C.R.No.473 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.473 of 2011 Date of decision: 28.07.2011 Shri Ramesh Chand and others ….Petitioners Vs. M/s Tanmay Developers Pvt Ltd and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. B.S. Walia, Advocate for the petitioners. Mr. Sanjay Vij, Advocate and Ms. Aviti Sharma, Advocate for the respondents. Jaswant Singh, J Petitioners-land owners have approached this Court under Article 227 of the Constitution for setting aside the impugned order dated 25.11.2009 (P.11) passed by the learned Land Acquisition Collector, Gurgaon vide which application under Section 30 of the Land Acquisition Act, 1894 (for short “1894 Act”) filed by the respondent No.1 has been referred to the Reference Court for its disposal; in the alternative the further prayer is to modify the order dated 15.12.2010 (P.10) passed by the learned Reference Court and to treat issue Nos.3 & 5 as preliminary issues. Brief facts of the case are that the petitioners, who were owners in possession of land measuring 66 kanal 18 marlas situated in revenue estate of Village Kherki Majra, District Gurgaon, entered into an agreement C.R.No.473 of 2011 #2# to sell dated 22.7.2006 with respondent No.1-M/s Tanmay Developers Pvt Ltd at the rate of Rs.1.5 crores per acre out of which an amount of Rs.1,56,00,000/- was received as earnest money and the last date of bargain was fixed on or before 22.9.2006. It is necessary to mention here that with the consent of both the parties, the last date was extended to 23.10.2006 but the deal could not be materialized and the sale deed was not executed. Thereafter, a legal notice and counter reply thereof were issued to each other. It would not be out of place to say here that a part of the aforesaid land was subsequently subject to acquisition vide Notification dated 18.3.2008 for the purpose of constructing 150 meter wide road from Dwarka Township to NH8 and as such the petitioners received a notice dated 12.7.2008 under Section 9 of 1894 Act from the office of the Land Acquisition Collector, Gurgaon. Thereafter, the petitioners pursued the matter with respondent No.3-Collector regarding the non-receipt of compensation but no response was received. Subsequently, respondent No.1 filed an application under Section 30 of 1894 Act praying for withholding the compensation payable to the petitioners and to recover the amount of Rs.1 crores 56 lacs as earnest money paid to them along with interest. The learned Collector referred the dispute to the Additional District Judge, Gurgaon vide order dated 25.11.2009 for decision. Pursuant to the above mentioned order, proceedings were taken up before the learned Additional District Judge, Gurgaon and respondent No.1 filed reference petition (P.12) under Section 30 of 1894 Act. Petitioners filed written statement to the reference petition inter alia submitting that respondent No.1 had no right to invoke the jurisdiction C.R.No.473 of 2011 #3# under Section 30 of 1894 Act. Respondent No.1 filed replication and reiterated the claim made in the reference. Thereafter, petitioners filed an application Order 14 Rule 2 CPC dated 21.10.2010 for framing the preliminary issue on jurisdiction of the court and also the maintainability of the reference petition, which was opposed by respondent No.1 by filing reply dated 8.11.2010. After hearing both the sides, learned Additional District Judge rejected the framing of preliminary issues as proposed by the petitioners on the ground that the disputed questions of facts and law are involved under the issue of maintainability and jurisdiction, hence the present revision petition. Learned counsel for the petitioners has argued that respondent No.1 has failed to perform his part of contract and as such the agreement dated 22.7.2006 stood cancelled and the earnest money stood forfeited. Therefore, respondent No.1 having no right in the land is not entitled to any amount of compensation on account of acquisition, and thus the reference petition filed by respondent No.1 for apportionment was without jurisdiction. On the other hand, learned counsel for respondent No.1 has argued that they have paid an amount of Rs.1 crores 56 lacs as earnest money on 22.7.2006 and they were always ready and willing to perform their part of contract and it is the petitioners, who have failed to perform their part and thus respondent No.1 is fully entitled to apportionment of compensation to the extent of Rs.1 crores 56 lacs along with interest. After hearing learned counsel for the parties and perusing the paper book, I find some substance in the contentions of learned counsel for C.R.No.473 of 2011 #4# the petitioners but in view of the facts and circumstances, no interference is warranted against the order dated 25.11.2009 due to the following reasons. From the pleadings of the parties, following issues were framed by the learned Additional District Judge, Gurgaon on 15.12.2010: “1. As to who out of the petitioners and respondents No.3 to 6 is entitled for the compensation and in case both, in what proportionate?OPP 2. Whether petition has not been instituted by legal authorised person?OPR 3. Whether present petition is not maintainable?OPR 4. Whether petitioner has no cause of action to file the present petition?OPR 5. Whether this court has no jurisdiction to entertain the present petition?OPR 6. Relief.” To properly adjudicate the matter in controversy, it is necessary to reproduce Section 3(b) & 30 of 1894 Act, which read as under: “3. Definitions.- xx xx (a) xx xx (b) the expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land; 30. Dispute as to apportionment:- When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.” A perusal of provisions of Section 3(b) reveals that the expression “persons interested” includes all persons claiming an interest in C.R.No.473 of 2011 #5# compensation to be made on account of the acquisition of the land under the Act of 1894. Further Section 30 of 1894 Act envisages that when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court. Respondent No.1 is claiming the relief of apportionment of compensation on the basis of the agreement to sell dated 22.7.2006 (P.2),. It is the case of the petitioners that due to the failure of respondent No.1, the agreement to sell dated 22.7.2006 stood cancelled and the earnest money stood forfeited as per the terms and conditions of the agreement. Although, on the contrary, respondent No.1 is alleging that they were always ready and willing to perform their part of contract and it is the petitioners, who have failed to perform their part but it is a matter of evidence to be decided by Court of competent jurisdiction that who was the ready and willing to perform his part of contract and or not? The fact remains that the said agreement to sell admittedly is neither registered nor any possession of the land in question on the basis of said agreement was handed over to respondent No.1 and as such, respondent No.1 is not entitled to take the benefit either under the provisions of Indian Registration Act, 1908 or under Section 53-A of the Transfer of Property Act. Therefore, in the facts and circumstances of the case, prima facie respondent No.1 can neither be termed as person interested nor can claim any apportionment of compensation until and unless a declaration is granted by the Court of competent jurisdiction for specific performance of contract. Since the matter is subjudice before the learned Additional C.R.No.473 of 2011 #6# District Judge, therefore this Court is not expressing any final opinion in the matter on that count in view of the fact that the petitioners have already submitted to the jurisdiction of the learned Additional District Judge by filing reply to the petition under Section 30 of 1894 Act and issues have already been framed. It is an admitted fact that a substantial amount of compensation on account of acquisition of land has not been released to the petitioners-land owners whereas the other land-owners have already received the compensation, thus this Court is of the opinion that it will be appropriate if issue Nos.3 & 5 framed by the learned Additional District Judge, Gurgaon are treated as preliminary issues and decided as per law. Accordingly, keeping in view the facts and circumstances discussed hereinabove, this petition is partly allowed with a direction to the learned Additional District Judge, Gurgaon to treat issues No.3 & 5 framed in LAC No.11 of 2010 as preliminary issues and decide the same expeditiously as early as possible as per law. July 28th, 2011 ( JASWANT SINGH ) manoj JUDGE