R.F.A. No. 1067 of 1988 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.F.A. No. 1067 of 1988 Date of decision: September 03, 2008 Jit Singh and others .. Appellants. v. Union of India and another .. Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Hemant Sarin, Advocate for the appellants. Mr. Rajiv Sharma, Advocate for respondent No.1. Mr. Manohar Lall, Additional Advocate General, Punjab for respondent No.2. Rajesh Bindal J. This appeal is directed against the judgment dated 23.04.1988 passed by the Court of Additional District Judge, Bathinda delivered on a reference under Section 18 of the Land Acquisition Act, 1984 (hereinafter referred to as the ‘Act’) whereby the learned Additional District Judge, Bathinda dismissed the claim of the present appellants/claimants as time-barred. The facts leading to the present appeal are as under: Vide notification issued under Section 4 of the Act on 9.10.1974, a large chunk of land measuring 10768 bighas forming part of the revenue estate of District Bathinda was acquired for establishing a military cantonment. The Special Land Acquisition Collector, Jallandhar, pronounced the award on 11.06.1975. Some landowners, feeling dissatisfied with the award, moved the Special Land Acquisition Collector, Jallandhar for making a reference to the District Court under Section 18 of the Act and some of those references were disposed off in the due course. The present appellants/claimants who also owned land in the revenue estate of village Mehna Patti, District Bathinda claimed to have moved an application before the Special Land Acquisition Collector for making a reference to the District Court for enhancement of the compensation under Section 18 of the Act which as per their version was never referred by the authorities to the District Court. Consequently the present 1 R.F.A. No. 1067 of 1988 appellants/claimants moved this Court by filing a Civil Writ Petition No. 570 of 1982 submitting that they had filed application under Section 18 of the Act within the prescribed time which was not referred to the Court by the Land Acquisition Collector and prayed for a direction to the Land Acquisition Collector to make a reference of their claim in accordance with the provisions of the Act. This writ petition was disposed of in line with the orders passed by the Full bench of this court in Civil Writ Petition No. 5628 of 1982 (reported as Sher Singh v. Union of India, (1983) 85 PLR 86) wherein the court observed that as per the ratio of the full bench judgment of this Court in Guru Nanak University v. Dr. Iqbal Kaur Sandhu and Others, A.I.R. 1976 P & H 69, writ court is not and cannot be made a substitute for a regular trial for determination of contentions and disputed facts and as such the diametrically opposite contentions of the parties regarding the filing of application to make a reference, cannot be decided by court exercising writ jurisdiction. The following directions were made by the Court: “Accordingly, we would herein direct that on a proper application (precisely detailing his claim of having filed an application under Section 18 of the Act) made by the writ petitioner to the collector, the latter shall refer the same to the District Court, which will then proceed to decide the contentions in dispute between the parties, whether the stand of the petitioner herein is correct or otherwise. In the event of the matter decided in favour of the writ petitioner, the District Court would inevitably proceed to try and adjudicate on the reference under Section 18 of the Act.” In this writ petition, the Court also resolved another issue regarding the sustainability of the claim of the petitioners in case they had accepted the amount of compensation without an express protest, irrespective of the fact that they may have earlier preferred the reference under Section 18 of the Act. The Court observed that the filing of a reference application under Section 18 is in itself a recorded protest within the meaning of the provisos to Section 31(2) of the Act. The present appellants, on the strength of the above- mentioned order in the writ petition, filed application before the Land Acquisition Collector for making a reference, whereafter a reference was made to the Court of Additional District Judge, Bathinda. On the basis of the pleadings of the respective parties, the Court framed the following issues for the determination of the reference: 2 R.F.A. No. 1067 of 1988 “(1) What was the market value of the acquired land at the time of notification under Section 4 of the Act? OPA. (2) Whether a notice under Section 9 of the Act was served on the claimants and they did not file the objections, if so, its effect? OPR. (3) Whether the Land Reference is time barred? OPA (4) Relief.” The learned Additional District Judge, Bathinda decided the issue no. 3 against the appellants/claimants observing that the applicants in fact had not filed any application under Section 18 of the Act before the Collector for making reference at any point of time, much less within time. As regards, Issue No. 1, the Court observed that the learned counsel for the applicants had pressed into service certified copies of RFA no. 1543 of 1980 (Ex. AX/6) and RFA No. 1865 of 1979(Ex. AX/7) for establishing their claim for enhancement of compensation which certainly makes the applicants entitled for compensation but for the fact that they had not filed the application under Section 18 of the Act. The learned Court below in view of the findings on issue no. 3 dismissed the reference. Aggrieved by the judgment dated 23.04.1988 passed by the learned Court of Additional District Judge, Bathinda, the appellants preferred present appeal before this Court primarily assailing findings on issue no. 3 and praying for enhancement of compensation. In this backdrop, the foremost issue which requires scrutiny and determination in the present appeal is whether the findings of the learned Additional District Judge, Bathinda regarding the filing of the application for referring the matter to the court under section 18 of the Act within the prescribed period of limitation, are sustainable or not. The appellants herein have vehemently argued that the finding of the learned lower Court that the appellants had never filed the application under Section 18 of the Act is incorrect and based upon wrong appreciation of the law and evidence on record. The appellants' contention is to the effect that they had filed the application for making a reference under Section 18 of the Act to the Patwari who did not give them any receipt against those applications. AW4 Jit Singh has stated on record that the typed applications were placed on the table on the instructions of the Patwari who did not give any receipt regarding those applications and those applications were not entered in any register in their presence. On the contrary, the respondents contended that they never received 3 R.F.A. No. 1067 of 1988 any application under section 18 of the Act from the appellants and the same is not entered in any of their registers. The learned lower court had placed the burden to prove this issue on the appellants. But as per the observation of this Court recorded in Sher Singh's case (supra) in the peculiar facts of the matter a prima facie presumption can be raised that written application under Section 18 was preferred by the claimants and it would be open to the respondents to rebut the same. These observations of the full bench of this Court in Sher Singh v. Union of India are reproduced as under: “8. Reverting back, it has already been held that in the present writ proceedings it is inapt to decide and pronounce on the tangled question whether any reference application under Section 18 had been filed by the petitioner earlier on which point the parties are diametrically opposed to each other. However, it seems to be equally elementary that this dispute in its context of involving the valuable statutory rights of the claimants cannot be left in the limbo. It has to be carefully adjudicated and pronounced upon. Herein we were both surprised and distressed to notice the wholly chaotic fashion in which the valuable rights of the claimants in the context seem to be cavalierly treated at the ministerial level by the respondents. Learned counsel for the Union of India despite being repeatedly pinpointed to do so could bring no instruction or coherent rule and even a consistent practice in its Department to receive, diarise and transmit the references under Section 18 of the Act when filed by the landowners. The stand of the petitioner consistently, was that even when claimed and insisted upon, no receipt or acknowledgement for filing the reference under Section 18 was issued by the office of the Collector. This was not denied on behalf of the respondents, and not only that, no firm procedures for dealing with that could be spelt out. The respondents produced a register in which some erratic entries about the receipt of some references under Section 18 had been made. Curiously the printed columns of the register pertained to matters altogether different, and which indeed have little or no relevance at all to land acquisition cases. It would appear that this is nothing more than an impromptu record kept by wayward officials at their whim with regard to receiving and diarizing of references under Section 18. 4 R.F.A. No. 1067 of 1988 9. The very look of this register shows that it is neither in proper form nor has it been maintained with any regularity. There is no page marking, nor the purpose for which it is maintained is indicated anywhere. In fact, as is evident from the columns it is s stock register meant for Patwaris for entering the articles used for measurements and almirahs and boxes in their custody. Even the irrelevant headings of the columns had not been corrected. Most of the pages have been left blank with cross-marks. Entries appeared to be made in the most reckless and casual manner. These are neither date-wise nor village-wise. For instance, entries nos. 2 to 37 and 47 to 49 bear no date whatsoever. Sometimes there is a gap not merely of days but of months together betwixt several entries. In between the entries under the date of 11th October, 1973 there are a few entries dated the 11th October, 1971. After several entries pertaining to the year 1974 immediately entries in the months of May and June, 1975 have been made. Curiously these are then followed by the entries of 1974 again. Thereafter come two entries of 1977 followed by some of 1978. Surprisingly, after 1978 again one finds some entries relating to the year 1976, then of 1978 and yet again of 1975. These are followed by those of 1976 and 1978. If, as alleged by the respondents, it is a receipt register then entries could only have been date-wise and cannot possibly be in so topsy- turvy and haphazard manner, as noticed above… 10. Learned Counsel for the petitioner then brought to our notice the Standing Order 28 of the Financial Commissioner with regard to land acquisition. Paras 131 and 132 and the prescribed forms therein lay down a mandate on the concerned officials of the Department to maintain a proper and true record of the receipt, transmission and ultimate orders passed in references under Section 18 as also other connected matters with regard to acquisition and compensation. This enjoins the maintenance of a missal band register, that is, a regular stitched register for this purpose. It, however, appears that these directions have either passed into oblivion or are being honored wholly in breach and in any case the respondents not only seems to be unaware thereof but even claimed that these were not applicable. We, therefore, cannot but direct a 5 R.F.A. No. 1067 of 1988 strict compliance with these instructions which are binding and mandatory on the respondents. 11. …In the absence of a clear cut procedure on behalf of the respondents and the glaring failure to maintain the prescribed record, it may well be presumed prima facie that written application under Section 18 was preferred. However, this obviously cannot be conclusive and it would be open to the respondents to rebut the same…” These observations of this Court Sher Singh's case (supra) were also relied upon in a subsequent judgment of this Court in Hamir Singh v. Union of India and another, 1989(2) PLR 657, in an appeal based on similar facts and circumstances as contained in the present appeal arising out of the same notification dated 09.10.1974 for acquisition of land in District Bathinda, wherein it was observed as under: “It is rather tragic that in spite of a clear-cut observation made in the judgment that (the relevant part has been underlined) that the burden was on the respondent Union of India to rebut satisfactorily that the claimants had failed to file their applications under Section 18 of the Act, the Court proceeded to examine the matter from an angle as is the appellants had to establish the exact date and time of filing their applications.” It is thus, amply explicit that the approach of the learned lower Court in placing the entire burden to prove on the appellants was wholly misguided and the actual burden was on the respondents to satisfactorily rebut the claim of the appellant that they had filed their applications under Section 18 of the Act. In this context, the entire evidence on record requires to be re- appreciated while giving due regard to the evidence, if any, led by the respondents for rebutting the presumption that the appellants had in fact filed the application for making reference under Section 18 of the Act. The appellants/applicants had produced four witnesses, namely, AW1 Joginder Singh, Patwari; AW2 Balwinder Kumar, Clerk, office of the Naib Tehsildar, Millitary Land Acquisition, Bathinda; AW3 Ram Sarup, retired Tehsildar; and 6 R.F.A. No. 1067 of 1988 AW4 Jit Singh applicant. The respondents had produced three witnesses, namely, RW1 Paramjit Singh, Patwari, Office of the Millitary Land Acquisition, Bathinda; RW2 Surain Singh, PEshi Kanungo, SLAC, Jallandhar; and RW3 H.S.Sodhi, Sub-Divisional Officer (Civil), Jullandhar. AW1 Joginder Singh deposed that at that time there was no clerk in their office and that they were not issuing any receipt against the applications. AW2 Balwinder Kumar clerk deposed as follows: “This register pertains to the receipt of application under section 18 of the Act as well as objections and claims under section 9 of the Act. This register is not page marked. There are seven columns in the register. First column is regarding serial number, second column is pertains to subject Basta da Nam, third column pertains to ‘saman den di miti’, fourth column pertains to ‘april de mahine halat’, fifth column pertains to ‘signatures of patwari and Shaman di Jimewari’, sixth column pertains to ‘Bastu Kharaj kiti gai’ and seventh pertains to remarks. The heading of the register is regarding measurement and material and Almirah and boxes. I cannot say whether this register pertains to Stock register. There are so signature of any official of the department against any entry in the register. The entries regarding the receipt of application under section 18 of the Act regarding Mehna in the register are by some different hands. There are so many pages left blank with cross marks in the register. The register is not village wise. Last entry dated 21.08.1975 is 210 is of Sunder Devi regarding the receipt of application under section 18 and then after 26 pages Bathinda was again started with serial no. 1 regarding receipt of application under section 18 and the entry of Jagwant Singh son of Bishan Singh dated 27.07.1975, is mentioned as the date of the receipt of application and further it is written that the date of entry is 28.09.1978, and similarly there are entries at serial no. 2,3 and 4. Regarding entry no. 5 the application was mentioned received on 01.08.1975 and the date of entry is 28.09.1978. the register has been impounded. There are dated against fist entry i.e. 19. In other entries the date has been dittoed. There is no date against the entry no. 2. There is a date on serial no. 27 and all the entries upto and even the entry 37 has been dittoed. The signature of the official of 7 R.F.A. No. 1067 of 1988 the department are not there in the beginning or at the end of the entries made in the register. There is no seal or stamp affixed by any official in the register. Name and designation of the officer is not mentioned in the register, under whose instructions the entries are made. … The dates of the register are villagewise, but entries in the register are some times of 1971 to 1975 then 1978 and then again 1973, 1974.” He further deposed in his cross-examination that: “…I do not know whether there are claimants whose claims have not been presented. Again said I know the names of some of the claimants whose claims have not been presented in the Court.” Further, RW 1, RW 2 and RW 3 have stated that they did not receive any application for reference and that the claimants did not file any such applications. The RW’s have not produced any record to fortify their deposition in the form of any official record or register maintained by their office in due course and have baldly made the deposition. In view of the above-noted depositions, the chaotic and haphazard working in the office of Millitary Land Acquisition, Bathinda has been proved threadbare. The office of Land Acquisition at Bathinda and the office of Naib Tehsildar, Bathinda were not maintaining proper register as per the instructions of the Financial Commissioner for recording the applications received by the officer for making reference under Section 18 of the Act. The conclusion of the learned lower court that the claimants did not file any application is not acceptable in absence of any official record which could be relied upon by the court below for rebutting their averment. The two material witnesses examined on behalf of the respondent i.e. RW2 and RW 3 have simply stated that since the names of the applicants did not figure in the registers maintained for the purpose, no reference applications were filed by the claimants under Section 18 of the Act. In face of this non-committal evidence of the respondents, the positive stand of the appellants that they had filed the applications within the time prescribed, cannot be said to have been rebutted in any manner. I, therefore, have no hesitation in setting aside the impugned order passed by the learned Court below. It is then accepted by the learned counsel for the parties that all other issues pertaining to the adequacy or the fairness of the compensation 8 R.F.A. No. 1067 of 1988 payable to the appellants have been decided in their favour. As a matter of fact, for determining the market value of the acquired land, the lower court has depended upon the decisions of this Court in R.F.A. No. 1865-- Maghar Singh and another v. Union of India, decided on 8.8.1980 and R.F.A. No. 1543 of 1980 –Gurdev Kaur v. Union of India, decided on 7.10.1981. However, the issue regarding payment of compensation to the land owners arising out of the same acquisition was subject matter of L.P.A. No. 279 of 1982 –Kartar Singh and others v. Union of India, wherein this Court, vide judgment dated 8.12.1982, fixed the following rates of the acquired land: (i) For land upto a depth of .... Rs. 15/- per sq. yard. 500 meters along the Municipal limits (ii) For rest of the acquired land .... Rs. 8/- per sq. yard. It deserves to be noted here that the above noted judgment in Kartar Singh's case (supra) has been affirmed by their Lordships of the Supreme Court in Bhag Singh and others v. Union Territory, Chandigarh, AIR 1985 SC 1576. Therefore, the appellants are held entitled to compensation at the rate as assessed by this Court in Kartar Singh's case (supra). They shall also be entitled to statutory benefits under the Act. Deficiency, if any, in the court fee be made good. (Rajesh Bindal) Judge 3.9.2008 mk 9