IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No. 83 of 2011 Date of decision: 01.05.2012 ____________________________________________________ 1. Shri Dinesh Kumar, 2. shri Tejinder Kumar, 3. Shri Narinder Kumar, All sons of late Shri Bija Ram, residents of villae Ganeri, PO Shogi, Tehsil and District Shimla, HP. .....Petitioners. Versus 1. State of Himachal, Through its Secretary, Irrigation and Public Health, Government of Himachal Pradesh, Shimla – 171 002. 2. Land Acquisition Collector, Himachal Pradesh Public Works Department, Winterfield Shimla – 171 003. ..…Respondents. Civil Revision petition under Section 115 of the Code of Civil Procedure. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ____________________________________________________ For the petitioners: Mr. Dibender Ghosh, Advocate. For the respondents: Mr. Anil Jaswal, Dy. AG with Mr. Ramesh Thakur, AAG. V.K. Sharma, J. (Oral). The challenge herein in this civil revision petition under Section 115 of the Code of Civil Procedure, 1908 (in short ‘CPC’) is against the order dated 05.03.2011, passed by the learned District Judge (Forest) Shimla, dismissing an application under Section 146 CPC filed by the petitioner herein with a prayer for ‘grant of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 compensation to the extent of the shares of applicants by enforcing the award passed by Ld. ADJ, Shimla in land Reference No. 9-S/4 of 2005, decided on 5.11.2007’. 2. Shorn of details the facts necessary for disposal of the present petition are that land measuring 1 bigha 6 biswa belonging to the predecessor-in-interest of the petitioners, late Shri Bija Ram, to the extent of 1/3 share alongwith other co-owners, namely, Prem Kumar, Vinod Kumar, Krishan Kumar, Swadesh Kumar and Hemant Kumar to the extent of 1/3 share and Om Parkash and Bansi Dhar to the extent of 1/3 share, was acquired by respondent No. 1-State. The acquisition was for a public purpose, namely, ‘Construction of Lift Water Supply Scheme Jadhyal, for Irrigation & Public Health Department in village Jadhyal, Tehsil and District, Shimla, H.P., Land measuring 1-6 Bighas’. After observing all the codal formalities under the Land Acquisition Act, 1894 (in short ‘the Act’) respondent No. 2-Land Acquisition Collector announced his award dated 31.03.2003, Annexure P-1, granting compensation for the acquired land ranging from 36,000/- to 9,00,000/- per bigha on the basis of classification of the land. Being aggrieved, whereas the aforesaid co-sharers, who were owners of the acquired land to the extent of 2/3 share, sought reference to the court under Section 18 of the Act, the predecessor-in-interest of the petitioners, late Shri Bija Ram, did not take any step for referring the matter to the court. 3. The reference on behalf of the aforesaid co-sharers was adjudicated upon by the learned Additional District Judge, Shimla, H.P., who passed award dated 05.11.2007, Annexure P-2, and granted enhanced compensation alongwith interest and other benefits under 3 the Act in their favour. 4. Against the above backdrop, the petitioners moved the aforesaid application under Section 146 CPC for grant of enhanced compensation alongwith interest etc. in terms of the aforesaid award dated 05.11.2007 on the ground that they being successors-in-interest of a co-sharer in an acquired land, namely, late Shri Bija Ram, were also entitled for enhanced compensation alongwith interest and other benefits under the Act at par with other co-sharers. 5. The prayer for enhanced compensation and interest etc. has been declined by the learned Reference Court mainly on the ground that as the petitioners did not come forward for re- determination of the amount of compensation on the basis of the award of the court dated 05.11.2007, Annexure P-2, under Section 28- A of the Act, they were precluded from laying claim for enhanced compensation and interest etc. under Section 146 CPC. 6. I have heard the learned counsel for the petitioners and the learned Deputy Advocate General with the learned Assistant Advocate General for the respondents and gone through the records. 7. I have no hesitation to say at the very outset that the learned Reference Court has not addressed the issue involved in the matter in the right perspective even despite the fact that the law laid down by the Hon’ble Supreme Court in A. Viswanatha Pillai & others vs. The Special Tahsildar for Land Acquisition No. IV and others, (1991) 4 Supreme Court Cases 17 and Jalandhar Improvement Trust vs. State of Punjab and others, AIR 2003 Supreme Court 620, was brought to its notice on behalf of the petitioners, who relied upon the same in support of their claim. 4 8. In the case of A. Viswanatha Pillai & others, supra, the Hon’ble Supreme court has held as under vide the relevant portion of para 2 of the report: “2. … … …The same ratio would apply to the facts in this case as well. When one of the co-owners or coparceners made a statement in his reference application that himself and his brothers 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 coparceners 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 appellants 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 mare no attempt in their behalf. The claimants are entitled to payment of the enhanced award by the civil court pro rata of their ¼ 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.” 9. Thus, it is more than clear that even a co-sharer who has not sought reference to the court is entitled for enhanced compensation pro rata in accordance with his share in the acquired land. 10. In Jalandhar Improvement Trust vs. State of Punjab 5 and others, supra, the Hon’ble Apex Court while placing reliance upon A. Viswanatha Pillai & others, supra, has laid down as under vide para 5: “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 by this Court in the decision reported in (AIR 1991 Supreme Court P. 1966), A. Vishwanath Pillai & Ors. V. Special Tehsildar for land Acquisition.” 11. Thus, it is manifest that the claim for enhanced compensation by a co-owner at par with other co-owners in whose favour an award has been passed is based on his own right as a co- owner irrespective of any claim for re-determination of the amount of compensation on the basis of award of the court under Section 28-A of the Act. 6 12. In view of the above, the petition is allowed. Consequently, the impugned order dated 05.11.2007 is set aside and the petitioners are held entitled for enhanced pro rata compensation alongwith interest and other benefits such as solatium etc. under the Act in accordance with their 1/3rd share in the acquired land in terms of the aforesaid award dated 05.11.2007, passed by the learned Additional District Judge, Shimla, H.P., in Land Reference No. 9-S/4 of 2005, Annexure P-2. 13. The petition stands disposed of in the above terms. (V.K. Sharma) Judge 1st May, 2012 (virender)