Himachal Pradesh High Court
Himachal Pradesh Power Corporation ... vs . Deepan Devi on 19 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
Himachal Pradesh Power Corporation Ltd. vs. Deepan Devi RFA No.256 of 2017 19.09.2023 Present: Mr. Vivek Negi, Advocate, for the appellant.
of Mr. Ranvir Chauhan, Advocate, for respondents No.1 to 3.
Mr. Abhishek Dulta, Advocate, for the applicants in rt CMP No.2575 of 2023.
CMP No.2575 of 2023 By way of instant application filed under Section 151 CPC, prayer has been made on behalf of applicants No.1 to 12 for issuing direction to non-applicants/appellants to deposit the compensation along with interest and other statutory benefits under the Act as per shares of applicants/appellants in the acquired land.
Pursuant to the notice issued in the instant proceedings, non-applicants/appellants have filed reply, wherein, prayer made in the application has been opposed on the ground that applicants neither filed proceedings under Section 28-A of the Land Acquisition Act for enhancement nor filed the Reference Petition under Section 18 of the Act and as such, they are not entitled to the relief, as has been prayed in the instant application.
Besides above, it has been further stated in the reply that after disposal of the RFA No.256 of 2017, wherein, present application has been filed, this Court has become functus officio and as such, is not competent to entertain the instant application.
Having heard learned counsel representing the parties and perused the material available on record, this Court finds that land of the applicants also came to be utilized by the non-applicants/appellants for construction of Sawra Kuddu Hydro ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
Electric Project. On account of acquisition of land applicants though were granted compensation, but admittedly, they neither filed Reference under Section 18 of the Land Acquisition Act nor of petition, if any, under Section 28-A of the Act for enhancement, but now after disposal of the appeal bearing RFA No.256 of 2017 having been filed by the non-applicants/appellants, wherein, rt amount awarded by the Land Acquisition Collector came to be enhanced in certain cases, applicants being similar situate to other land owners have approahed this Court in the instant application, seeking therein direction to the non-
applicants/appellants to deposit the enhanced amount qua the land of them. Though, it has been vehemently argued by Mr. Vivek Negi, learned counsel representing the non-
applicants/appellants that present application is not maintainable, but this Court finds that a similar issue came to be adjudicated in case titled LAC, HPSEB vs. Lata & Ors. in RFA No.455 of 2019, wherein Court concerned while dealing with the similar applications bearing CMP Nos. 8378, 8379,9238 and 10478 of 2020, held that applicants being similar situate to the land owners, who have been granted enhanced compensation, are entitled for compensation and enhanced rates with all statutory benefits.
Relevant paras of the aforesaid judgment are extracted hereinbelow:-
"3. After disposal of main appeal, land owners have filed an application being CMP No.8378 of 2020 seeking direction to the appellants to deposit deficit amount of compensation, as according to them, appellants have not deposited entire amount of compensation for the land acquired in present case.
4. An application being CMP No.8379 of 2020 has also been filed by the landowners for release of ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
amount of compensation in their favour on the ground that all of them are co-owners of the land in reference in present case.
5. In aforesaid applications those co-owners are also applicants who had neither preferred Reference of Petitions under Section 18 of the Act nor a petition/application under Section 28- A of the Act.
6. rt The aforesaid applications have been contested by the appellants and prayer seeking direction to deposit deficit amount and also to release amount in favour of those landowners also, who had not preferred Reference Petition under Section 18 of the Act, has been opposed, on the ground that the respondents-landowners, who were petitioners before the 7 Reference Court, only are entitled to the compensation qua their respective share to the extent of 53/128 share out of total land measuring 2605 centiare, inasmuch as they are only entitled to the compensation with respect to 1078.63 centiare and further that those, who had not preferred Reference Petition, have no competence to maintain the application for release of amount of compensation for their shares in the land in question.
7. Learned counsel for the landowners referring judgments pronounced by the Supreme Court in A. Viswanatha Pillai and others vs. Special Tahsildar for Land Acquisition No.IV and others, AIR 1991 SC 1966; Jalandhar Improvement Trust vs. State of Punjab and others, AIR 2003 SC 620, and judgments passed by Single Benches of this Court in Dinesh Kumar & Ors. Vs. State of Himachal Pradesh & Anr., AIR 2012 Himachal Pradesh 68; and Lesru Ram (deceased) through LR's Kalu Devi and others vs. Collector Land Acquisition NHPC and another, 2018 (4) Him. L.R. (HC) 2336, has contended that every co-owner, irrespective of the fact whether he has preferred Land Reference Petition or not, is entitled for compensation of the acquired land equal to the other co-owners of the land.
8. The Supreme Court in A. Viswanatha Pillai's case, has held as under:-
"2. The sole question for decision is whether in a reference sought for by one of the co- owners whether the other co-owners, who did not expressly seek reference are entitled to enhanced compensation pro rata as per their ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
shares. It is not 8 in dispute that under the partition deed, the four brothers as coparceners kept in common the acquired property and Venkatachalam was in management thereof and each are entitled to 1/4 share in the ancient Anicut and the of irrigation system. ... ... ... ... ...It is true that Viswanathan and Pasupathy made such request in respect of two awards and Sabhapathy did not make any request for reference against any of the awards. But what rt would be the consequence in laws is the question. It is surprising that the State having acquired the property of a citizen would take technical objections regarding the entitlement of the claim. The State certainly is right and entitled to resist claim for enhancement and lead evidence in rebuttal to prove the prevailing price as on the date of notification and ask the court to determine the correct market value of the lands acquired compulsorily under the Act. But as regards the persons entitled to receive compensation are concerned it has no role to play. ... ... ... ... ... ... ... ... ...It is settled law that one of the co-
owners can file a suit and recover the property against strangers and the decree would enure to all the coowners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners. In Kanta Goel vs. B.P. Pathak, (1977) 3 SCR 412 : (AIR 1977 SC 1599), this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1977) 1 SCR 395 : (AIR 1976 SC 2335) and (1989) 1 SCR 67 : (AIR 1989 SC 758). A 9 co-
owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co-owner's property was not its own. He owns several parts of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. Therefore, a coowner of the property is an owner of the property acquired but entitled to receive compensation pro rata. The State would plead no waiver nor omission by other co-owners to seek ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled to."
9. In Jallandhar Improvement Trust's case, the Supreme Court, referring Viswanatha Pillai's case, of has held as under:-
"5. Having regard to the view we propose to take and the manner of disposal intended to rt be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. The 4th respondent indisputably is a co-owner along with her children who were added as petitioners 2 to 5 to the award dated 5-2-1986, in which case, even on the first principles of law one co- owner is entitled to have the benefit of the enhanced compensation given in respect of the other coowners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th respondent's application for reference under Section 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to differentiate the 10 claims of such co-owners whose claims came to be really sustained and that of the 4th respondent, for differential treatment. We are fortified to some extent in the view expressed above, by the principles laid down by this Court in the decision reported in (AIR 1991 Supreme Court P. 1966), A. Vishwanth Pillai & Ors. V. Special Tehsildar for Land Acquisition."
10. In similar situation, in Dinesh Kumar's case, an application filed by co-owner under Section 146 CPC, who had not filed Reference Petition or application under Section 28-A of the Act, for grant of compensation to the extent of their shares by enforcing the award passed in favour of other co- owners was dismissed by learned District Judge and the dismissal of the application was assailed in this High Court. This Court, after taking into consideration judgments passed by the Supreme ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
Court in A.Viswanatha Pillai's and Jalandhar Improvement Trust's cases, has set aside the order of dismissal passed by the District Judge by holding that co-owners were entitled for enhanced pro rata compensation alongwith interest and other statutory benefits such as solatium etc. under the Act, of according to their share in the acquired land, by observing as under:-
"9. Thus, it is more than clear that rt even a co-sharer who has not sought reference to the court is entitled for enhanced compensation pro rata in accordance with his share in the acquired land.
............
11. Thus, it is manifest that the claim for enhanced compensation by a co-owner at par with other co-owners in whose favour an award has been 11 passed is based on his own right as a co-owner irrespective of any claim for re-determination of the amount of compensation on the basis of award of the court under Section 28-A of the Act."
11. Similar view has been taken by another Coordinate Bench of this Court in Lesru Ram's case supra, 2018 (4) Him. L.R. (HC) 2336.
12. In the light of aforesaid settled exposition of law, plea of the appellants that they are liable to pay enhanced compensation with respect to share of only those landowners who had preferred Reference Petitions and other co-owners of the same land are not entitled for enhanced compensation, is not tenable and, thus, rejected and all co-owners, irrespective of fact that they have neither preferred Reference Petitions nor filed application under Section 28-A of the Act, are entitled for enhanced pro rata compensation alongwith all statutory benefits like other co-owners who had preferred Reference Petitions or have been awarded compensation under Section 28-A of the Act, according to their right in the acquired property on the basis of their share.
13. Therefore, CMP No.8378 of 2020 is allowed. Appellants are directed to deposit the amount of compensation for the entire land acquired, in reference in present case alongwith all consequential statutory benefits in the Registry of ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
this Court within eight weeks from today, so that each and every co-owner can have amount of compensation as per his entitlement on equal footings like other co-owners."
of It is quite apparent from the aforesaid order passed by Coordinate Bench that prayer made on behalf of the applicants for issuing direction to the non-applicants/appellants to pay rt enhanced compensation with respect to the land used for construction of Power Project, deserves to be allowed. It is not open at this stage, for the non-applicants/appellants to claim that they are liable to pay enhanced compensation in respect of only those land owners, who have preferred reference petition. In all, the judgment passed by the Hon'ble Apex Court, which have been taken note by Coordinate Bench of this Court while passing the aforesaid order, it has been categorically held that co-owners are entitled for enhanced pro rata compensation alongwith interest and other statutory benefits such as solatium etc. under the Act, according to their shares in the acquired land. Mere non filing of the Reference Petition under Section 18 and the petition, if any, under Section 28-A of the Act for enhancement, may not be a ground to deny the aforesaid due and admissible benefits to the applicants, who admittedly alongwith other land owners made available their land for construction of Power Project. Since similar situate persons have been already granted enhanced amount of compensation, such benefit cannot be denied to the applicants for their having not filed separate proceedings under Section 18 and 20-A of the Act.
Consequently in view of the aforesaid discussion as well as law taken into consideration, the present application is ::: Downloaded on - 21/09/2023 20:33:52 :::CIS .
allowed and non-applicants/appellants are directed to deposit the enhanced amount of compensation for the entire land acquired alongwith consequential statutory benefits in terms of the of judgment passed by Coordinate Bench of this Court in RFA No. 256 of 2017, decided on 28.12.2019, in the Registry of this Court within a period of eight weeks, whereafter applicants may file rt application, if any, for release of the same.
Application stands disposed of.
(Sandeep Sharma) Judge 19th September, 2023 (reena) ::: Downloaded on - 21/09/2023 20:33:52 :::CIS