CWP NO.11146 OF 2007 & other connected matters 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP NO.11146 OF 2007 & other connected matters Date of decision: 14.6.2010. Sushila Devi ...Petitioner Versus The State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: For the petitioner(s): Mr.Ashwani Kumar Chopra, Sr. Advocate with Ms.Roopa Pathania, Advocate and Mr.Vinod S. Bhardwaj, Advocate. For the respondent(s):Mr.Mahavir Sandhu, Advocate, Mr.R.S.Chahar, Advocate and Mr.Alok Jain, Advocate. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? -.- JITENDRA CHAUHAN, J. 1. This judgment shall dispose of a bunch of 30 petitions, out of which 23 have been filed by the Karnal Improvement Trust, while 7 have been filed by the claimants. The writ petitions have arisen out of a common judgment rendered by the Tribunal, while disposing of different references filed by the petitioners. However, the facts are being extracted for facilitation from CWP No.11146 of 2007. 2. Before adverting into the merits of the case and discussion thereupon, it is necessary to detail out the fact in brief disclosing CWP NO.11146 OF 2007 & other connected matters 2 chronology of events leading to the filing of the instant petition before this Court. 3. The brief facts of the case are that the land(s) of the petitioners were acquired by the respondent No.2-Improvement Trust, Karnal (for short `Trust') under Scheme No.37 in pursuance of Resolution passed by the Trust, dated 20.8.1973, which was a part of total area measuring 12150 sq. yards. This area was previously known as old Subji Mandi. A notification under Section 36 the Punjab Town Improvement Act, 1922 (for short `the Act'), was issued on 7.9.1973 which was followed by notification under Section 42 of the Act on 14.1.1976. 4. According to the averments made by the petitioners in the writ petition, the entire property acquired under the aforesaid Scheme was situated within the heart of the city and within the municipal limits, in the area of Subji Mandi. Four shops alongwith `Phar' land of the petitioners together with other owners of the land were acquired under the above Scheme. The Land Acquisition Collector vide Award dated 24.5.1976 determined the market value of the acquired property which was situated and abutted G.T. Road @ Rs.200/- per sq. yard and the property situated in old Subji Mandi @ Rs.100/- per sq. yard. No compensation was awarded to the petitioners and other land owners in respect of the land being used as `Phar' i.e. vacant land in front of their shops left for the purpose of storing, selling and conducting the auction of vegetables in the Sabzi Mandi. No compensation was awarded to the present petitioners by the Land Acquisition Collector in respect of their built up shops directing that the petitioners will be allotted four shops sites/plots on payment of Rs.5,000/- per plot as per undertaking given by respondent No.2 before this Court. CWP NO.11146 OF 2007 & other connected matters 3 5. The Scheme provided for allotment of land to the erstwhile land owners in lieu of land acquired by the Trust. The Trust allotted land to them but the petitioners were not allotted any land under the Scheme. The petitioners challenged the action of the respondent No.2 by filing Civil Writ Petition No.6627 of 1975 titled `Sushila Devi etc. vs. State of Haryana', wherein, the respondent-Trust appeared before this Court and made a statement, which reads as under:- “Ld. Counsel for respondent No.1 states that the scheme has been sanctioned by the State Govt. and the petitioners will be treated like all other owners of the shop or premises who are being dispossessed under the scheme, in the matter of allotment of shops or plots. On this assurance being given, Mr.Mittal does not press this petition which is dismissed as infructuous.” 6. Keeping in view the statement made on behalf of Karnal Improvement Trust, the CWP No.6627 of 1975 was rendered infructuous. 7. Subsequently, the petitioners were allotted four plots on payment of Rs.5000/- per plot as development charges with the following details:- (a) Petitioner No.1 Sushila Devi had been allotted two plots bearing No. 56A and 73 measuring 73 sq. yards. (b) Petitioner No.2 Brij Mohan was allotted land measuring 30.5 sq. yards bearing plot No.44. (c) Petitioner No.3 Mukesh Kumar was allotted land measuring 30.5. sq. yards bearing plot no. 45. 8. The allotment letters are Annexures P-1 to P-4, which were exhibited before the learned Tribunal as A-65 to A-68. CWP NO.11146 OF 2007 & other connected matters 4 9. The petitioners aggrieved by the aforesaid allotment, filed three separate Civil Writ Petitions bearing Nos. 2415 of 1977 titled as Mukesh Kumar vs. State of Haryana, 3305 of 1977 titled as Sushila Devi vs. State of Haryana and 3824 of 1977 titled as Brij Mohan vs. State of Haryana, on the ground that the total area of the petitioners was 375 sq. yards, whereas they have been allotted four plots measuring 134 sq. yards only. Hence they had not been given allotment as per the Scheme and in lieu of the land owned by the petitioners. All the three afore-stated writ petitions were disposed by a common judgment dated 29.8.1985. The operative portion of the judgment reads as under:- “In these three petitions Nos. 2415, 3305 and 3824 of 1977, the primary relief claimed by the petitioners is that they should have been allotted plots as oustees under Scheme No.37 of the Improvement Trust, Karnal instead of the one's which have been allotted to them now under a different scheme. It is the conceded position that all these petitioners have since sold the shops allotted to them and are thus no more in a position to surrender back the possession of those shops to the Improvement Trust Karnal even if their claim is to be accepted. In the light of that the petitions obviously have been rendered infructuous and are dismissed but with no order as to costs. It is stated for clarification sake that the dismissal of these petitions would not in any way effect the claim of the petitioners for the compensation which may be due to them in accordance with law.” 10. According to the petitioners, in the reply filed by the CWP NO.11146 OF 2007 & other connected matters 5 respondents in the above-mentioned three writ petitions, they have maintained that in fact the petitioners were owners of 142 sq. yards, which was covered area of the shops and they are not owner of the `phar'. They have not been allotted the area equivalent to their acquired land for the aforesaid reason. The controversy regarding the ownership and title of the `Phar' was left open by this Court as reference was pending before the learned Tribunal at Karnal. Meanwhile, respondent No.2 started pressing petitioner No.1 for the payment of 2 sq. yards area allotted to her in excess . Accordingly, a letter dated 15.5.1986, Annexure P-7, was issued to her which was challenged by her by filing CWP No. 386 of 1987. She argued that the question of title regarding `Phar' was yet to be decided and at that stage, it could not be decided by the Trust as to whether the area measuring two sq. yards is in excess or not. This Court while issuing notice of motion, vide order dated 23.1.1987, stayed the recovery of payment with regard to the excess area allotted to petitioner No.1. Meanwhile, land references pending before the Tribunal at Karnal came to be decided vide consolidated judgment dated 20.1.1988 titled as `Kartar Singh vs. State of Haryana', whereby value of the acquired land was fixed @ Rs.1336/- per square yard and the `Phar' area was declared as the `street'. Some more pending references were also decided by the same Tribunal, wherein different rates for different land owners were fixed. 11. The petitioners and others filed different writ petitions, which were clubbed together with Civil Writ Petition No.3489 of 1988 titled as `Vijay Kumar etc. vs. State of Haryana' which were ultimately disposed of vide order dated 15.9.1989, Annexure P-10. This Court maintained the value of the land at Rs.1336/- per sq. yard uniformally for all the claimants CWP NO.11146 OF 2007 & other connected matters 6 and also held that the title of the Phar land vest with the owners and they are entitled to compensation for the said land at the same rate. 12. Aggrieved against the order, Annexure P-10, the Trust preferred LPA No. 1044 of 1990 which was dismissed vide order dated 29.4.1991 (Annexure P-11). The Trust thereafter preferred SLPs before Hon'ble the Supreme Court, which were segregated into two different bunches. The bunch comprising 20 SLPs raised a question of title regarding the Phar area. A common question of rate of the acquired land was raised in all the SLPs. The first bunch of cases involving question of title regarding `Phar' land was decided on 11.9.1991 (Annexure P-12) and the main judgment was delivered in Civil Appeal Nos.3608 and 3614 of 1991 arising out of S.L.P. No.11059/91, 11398-99/91, 11403-06/91, 13375/91, 13487/91 and 13488-90/91 titled as `Karnal Improvement Trust, Karnal vs. Leelawati and others etc.' The matter was remanded to the Tribunal for deciding the question of title as regards `Phar' area and its possession at the time of issuance of notification under Section 36 of the Act. Annexure P-12 is re- produced hereunder: “Leave granted. By the impugned judgment of the Division Bench of the High Court, the order of remand made by the learned single Judge was affirmed. The learned Judge had held that the disputed phar belonged to the claimants who are respondents in these appeals and that they were entitled to compensation when the land was acquired under the Punjab Town Improvement Act, 1922. According to the appellants, the phar was a public property and the respondents had no right or interest in that property apart from their status as members of the public. The appellants contend that the High Court was wrong in holding that the respondents were entitled to compensation for the CWP NO.11146 OF 2007 & other connected matters 7 acquisition of the phar. According to the claimants/respondents the phar was private property owned by them. They say that as early as 1920 the character of this property had been considered and decided by the privy council. It was held that the phar was private property, although a portion of the land lying in front of the phar had been converted into a public road. Counsel appearing for the respondents say that a number of documents relating to title had been led in as evidence. But these documents have not been examined to trace title and possession. We have heard counsel on both sides at length. We are not satisfied that the question of title and possession has been properly examined. The title over the phar has to be traced at least from the time of the decision of the privy council right through the years when the whole or part of the property came into possession of the custodian of evacuee properties and the subsequent changes of possession and ownership. In other words, the entire evidence, both documentary and oral, concerning the title and possession over this property from the period anterior to the partition of India must be considered and the position regarding title and possession at the time of acquisition has to be decided. The High Court in our view was wrong in holding that the property belonged to the present respondents without a proper consideration of the evidence. In our view, the whole question has to be re-examined by the Tribunal and the parties should be afforded an opportunity to lead additional evidence, if they so desire, on the question of title and possession and other connected matters relating to the property. In the circumstances, we set aside the findings of the Tribunal as well as the order of the High Court and direct the Tribunal to reconsider the question as aforesaid as regards the phar and pass appropriate orders. It will be open to the parties to urge all their contentions relating to title and possession of the property. We are not expressing any view on any of the CWP NO.11146 OF 2007 & other connected matters 8 questions raised in these appeals and they are left open. The parties shall appear before the Tribunal on 7th November, 1991 for further directions of the Tribunal. The appeals are disposed of accordingly.” 13. The bunch of other SLPs was also disposed of vide judgment dated 9.5.1995 (Annexure P-13) titled as 'Karnal Improvement Trust, Karnal vs. Parkashwanti and others' and the matter was remanded to the Tribunal on the ground that the Presiding Officer alone was not competent to assess the market value and as such, the award passed by the learned Tribunal is nonest and illegal. The observations made in Paras 13 and 26 of Annexure P13 are re-produced hereunder: “13.The question thus arises whether the function by the Tribunal as a body is mandatory or directory? The discharge of the duties under the Act are quasi judicial. The power to determine compensation and other questions involves adjudication. The discharge of the functions by the Tribunal being quasi judicial cannot be regarded as ministerial. When the statute directs the Tribunal consisting of three members to determine compensation etc. and designates an award as judgment and decree of a civil court, it cannot be held that the quasi judicial functions of the Tribunal would be considered as directory, defeating the very purpose of the Act. Though inconvenience and delay may occasion in some cases by holding the provisions to be mandatory, but that is inescapable consequence. In the light of the aforesaid discussion, it must be held that the adjudication by the three member Tribunal is imperative and mandatory determination of the compensation in disregard thereof renders the adjudication void, invalid and inoperative.” “26. The appeals are, therefore, allowed, the judgment of the High Court and the awards of the Tribunal are set aside. The Tribunal shall decide the dispute in accordance with law as CWP NO.11146 OF 2007 & other connected matters 9 stated earlier. Several questions on merits had arisen but since not allowed to be canvassed, we are not expressing any opinion on merits. All the questions are kept at large to be dealt with in accordance with law. No costs.” 14. In pursuance of the remand orders, the Tribunal restricted itself only to the aspect of ownership and possession of the phar land as per the directions of the Hon'ble Supreme Court in its order dated 11.9.1991. The learned Tribunal, after considering the documentary and oral evidence available on record, recorded the finding that the claimants and also their predecessors in interest have been proved to be the owners of the phar land acquired in these cases and the claimants were also proved to be in possession of the same through their tenants right from the year 1854 till acquisition thereof and that the claimants are entitled to claim compensation in respect of the phar land which is either in the shape of open land or as courtyard. The learned Tribunal upheld the rate of compensation in respect of the acquired Phar area at the rate of Rs.1336/- per sq. yard as had been awarded earlier by the learned Tribunal vide its award dated 20.1.1988. 15. The second bunch of SLPs that had been remanded by the Hon'ble Supreme Court were also decided by the Tribunal vide its award dated 8.2.2003. The learned Tribunal allowed all the references and held that the petitioners are entitled to claim compensation in respect of their acquired property at the rate of Rs.1336/- per sq. yard as also solatium at the rate of 30%. In addition thereto the claimants were also entitled to interest at the rate of 9% per annum for a period of one year from the date of taking possession and at the rate of 15% per annum from the subsequent period till the date of payment. The copy of the award is on record as Annexure P-15. 16. The aforesaid award of the Tribunal dated 4.5.2002 was CWP NO.11146 OF 2007 & other connected matters 10 challenged by the Improvement Trust before this Court by filing CWP No.13031 of 2002 titled 'Karnal Improvement Trust Vs. Ram Parshad and others'. It was principally argued on behalf of the Karnal Imprvement Trust that the Tribunal ought to have re-examined all the questions and should not have restricted itself only to the point of ownership of the Phar land. This Court while concurring with the argument raised on behalf of the Improvement Trust in its judgment dated 24.7.2003, Annexure P-16, set aside the award passed by the learned Tribunal and directed as under:- “In the result, the writ petition is allowed. The impugned award is set aside and the Tribunal is directed to decide the references afresh and deal with all the questions raised before it by the parties. It is once again clarified that as a result of the order of the Supreme Court dated 9.5.1995 the earlier awards of the Tribunal dated 20.1.1988 and 21.2.1989 do not exist in the eye of law and the Tribunal has to proceed with the reference denovo. The parties are directed to appear before the Tribunal on 1.9.2003. It is expected that the Tribunal shall pass afresh award within a period of four months from 1.9.2003.” 17. It is worthwhile to add that the award of the Tribunal dated 8.2.2003 (Annexure P-15) was also set aside by this Court vide order dated 20.10.2003 by observing that the market value had been determined in view of the order passed in Kartar Singh's case which had been set aside and the cases were remanded for fresh decision. 18. Pursuant to the order passed by this Court, the matter was taken up by the learned Tribunal and both the parties were given opportunity to adduce additional evidence. The claimants did not lead any other evidence. CWP NO.11146 OF 2007 & other connected matters 11 However, award dated 18.10.1997, copy of order dated 29.1.2002 passed in CWP No.6031 of 1998 and copy of the judgment dated 10.2.1999 passed in RFA No.3192 of 1993 were tendered. The parties got their statements recorded that the evidence which had already been recorded be read for the purposes of decision of the references. 19. After considering the documentary and oral evidence, the learned Tribunal assessed the market value of the property on the date of its acquisition at Rs.580/- per sq. yard. Further, on the issue of ownership of the petitioner over the Phar land, the learned Tribunal observed that the claimants had proved that they were owners of the built up portion as well as the vacant land. But since the vacant land was being used by general public it would amount to dedication of the said vacant land by the claimants to the general public and consequently it shall fall within the definition of 'Street' as defined under Section 2 (23) of Haryana Municipal Act, 1973. 20. The learned Tribunal also examined the question of the price of allotment of the shops and directed that the allottee should pay a sum of Rs.2325/- per sq. yard as the price for the allotted plots/shops. 21. Aggrieved of the award of the Tribunal dated 28.9.2004, Annexure P-17, the improvement Trust as well as the claimants are in the writ petitions before this Court. 22. The main grievance raised in the instant petition by the Improvement Trust was that the award with respect to the price of allotment is beyond jurisdiction and that the rate of Rs.580/- per sq. yard is on the higher side. On the other hand grievance raised by the petitioners-claimants is that the Tribunal committed an error in holding that the phar area has CWP NO.11146 OF 2007 & other connected matters 12 become a public street by way of dedication and also that the Tribunal could not have determined the price of the allotment of shops/plots and that the learned Tribunal awarded compensation which was much less than the prevailing market value at the time of acquisition. 23. Written statement has been filed on behalf of respondents No.1 and 2, taking preliminary objection that the disputed question of facts is involved in the present writ petition which cannot be gone into by this Court under Articles 226/227 of the Constitution and, have prayed for dismissal of the writ petition. On merits, it has been admitted that the acquired area is 12150 square meters and not square yards. Further the petitioners are not entitled to any compensation of the vacant land in the form of 'Phar' as alleged. Rest of the paras are admitted being matter of record. It is further stated that petitioner No.1 was asked to pay an amount of Rs.3691/- against Plot No.56 and 73 for the area of 2 sq. yards which was in excess of the area allotted to her. 24. It is in this background of the case, Mr.Chopra, learned senior counsel for the petitioners, has argued that the order of the Tribunal dated 4.5.2002, Annexure P-14, passed after the order of remand by the Hon'ble Supreme Court, wherein it has been specifically mentioned that half of the `ganj area' in Karnal, including the area in question, was purchased in the year 1854 in an auction from the Central Government by Pali Mal and Bansi Lal, predecessor-in-interest of Sumer @ Baru Mal. Learned counsel has further argued that the land in question was purchased in three lots, of 2395 sq. yards, of 2395 sq. yards and 140 sq. yards and the physical possession of the land in question was given to aforesaid persons, as is clear from the reading of Exhibits A-60 and A-61. CWP NO.11146 OF 2007 & other connected matters 13 25. Learned counsel has further argued that as per site plan, Exhibit P1/1, it is made out that by sale-deed dated 15.12.1932, Exhibit P-1, Tara Chand and Asa Ram, the predecessors-in-interest of the petitioners, purchased the property from the aforementioned Sumer Chand @ Baru Mal. This fact is duly recorded in sale-deed, Exhibit, P-1, and stands accepted in the case of Kartara Singh as is evident from the reading of Exhibits A-3 to A-4, which is also reflected in the site plan Exhibit P1/1. 26. Further reliance has been placed upon the Exhibits A-15 to A- 34, A-36 and A-46, from which it is made out that the area in question, i.e., the court yard/phar land was given on lease by the petitioners to different persons. It has also been submitted that in the statement of Gurbax Singh RW/3, who was examined by the Trust, it has been admitted that the `Phar' in front of the shop was in possession of the owners. The relevant portion of the statement of Gurbax Singh, RW/3 is as under:- “.......I was a tenant in a shop owned by Tara Chand at a monthly rent of Rs.55/-. XX XX XX XX XX XX. The shop again said there were five partners in the firm Bodh Raj Gurbax Singh. The rasta was maintained by the occupants of the shops as it was laid by the occupants. The business in Subzi Mandi mentioned above was not so well as in the market on the G.T.Road at that time. Till demolition, firm Bodh Raj Gurbax Singh was in possession of the said shop. XX XX XX XX XX XX XX XX XX XX XX XX XX The Phar in front of the shop was in our possession and user. XXXmn:- The tenancy with regard to the shop and the phar was one.” CWP NO.11146 OF 2007 & other connected matters 14 27. Mr. Bhardwaj, learned counsel for the claimants, while supporting the submissions made by Mr.Chopra, has placed reliance on