R.F.A. No. 1484 of 1985 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: January 29,2010 (1) R.F.A. No. 1484 of 1985 (O&M) Basant Bhushan Taneja and others .. Appellants v. The Adelphi Finance Private Ltd. and others .. Respondents (2) R.F.A. No. 185 of 1986 (O&M) M/s Adelphi Finance Private Limited .. Appellant v. State of Haryana and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Gopi Chand Bhalla, Advocate for the appellants in RFA No. 1484 of 1985 and for respondents No. 3 to 5 in RFA No. 185 of 1986. Mr. Ashish Gupta, Assistant Advocate General, Haryana. Mr. M. L. Sarin, Senior Advocate with Ms. Seema Jagpal, Advocate for M/s Adelphi Finance Pvt. Ltd. in both the appeals. ... Rajesh Bindal J. This order shall dispose of the above mentioned two appeals, as common questions of law and facts are involved. Briefly, the facts of the case are that land measuring 17 kanals and 8 marlas, situated in village Mawai was acquired by the State of Haryana for development of Sector 28, Faridabad vide notification dated 1.10.1973, issued under Section 4 of the Land Acquisition Act, 1894 (for short, `the 1894 Act'). The Land Acquisition Collector (for short, `the Collector') gave award on 22.2.1974. Being dissatisfied, the appellants in RFA No. 1484 of 1985 filed petition under Sections 18 and 30 of the 1894 Act impleading M/s Adelphi Finance Pvt. Ltd. as respondent No. 3 claiming that they were entitled to receive the entire amount of R.F.A. No. 1484 of 1985 [2] compensation. The learned court below determined the market value of the acquired land @ Rs. 18/- per square yard. As there was dispute regarding ownership of the land, the learned court below held that as the appellants, namely, Basant Bhushan Taneja, Brij Mohan Taneja and Charanjit Taneja in RFA No. 1484 of 1985 were not owners of the property, they were not entitled to any compensation. The appellant, namely, M/s Adelphi Finance Private Limited in RFA No. 185 of 1986 (respondent No. 1 in RFA No. 1484 of 1985) was held entitled to receive the entire amount of compensation on account of acquisition of land. In RFA No. 1484 of 1985, the issue under consideration is regarding apportionment of compensation and in RFA No. 185 of 1986, the appellant has prayed for enhancement of compensation. Learned counsel for the appellants in RFA No. 1484 of 1985, while raising the issue regarding apportionment of compensation, submitted that the learned court below has totally gone wrong in opining that the entire amount of compensation on account of acquisition of land is payable to respondent No. 1. While recording such a finding, the learned court below has totally failed to appreciate the evidence produced on record by the appellants. He submitted that vide order dated 21.7.1966, passed by the Additional Director, Consolidation of Holdings, Rohtak, the land in question was allotted to the appellants after cancellation of its earlier allotment in favour of the vendor of the respondent, namely, Rai Bahadur Parma Nand. Even mutation was entered in favour of the appellants in the revenue record. Respondent No. 1 challenged the aforesaid allotment of land in favour of the appellants by filing C.W.P. No. 707 of 1969 – The Adelphi Finance Private Ltd. v. State of Haryana and others, before this Court, which was disposed of vide order dated 9.2.1970 on a concession by the parties by recording that the representation already made by respondent No. 1 to the Additional Director, Consolidatin of Holdings, Rohtak against the allotment of land in favour of the appellants will be considered within three months. It was specifically recorded therein that this Court was not recording any finding on the merits of the controversy. He submitted that thereafter no order was passed by the Additional Director, Consolidation of Holdings, meaning thereby that allotment of land in favour of the appellants stood as such. In the light of the aforesaid order, the observations made by the learned court below that the order passed by the Additional Director, Consolidation of Holdings in favour of the appellants regarding allotment of land in question stood vacated, is totally erroneous and is liable to be set aside. The appellants are entitled to payment of compensation on R.F.A. No. 1484 of 1985 [3] account of acquisition of land. On the other hand, learned counsel for respondent No. 1 in RFA No. 1484 of 1985 submitted that the land in question was purchased by it by way of sale deeds registered in its favour on 29.6.1960, 20.3.1961 and 21.3.1961 from Rai Bahadur Parma Nand and possession of the land was delivered to it by the vendor. It was subsequently that on an application filed by Rai Bahadur Parma Nand that Additional Director, Consolidation of Holdings, re-shuffled the consolidation of various khasra numbers including part of khasra numbers, which were purchased by respondent No. 1 and some of the land, which is in dispute in the present appeal was allotted to the appellants. This order was passed totally in contravention of the provisions of Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, `the 1948 Act'), as no notice or opportunity of hearing was afforded to the persons who were going to be effected with the order to be passed by the Additional Director, Consolidation of Holdings. When respondent No. 1 came to know about the order passed, C.W.P. No. 707 of 1969 was filed by the company to challenge the aforesaid order, which was disposed of with a consenting order with a direction to the Additional Director, Consolidation of Holdings, for decision of the representation made by respondent No. 1 against re-shuffling of the allotment of land effecting it and the same was directed to be decided within 3 months. However, the matter remained pending with the authorities. Another C.W.P. No. 975 of 1967—Bhajan Lal and others v. State of Haryana and others, had been filed by the petitioners therein challenging the order dated 21.7.1966 raising the plea that before passing order dated 21.7.1966, they had not been afforded any opportunity of hearing. The writ petition was accepted vide judgment dated 15.2.1979, wherein while quashing the order dated 21.7.1966, passed by Additional Director, Consolidation of Holdings, the matter was remitted back for fresh consideration after issuing notices to the effected parties and affording them opportunity of hearing. In LPA No. 41 of 1979— Narinder Nath Sachdeva and others v. Bhajan Lal and others, the judgment of Hon'ble Single Bench was upheld by this Court by a judgment dated 23.3.1982. Even thereafter, no order had been passed till date. However, the fact remains that this Court had gone into the merits of order dated 21.7.1966 and came to the conclusion that the order was liable to be set aside having been passed in violation of the provisions of Section 42 of the 1948 Act, as no opportunity was afforded to any of the persons going to be effected with the order passed. The situation as such, which emerged after the judgment of this Court was that the order vide R.F.A. No. 1484 of 1985 [4] which allotment of land was made in favour of the appellants was not subsisting, on the basis of which the appellants could stake their claim to receive compensation on account of acquisition of that portion of land. As against that, respondent No. 1 had a duly executed and registered sale deed in its favour showing ownership of the property and on the basis thereof, the learned court below had rightly held it to be entitled to receive compensation on account of acquisition of land. Learned counsel further submitted that it cannot be taken that order dated 21.7.1966, passed by the Additional Director, Consolidation of Holdings, whereby substantial land was taken from some of the persons mentioned therein and allotted to some of the persons, whereas in case of some of the persons, amount of compensation was determined, can be said to be set aside partially as even partial setting aside of that order would have effect on all the persons mentioned therein as the entire re-shuffling was inter-linked. Once that order of consolidation goes, the position, as was existing prior thereof, would be restored back. The Additional Director, Consolidation of Holdings, having not passed any fresh order after the decision of the writ petition by this Court, the claim of the appellants is totally mis-conceived. Even in proceedings under Section 30 of the 1894 Act, issue regarding title can be decided. In the present case, on account of dispute regarding ownership, even the Collector had not disbursed the compensation to any of the parties but referred the dispute to the learned court below. The fact that the order of allotment of land in favour of the appellants was passed without affording opportunity of hearing to any of the persons effected by that, is fully established from the judgments of this Court in Bhajan Lal's case (supra) and Narinder Nath Sachdeva's case (supra). That order having been passed without opportunity of hearing being non-est can even be ignored in the proceedings regarding entitlement for payment of compensation on account of acquisition of that land. Respondent No. 1 could very well raise this issue in these proceedings, which are in the form of civil proceedings and are to be decided on the principles of preponderance of evidence, which is highly tilting in its favour. As far as the rate at which the amount of compensation has been determined by the learned court below, learned counsel for the appellant in RFA No. 185 of 1986 raised only two-fold arguments, namely, that the learned court below has failed to award any compensation to the appellant for the land forming part of khasra Nos. 18/19/2 and 39/25/1 on the ground that the Collector had not made any reference to the learned court below for the purpose of determination of R.F.A. No. 1484 of 1985 [5] compensation or apportionment. It is a fact that reference in the present case by the Collector to the learned court below was suo-motu and in the reference petition, the area for which the compensation was sought, was mentioned as 41 kanals and 7 marlas, whereas the Collector made reference only for 40 kanals and 19 marlas, leaving only 8 marlas of land forming part of the aforesaid two khasra numbers. To prove ownership of the aforesaid khasra numbers, reliance was placed upon sale deeds (Ex. R11 and Ex. R13). In sale deed (Ex. R11), three kanals of land out of khasra No. 18/19/2 and in sale deed (Ex. R13), two kanals of land out of khasra No. 39/25/1 was purchased by the appellant. In the alternative, it was submitted that in case the land forming part of the aforesaid two khasra numbers had not been acquired, the appellant may be given opportunity to take appropriate proceedings in that regard. Another relief claimed by the appellant in the present appeal is regarding payment of solatium and interest at the enhanced rates considering the fact that the award of the learned court below in the present case was after the Land Acquisition (Amendment) Act, 1984 (for short, `the 1984 Act') came in force. For the purpose, reliance was placed upon Union of India and another v. Raghubir Singh (dead) by LRs etc., AIR 1989 SC 1933 and Krishi Utpadan Mandi Samiti v. Kanhiya Lal and others, JT 2000 (Suppl. 1) SC 251. Learned counsel for the appellant fairly stated that he was not claiming benefit of the amended provisions of Section 23(1A) of the 1984 Act as in none of the judgments, referred to by him, such a claim was accepted. Heard learned counsel for the parties and perused the relevant referred record. As far as claim of the appellant in R.F.A. No.185 of 1986 is concerned, the same is with regard to non-payment of compensation for part of the land on account of the fact that the Collector had not made any reference with regard to the same. The case of the appellant herein was that in the objections filed, claim was made for the entire land, however, there was error in mentioning of khasra number by the Collector. Be that as it may, once the land owner was not satisfied with the amount of compensation awarded for acquisition of land and the objection was raised regarding the same, merely because there was an error in mentioning of khasra number therein, will not disentitle the land owner from claiming enhancement of compensation qua that land. Accordingly, the land owner shall be entitled to enhancement of compensation for the entire land, which has been acquired. In case any portion of land for which the land owner is claiming compensation has not been acquired in terms of the records of the State, the land R.F.A. No. 1484 of 1985 [6] owner shall be entitled to take appropriate remedy in that regard in accordance with law. As far as claim regarding payment of solatium and interest at the enhanced rate is concerned, it has been consistently held in various judgments of Hon'ble the Supreme Court and this Court that where though the award of the Collector was before 30.4.1982 but that of the Reference Court is thereafter, the land owners shall be entitled to benefits of the amended provisions of the 1984 Act with regard to enhanced interest and solatium only, i.e., as is provided for under Section 23(2) and 28 of the 1984 Act, but will not be entitled the benefits under Section 23(1A) of the 1894 Act. The judgments in Union of India's case (supra), Krishi Utpadan Mandi Samiti's case (supra) and State of Haryana v. Manbhari, 2009(2) PLR 563 can be referred to for the purpose. Accordingly, the award of the learned court below is modified and it is held that the land owners shall be entitled to benefits under Sections 23(2) and 28 of the amended Act with regard to enhanced interest and solatium. However, they will not be entitled to benefits under Section 23(1A) of the 1984 Act. As far as the claim of the parties in R.F.A. No. 1484 of 1985 is concerned, in my view, the impugned award of the learned court below does not call for any interference. The claim of the appellant herein is based on an order dated 21.7.1966, passed by the Additional Director, Consolidation of Holdings, Rohtak, whereby in proceedings under Section 42 of the 1948 Act, allotment of some portion of land was made in favour of the appellant therein. A perusal of the aforesaid order shows that the land was exchanged between number of persons and in some cases even the amount of compensation was determined to be payable, whereas in some cases new persons were allotted land, which was not in exchange of any other land. No doubt, in the writ petition filed by M/s Adelphi Finance Private Limited, this Court directed for consideration of its representation as the order was passed by the Additional Director, Consolidation of Holdings, without hearing the affected party, but still this court cannot lose sight of the fact that in a subsequent judgment of the Single Bench in Bhajan Lal's case (supra) and Narinder Nath Sachdeva's case (supra), this Court quashed order dated 21.7.1966 holding it to be in violation of Section 42 of the 1948 Act and remitted the case back for fresh consideration after hearing the parties. Setting aside of that order by a Division Bench of this Court cannot be said to be piecemeal, as the allotment, exchange and payment of compensation to various parties in the order was inter- connected. M/s Adelphi Finance Private Limited in the present case is having a validly executed sale deed from the person, who was undisputedly the owner of the R.F.A. No. 1484 of 1985 [7] land, when the same was sold. The cloud on the title was put only after the passing of the order dated 21.7.1966 by the Additional Director, Consolidation of Holdings. The same having been set aside, the buyer of the land is certainly entitled to be paid compensation. The appeals are disposed of in the above terms. (Rajesh Bindal) Judge January 29,2010 mk