IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 24.08.2010 C.R.No.2811 of 2000 State of Haryana ...Petitioner Versus Jai Dev ...Respondents Present : Mr. Aman Chaudhary, Addl. AG, Haryana, for the petitioner. Mr. Shailendra Jain, Advocate, for the respondent. C.R.No.4062 of 2000 State of Haryana ...Petitioner Versus Shiv Kumar and others ...Respondents Present : Mr. Aman Chaudhary, Addl. AG, Haryana, for the petitioner. Mr. Ashok Arora, Advocate, for the respondents. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HEMANT GUPTA, J. This order shall dispose of C.R.No.2811 of 2000 and C.R.No.4062 of 2000 directed against the orders passed by the learned Addl. District Judge, Hisar on 29.01.2000 and 19.08.2000 respectively. Vide the aforesaid orders, the learned Addl. District Judge has allowed an application in execution petition to award the same amount of compensation to the respondents as has been awarded to the other land-owners. C.R.No.2811 of 2000 Since the issue is identical in both the petitions, therefore, the same are taken up together. However, for facility of reference, the facts are taken from C.R.No.2811 of 2000. 22 Kanals 2 Marlas of land was intended to be acquired by the State Government vide notification dated 19.05.1992 issued under Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act’). The Land Acquisition Collector awarded Rs.3 lac per acre as the compensation of the acquired land vide its award dated 17.05.1995. The other co-sharers namely Daulat Ram, Smt. Sarti, Jai Singh and Richhpal sought reference under Section 18 of the Act for claiming enhancement of compensation. The reference Court assessed the market value of the acquired land at the rate of Rs.235/- per square yard besides giving statutory benefits. The respondent herein i.e. Jai Dev did not seek any reference under Section 18 of the Act, but filed an application in execution petition to claim compensation at the same rate as has been awarded to the other land- owners on the ground that he is a co-sharer to the extent of 1/24th share in the joint khewat of 22 Kanals 2 Marlas. The learned trial Court relied upon the judgments of this Court reported as Punjab State Vs. M/s Globe Motors Ltd. and another 1981 PLJ 73, State of Haryana Vs. Bishan Singh and others 1981 PLJ 40 and Sh. Harmant Singh and anothers Vs. Land Acquisition Collector, Gurgaon and others 1987 PLJ 22, to return a finding that as a co-sharer, the respondent is entitled to the same amount of compensation as has been awarded to his other co-sharers. It is the said order, which is challenged by the State in the present revision petition. Learned counsel for the petitioner has vehemently argued that the other co-sharers have sought compensation in respect of their specific share. It is contended that though a co-sharer can represent the interest of 2 C.R.No.2811 of 2000 the other co-sharers, but when a co-sharer has restricted his claim in respect of his share alone, the other co-sharers cannot claim the same compensation as has been awarded to the other co-sharers. It is contended that each of the co-sharer is an owner in his individual right. He is entitled to compensation in his own right and also seek reference to claim enhancement. The reliance is placed upon Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528 and Ram Chander Vs. Bhim Singh and others, 2008 (3) RCR (Civil) 685 (Full Bench). Learned counsel for the petitioner has referred to para No.1 of the reference application under Section 18 of the Act and the prayer in support of his argument, which read as under : “1. That applicant No.1 was owner in possession of land to the extent of 1/8th share while applicants No.2 to 4 were owners in equal share to the extent of 1/8th share in the land fully detailed and described in the head note of this application. The applicants being owners in possession of the land were interested persons within the meaning of Section 18 of the Land Acquisition Act to file the application for reference of the matter to the Court.” “Under the circumstances, it is prayed that the reference be made to the competent Court for adjudication and for determination of the exact khasra numbers of the acquired land of the applicants with its correct area and for enhancement of the compensation payable to the applicants in respect of the acquired land and buildings and other structures standing thereon, besides the compensation on account of severance of holdings. The applicants be also awarded interest on the enhanced compensation besides the additional amount of 12% per annum calculated on such market value and 30% solitium as provided under Section 23-A (1) of the Land Acquisition Act, 1894. (Emphasis supplied….)” 3 C.R.No.2811 of 2000 Learned counsel for the petitioner also refers to the judgments of Hon’ble Supreme Court reported as Ramesh Singh (Dead) by LRs and others Vs. State of Haryana and others (1996) 4 Supreme Court Cases 469, Irshad Ali and others Vs. Hazi Abdul Sukhur Mazumdar and others (1997) 7 Supreme Court Cases 88, Smt. Ambey Devi Vs. State of Bihar and another (1996) 9 Supreme Court Cases 84 and also a Single Bench judgment of this Court reported as State of Haryana Vs. Rumal Singh 1994 (1) PLR 169. It is contended that merely because one of the co-sharer has got higher compensation, the other co-sharers do not automatically get the same compensation unless the remedies provided under the Act are availed of. It was held in Ramesh Singh’s case (supra) to the following effect : “5. ….. Merely because one of the claimants had got higher compensation unless the remedies, as provided under the Act, are availed of. One of the remedies under the Act is Section 28-A; if it is available according to law. Determination of higher compensation in favour of some claimants or so-called co-owners and denial thereof to other claimants is not violative of Article 14 of the Constitution. The subject-matter having been regulated under the provisions of the Act, the right and remedy for higher compensation should be sought and had only under the Act. The principle of equality of Article 14 cannot be extended in that behalf.” In Ambey Devi’s case (supra), it was held to the following effect : “4. ….. It is an admitted position that the co-owner filed an application and had sought reference under Section 18 in respect of his share only. So, it is, as a fact, claims for compensation in specie and was paid towards 1/4th share to the claimant. By no stretch of imagination, the application under 4 C.R.No.2811 of 2000 Section 18(1) by one of the co-sharers would be treated as one made on behalf of all the co-sharers. Accordingly, we hold that the appellant is not entitled to lay any higher compensation pursuant to an award made by the Reference Court under Section 26 at the instance of one of the co-owners.” In Irshad Ali’s case (supra), a co-owner was found entitled to 1/3rd share of the acquired land. The claimant sought reference under Section 18 of the Act, but the first appeal before the High Court was preferred by another co-owner. Thereafter, the appellant sought compensation as awarded to the other co-owners by filing review petition and the same was dismissed. In Special Leave Petition, the Hon’ble Supreme Court found that since the award of the reference Court has not been challenged, the appellant is not entitled to higher compensation. On the other hand, learned counsel for the respondent(s) relies upon A. Viswanatha Pillai and others Vs. Special Tahsildar for Land Acquisition No.IV and others, AIR 1991 SC 1966 and Jalandhar Improvement Trust Vs. State of Punjab and others (2003) 1 SCC 526, to contend that a co-owner has undivided share in the entire property, therefore, amount of compensation awarded in respect of one co-owner would be the amount of compensation in respect of the other co-owners. Thus, the respondents have been rightly granted compensation on the basis of parity of compensation granted in favour of the other co-owners. I have heard learned counsel for the parties and find that the order passed by the learned Executing Court suffers from patent illegality or irregularity. The respondent(s) was not party in a reference before the learned District Judge under Section 18 of the Act. Since the respondent was not a party in the execution proceedings, he could not claim 5 C.R.No.2811 of 2000 compensation on the basis of a compensation awarded to the other co- owners. From the averments made in the reference application, it is apparent that the other co-owners, who sought reference under Section 18 of the Act were not claiming compensation for the benefit of all the co-owners. Their claim was personal restricted to the extent of land owned by them alone. Therefore, in the absence of the respondent being party to the reference, the Executing Court could not travel beyond the order rendered by the reference Court to return a finding that the respondent is entitled to the same compensation as has been awarded to other co-owners, who were party in the reference petition. In A. Viswanatha Pillai’s case (supra), it was found by the Hon’ble Supreme Court that the co-owner has sought reference not only in respect of his share, but in respect of other brothers as well. The paragraph extracted below will show the findings that a co-owner as entitled to compensation awarded to the other co-owners, arose from the said fact : “2. ….. In the reference application made by Venkatachalam indisputably he mentioned that the acquired property belonged to him and his other brothers and the compensation awarded by the Land Acquisition Officer was inadequate and very low. It was also stated that they should get an enhanced amount at the figure specified in the reference application – Undoubtedly he stated therein that he is entitled to 1/4 share. What he stated thereby was that of his entitlement of 1/4 share of the total enhanced compensation and obviously, after the reference on par with his three brother, he is entitled to receive compensation at 1/4 share.” In Jalandhar Improvement Trust’s case (supra), the reference at the instance of respondent No.4 under Section 18 of the Act was found barred by limitation. The compensation was enhanced on a reference raised 6 C.R.No.2811 of 2000 by his children under Section 18 of the Act. After the compensation was enhanced, respondent No.4 sought same compensation as has been enhanced in terms of Section 28-A of the Act. The appeal before the Hon’ble Supreme Court was against the compensation so awarded by the Land Acquisition Collector to respondent No.4. Even, the said judgment is of no help to the argument of learned counsel for the respondent. The respondent No.4 has been awarded enhanced compensation in a reference under Section 28-A of the Act. The judgments of this Court referred to by the learned Executing Court are no longer relevant in view of the judgments of the Hon’ble Supreme Court relied upon by the petitioner. The remedy of the present respondent to claim same compensation was under Section 28-A of the Act, as he has not sought reference under Section 18 of the Act, but having failed to do so, the respondent cannot claim compensation in execution proceedings in respect of decision given in the case of other co- owners. In view of the judgments referred to by the learned counsel for the petitioner and the averments made in the application under Section 18 of the Act, restricting the order passed by the learned Executing Court granting the same amount of compensation to the respondent is clearly not sustainable in law. Consequently, the present revision petitions are allowed. The orders passed by the Executing Court are set aside. 24.08.2010 (HEMANT GUPTA) Vimal JUDGE 7