? OPD 8-B Whether the property qua the share of Sh. Musadi has vested in the defendants? OPD. 9. Relief. The issues No.1, 1-A to 7 were answered in negative, issues No. 8 and 8-B in affirmative and the suit was dismissed by the learned Sub Judge on 31.12.1990. The learned Additional District Judge in appeal on 13.1.1999 allowed the appeal of plaintiffs No. 8 to 10. It has been held that plaintiffs No. 8 to 10 are co-owners of the suit land as per jamabandi Ex.P-1 for the year 1986-87. The plaintiffs No. 8 to 10 are entitled to their 6 share of the compensation as per entry in Ex.P-1 for the year 1986-87 from defendant No.1. The defendants have come in second appeal which has been admitted on following substantial questions of law:- 1. Whether in the absence of the service of notice under Section 52 of the Land Acquisition Act, suit for permanent, prohibitory and mandatory injunction for apportionment of the compensation is maintainable? 2. Whether without recourse to the provisions of Land Acquisition Act regarding apportionment of compensation an independent suit for apportionment, in effect and substance, is maintainable? 3. Whether the learned lower Appellate Court has misconstrued, misread, misinterpreted and misappreciated the evidence on record and thereby reached wrong conclusions? 9. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the suit is not maintainable under Section 52 of the Act. The complete remedy is provided in Act for the alleged grievance of plaintiffs, hence suit is barred under Section 9 CPC. The Court below has misconstrued and mis-interpreted the evidence on record and reached wrong conclusions. The learned counsel for respondents representing the private parties has supported the impugned judgment, decree. The learned Additional Advocate General has submitted for passing appropriate order, judgment. 10. The substantial questions of law No. 1 is taken first for adjudication. The Section 52 of the Act provides that no suit or other proceeding shall be commenced or prosecuted against any person for anything done in pursuance of the Act, without giving to such person a 7 month’s previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends. In Ezra vs. Secretary of State, ILR 30 Calcutta 37, it has been held that Section 52 of the Land Acquisition Act refers to tortious act done under the enactment. On behalf of the appellants it has not been elaborated how the suit for permanent prohibitory injunction and mandatory injunction filed by the plaintiffs is barred under Section 52 of the Act. The substantial question of law No. 1 is decided against the appellants. 11. The substantial questions of law No. 2 and 3 are taken up collectively for determination. The core grievance of the plaintiffs is that they are co-sharers with defendants No. 2 to 7. In the acquisition proceedings they were not given notice during the proceedings under Section 9 of the Act. The Collector has wrongly excluded them while awarding compensation even though they are joint owners of the suit land alongwith defendants No. 2 to 7 in whose favour the entire amount of compensation has been awarded by the Collector. The plaintiffs have claimed share in the compensation amount of the acquired land as per their recorded share in the suit land vide jamabandi Ex.P-1 for the year 1986-87. 12. On behalf of defendants No. 2 to 7 it has been submitted that suit filed by the plaintiffs is wholly misconceived. The suit is barred under Section 9 CPC, complete and effective remedy has been provided under the Act for the alleged grievance of the plaintiffs. The suit is otherwise not maintainable inasmuch as no declaration has been sought for setting aside award passed by the Collector. On the contrary, prayer has been made to re-consider and re-amend the award. The learned counsel for 8 defendants No. 2 to 7 has relied Arulmighu Lakshminarasimhaswamy Temple Singirigudi vs. Union of India and others ( 1996) 6 SCC 408 in support of his contention that dispute of apportionment is to be referred to the Court under Section 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation. It has been submitted that this aspect of the case has been ignored by lower Appellate Court. 13. Ex.Dy is the copy of award No. 23 dated 7.9.1988. It has been stated in the award that necessary notices as required under Section 9 of the Act were issued to all interested persons. The notices were served in advance on the date fixed for receiving claims, regarding compensation. It has been stated that in response to notice issued under Section 9 of the Act on 11.3.1988 the date fixed for hearing, 42 persons interested appeared. 14. PW-1 Pir Sahai plaintiff No.10 is the only person examined by the plaintiffs while leading evidence in affirmative. In examination-in- chief he has nowhere stated that he or any other plaintiff did not receive notice of the proceedings under Section 9 of the Act when the land in question was acquired. He has rather stated that the Land Acquisition Collector has awarded compensation in favour of defendants, nothing was enquired from them. They had objected but their objection was not considered. In cross-examination, he has stated that he did not receive notice of the proceedings under Section 9 of the Act but this part of the statement is inconsequential when in the earlier part of the statement he has said that he had objected before the Land Acquisition Collector but that was not considered. PW-2 Smt. Nakhru in rebuttal has said 9 nothing about the service of notice of proceedings under Section 9 of the Act. This is the entire oral evidence led by the plaintiffs. This apart Section 12 of the Act gives finality to the award between Collector and persons interested whether they have appeared before the Collector or not and apportionment of the compensation among the persons interested. The dispute of apportionment of the amount of compensation can be referred to the Court either under Section 18 of the Act at the instance of person interested or under Section 30 at the instance of the Collector. The plaintiffs have not filed any application under Section 18 of the Act for reference nor a request has been made to Collector to send the reference under Section 30 of the Act. 15. In Nanak Chand vs. Piran Ditta AIR 1941 Lahore, 268 it has been held no specific time is provided within which the reference under Section 30 could be made. When the question is purely one of title, it is open to the Collector to forward the reference whether the period has expired or not. The Court has further held as under:- “When a statute confers an unqualified discretion upon some authority, this is usually interpreted as meaning that the authority may act either entirely of his own motion or upon being moved by some interested party, and his powers are regarded as limited if this is required by some necessary implication. No such implication appears to arise in the present instance. If Section 30 is read in its plain sense, this simply means that the Collector must refer a question of title if required to do so by an application received within the prescribed time, but if an application is received after that time, he then has the option of referring the matter to the District Judge or refusing to do so; and if the Collector, while forwarding the reference himself, mentions that the 10 application is received after the prescribed time, it is to be presumed that he is intentionally making a reference under Section 30.” 16. In Arulmighu Lakshminarasimhaswamy Temple Singirigudi (supra) the Supreme Court has held as under:- “The learned Single Judge declared the title of the petitioner in the writ petition and the Division Bench directed the civil court to decide the title. Both views are obviously erroneous in law. The Land Acquisition Officer has to determine the extent of the land, the persons entitled to compensation and the compensation to be determined under Section 23 (1) of the Act. If he finds that there is any dispute as to the person entitled to receive the compensation, necessarily he has to deposit the amount under Section 31 of the Act into the court to which reference would lie. On such a dispute having arisen, he has to make a reference to the court under Section 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation. Under those circumstances, the only legal course open is that a direction be issued to the Land Acquisition Officer to make a reference under Section 30 to decide the inter se title to receive the compensation either by the appellant or by the fourth respondent, as the case may be and the Reference Court would decide the matter in accordance with law.” 17. The Section 30 provides that in case of dispute as to apportionment of the compensation settled under Section 11 the Collector may refer such dispute to the decision of the Court. There is nothing in Section 30 that if a request is made by the interested persons for referring the dispute of apportionment under Section 30 to the Court then the Collector is precluded from entertaining such request. There is nothing on 11 record that plaintiffs requested the Collector to refer the dispute of apportionment to the Court under Section 30. Assuming that plaintiffs were not aware of the proceedings before the Collector but atleast on the date of filing of the suit the plaintiffs were aware of the award. The plaintiffs could have requested the Collector to make the reference under Section 30. The plaintiffs instead of exhausting the remedy provided under the Act, filed the suit. 18. Section 9 CPC provides that Courts shall have jurisdiction to try all the suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In Arulmighu Lakshminarasimhaswamy Temple Singirigudi (supra) the Division Bench of the High Court directed the civil court to decide the title. But the Supreme Court has held that the view was erroneous in law. The Supreme Court has held that only legal course open is that a direction be issued to the Collector Land Acquisition to make a reference under Section 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation. The Supreme Court directed the Land Acquisition Officer to make a reference to the Court under Section 30. In the present case, no such direction can be given as the appeal has arisen out of suit and this Court is not exercising jurisdiction under Article 226 of the Constitution of India. 19. In the suit, there is no prayer for setting aside the award nor the courts below have set-aside or modified the award. The award passed by the Collector under Section11 of the Act attains finality under Section 12. In absence of declaration and consequential modification of award the relief granted by lower Appellate Court in favour of plaintiffs 12 No. 8 to 10 to share the amount of compensation with defendants No. 2 to 7 is legally not permissible. In view of above discussion, the two Courts below have not properly considered the maintainability of the suit. The impugned judgments of the Courts below are not sustainable. The substantial questions of law No. 2 and 3 are decided in favour of the appellants. 20. In view of above discussion appeal is allowed, impugned judgment, decree are set-aside, suit is dismissed as not maintainable. It will be open to the plaintiffs to seek other remedy as available to them in law and in that situation the dispute between the parties shall be adjudicated on merits in accordance with law uninfluenced by any observation made in this judgment. The parties shall bear their own costs. ( Kuldip Singh ) November 21, 2011 Judge. (GR)