Allahabad High Court
Soran Singh vs Collector Agra & Others on 19 March, 2018
Bench: Sudhir Agarwal, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- FIRST APPEAL No. - 152 of 2014 Appellant :- Soran Singh Respondent :- Collector Agra & Others Counsel for Appellant :- Ashok Tripathi, Sarita Agrawal, Shruti Malviya, Anil Sharma Counsel for Respondent :- J.N.Maurya, Sanjay Kumar Om Hon'ble Sudhir Agarwal,J.
Hon'ble Shashi Kant,J.
1. Heard Sri Anil Sharma, Advocate assisted by Sri Ashok Tripathi, learned counsel for appellant and learned Standing Counsel as well as Sri Sanjay Kumar Om, Advocate for respondents.
2. This appeal under Section 54 of Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") has arisen from judgment and award dated 16.12.2000 passed by Sri V.C. Gupta, IXth Additional District Judge, Agra in Land Acquisition Case No. 4 of 1988.
3. Appellant was non-suited by Reference Court only on the ground that he is a subsequent transferee by way of sale deed dated 18.12.1987 which was executed after Special Land Acquisition Officer (hereinafter referred to as "SLAO") made award dated 10.12.1987 determining compensation and, therefore, sale deed is nothing but transfer of a right to sue and not property, barred by Section 6(e) of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") hence reference at the instance of subsequent transferee for enhancement of compensation is not maintainable.
4. Point for determination which has arisen in this appeal is, "whether Reference Court was correct and justified in rejecting reference on the ground that applicant seeking reference, being a subsequent transferee, cannot maintain a reference for enhancement of compensation, as, the sale deed is nothing but transfer of a right to sue and not property."
5. The brief facts relevant for determination of this appeal are that for acquisition of 150-1-15 Bigha (85.47 acres) (413678.66 square yard) land in Village Basai, Tehsil and District Agra, notification under Section 4(1) of Act, 1894 was published on 07.05.1983 and declaration under Section 6 was published on 20.12.1985. Possession of land was taken on 15.10.1986. The land belong to Ashok Kumar and Rajenda Kumar at the time of issue of aforesaid notifications. However, vide sale deed dated 18.12.1987, property rights in acquired land were transferred by erstwhile owner to appellant-Soran Singh.
6. SLAO made award on 10.12.1987 determining compensation at Rs. 25/- per square yard. Since sale deed was executed on 18.12.1987 appellant thereafter moved application under Section 18 of Act, 1894 before Collector, Agra for making reference for determination of market value under Section 23 of Act, 1894 but this Reference has been rejected by Court below on the ground that appellant being subsequent purchaser cannot maintain reference for enhancement of compensation.
7. Sri Anil Sharma, learned counsel for appellant contended that a subsequent purchaser may not challenge acquisition but right to receive compensation including right to claim enhancement of compensation is a right to property and, therefore, reference on the part of subsequent purchaser to this effect was maintainable and Court below has erred in law in taking an otherwise view.
8. Learned Standing Counsel as well as Sri Sanjay Kumar Om, Advocate appearing for respondents, however, sought to support award for the reasons mentioned therein that appellant being a subsequent purchaser has no right to seek enhancement of compensation since what he purchased is mere right to sue and not for transfer of property.
9. In order to find out, what was transferred by erstwhile owner to appellant, we have gone through the copy of sale deed and it would be appropriate to reproduce relevant extract thereof:
^^fofnr gks fd vkjkth [kkrk la[;k&2] [kljk ua0 15-85 jdcbZ 1 ch?kk 13 foLok] ckds xzke clbZ eq'rfdy rglhy o ftyk vkxjk ds dk'rdkj dkfct o n[khy Fks ge eqfdjku dh mijksDr vkjkth egdek vkxjk fodkl izkf/kdj.k vkxjk }kjk rktuxjh xzg LFkku ,oa lM+d ;kstuk ds vUrxZr vH;fFkZr dh tk pqdh gS ftl ij fd mDr foHkkx us dCtk Hkh izkIr dj fy;k gS rFkk ge yksxksa dks eqvkotk feyuk gS ftlds fd ge eqfdjku rugk ekfyd Lokeh dkfct o n[khy gS gekjs vykok nhxj gdnkj fgLlsnkj fdlh Hkh fdLe ds ugha gS tks fd eqvkotk gkfly djus esa fdlh Hkh fdLe dh ck/kk ;k :dkoV iSnk dj ldsA ge eqfdjku dks eqvkotk izkIr djus dh okdk tks gdwd gkfly gS og gj rkSj ls ikd o lkQ gS vxj blds f[kykQ dqN tkfgj gks rks ge eqfdjku tqeyk uktk;t dkuwu ds ftEesnkj gksxsa vc gedks vkjkth etdwj mijksDr ftlds fd ge dk'rdkj ekfyd o Lokeh gS ftldk fd gesa eqvkotk feyuk gS o mlls lEcfU/kr leLr v[R;kjkr dk Qjks[r djuk o ctg vnhe Åy Qqjlr o u dj ikus nkSM /kwi o feyus equkflc dher oDr ekStwnk ds eatwj gS fygktk ge eqfdjku eqvkotk vkjkth etdwj ds leLr v[R;kjkr lfgr xqMVk;fVy ds lkFk viuh jkth o [kq'kh ls fcyk fdlh ds cgdk;sa Qlyk;s o cxSj fdlh u'khyh oLrq dk lsou fd;s fcy ,sot eqofyx 10]000-00 nl gtkj :i;k fd ftlds vk/ks 5]000-00 ikap gtkj :i;k gksrs gSa esa cnLr Jh lkSju flag iq= Jh jken;ky oekZ fu0 uxyk ckypUnz uqugkbZ vkxjk ftyk vkxjk dks drbZ oS; dj fn;k vkSj csap fn;k mijksDr dher dk dqy :i;k ge eqfdjku ls [kjhnkjku ls uxn oDr jftLV~h cSukek gktk ds izkIr gksxkA vc gekjk ckor dher etdwj o ftEes [kjhnkj ls dqN Hkh ikuk 'ks"k ugha jgk vkSj u vk;ank gksxk [kjhnkj dks etkt gksxk fd og ftl dnj Hkh cfd;k eqvkotk egdek etdwj ls izkIr gks mldks oktkIrk uxn vFkok ckmpj ds :i esa izkIr djs vkSj mDr cfd;k eqvkotk gkfly djus ds LFkku ij [kjhnkj ctk; uke gekjs ds viuk uke egdek etkt esa djk ys rFkk [kjhnkj mlds eqrkfyd vihy fjQjsUl egdek gkbZdksVZ lqizhe dksVZ VªO;quy o vkxjk fodkl izkf/kdj.k vkxjk o vU; lEcfU/kr foHkkx esa djs vkSj eqvkotk gkfly djsA ftldk okdk mudks leLr v[r;kjkr ekydkuk gj fdLe ds gkfly gS vkSj vkbank gksxsA** "Be it known that we, the executants, were cultivators having possession and occupation over the land bearing Khata No. 2, Khasra No. 15.85 measuring 1 Bigha and 13 Biswa situated at Village Basai Mushtakil, Tahsil and District Agra. The aforesaid land of us, the executants, has been acquired by Agra Development Authority for Taj Nagri Grah Sthan and Sadak Yojna, and the said department has also taken possession over it. We are to be paid a compensation for the land. We, the executants are sole owners having possession and occupation over it, and except us, nobody else has any type of right to, or share in, it, which may create any type of obstruction in getting the compensation. The rights to get compensation which, we, the executants have; are bonafide and free from any defects. And if anything appears to be against it; we, the executants, shall be responsible for any illegality with respect to the aforesaid land of which we are cultivators & owners and in lieu of which we are to get the compensation. We agree to receive the compensation as per the existing rate, and to sell the entire rights related to the said property. Hence, we, the executants, with our free will, under no inducement and without consuming any intoxicant sell all the rights of the aforesaid land including its good title to Shri Soran Singh S/o Shri Ramdayal Verma R/o Nagla Balchandra Nunhai, Agra, District Agra, against a consideration of Rs. 10,000, half of which is Rs. 5,000/-. We, the executants, shall receive the entire aforesaid amount from the buyers in cash at the time of the registration of the sale-deed. Now, we have nothing to receive from the buyers apart from the aforesaid agreed price nor will there be anything receivable in the future. Whatever amount of compensation remains in balance, the buyer may get in cash or by means of vouchers from the aforesaid department and may get his name recorded in place of our names; and the buyer may get the compensation by accordingly filing an appeal/reference before the Hon'ble High Court, Hon'ble Supreme Court, Tribunal, Agra Development Authority, Agra or before another concerned department. They possess all the rights of the ownership, and the same shall be available to them in the future."
(emphasis added) (English translation by Court)
10. Sale deed thus clearly says that land was already acquired and possession was also taken by State and Agra Development Authority (hereinafter referred to as "ADA"). The erstwhile owners had a right to claim compensation which was yet to be received by them and that right was transferred to appellant for a consideration of Rs. 10,000/-. Thus the question, now we have to examine is, "whether right to receive compensation including right to seek enhancement of compensation is a transfer of property or a mere transfer or right to sue", in the light of relevant provisions of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882").
11. The term "transfer of property" had been defined under Section 5 of Act 1882 and reads as under:-
"5. "Transfer of property" defined.- In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act.
In this section "living persons" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."
12. The term "property" has not been defined under Act 1882, instead it defines "immovable property" under Section 3, which reads as under:-
"'Immovable property' does not include standing timber, growing crops, or grass;"
13. It is in fact not a definition of Immovable property but specify things which are not included within the term "immovable property". We find definition of "immovable property" in Section 3 (26) of General Clauses Act,1897 (hereinafter referred to as Act, 1897) which is inclusive and reads as under:-
"Immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth." (emphasis added)
14. In Suresh Chand Vs. Kundan (2001) 10 SCC 221, in Para 6 of the judgement, Court has said that in absence of any special definition of "immovable property" under Act 1882, general definition contained in General Clauses Act shall prevail. To the same effect is the law laid down in Srimati Santabai Vs. State of Bombay and others, A.I.R. 1958 SC 532 Para 28. The definition of "immovable property" under Section 3(26) of General Clauses Act is inclusive. The phrase "benefits to arise out of land" in larger sense is nothing but interest in land, for example, annual allowance charge of land, a right to collect dues at fair held on a plot of land, a Haat or market, a right to possession and management of Saranjam, a right to collect any fee or other dues in respect of particular land, a live inquest in requisition of a immovable property, a right of way, a fairy, a fishery, etc.
15. Section 6 of Act, 1882 specifically provides that property of any kind may be transferred, except as otherwise provided by Act 1882 or by any other law for the time being in force. The exceptions as above are nine and read as under:-
"(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.
(c) An easement cannot be transferred apart from the dominant heritage.
(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
(e) A mere right to sue cannot be transferred.
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.
(g) Stipends allowed to military, naval, air-force and civil pensioners of the Government and political pensions cannot be transferred.
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee." (emphasis added)
16. For the case in hand we are concerned with Section 6(e) which says a "mere right to sue" cannot be transferred. Section 6 came up for consideration in Union of India Vs. Sri Sarada Mils Ltd. A.I.R. 1973 SC 281 wherein it held that a bare right of action, might be, claims to damages for breach of contract or claims to damages for tort and assignment of the mere right of litigation, is bad. An assignment of property is valid even although that property may be incapable of being received without litigation. The reason behind the rule is that a bare right of action for damages is not assignable because the law will not recognize any transaction which may savour of maintenance of champerty. It is only when there is some interest in the subject matter that a transaction can be saved from imputation of maintenance. That interest must exist apart from the assignment and to that extent must be independent of it.
17. Nature of claim for compensation or enhanced compensation came to be considered before a three Judges Bench in Mrs. Khorshed Shapoor Chenai etc. vs. Assistant Controller, Estate Duty, AIR 1980 SC 775, wherein certain lands owned by Rashid Shapoor Chenai were acquired by two sets of Notifications published on 19.6.1961 and 13.1.1962, respectively and another on 1.11.1963 and 1.2.1964. In first set of acquisition proceeding, Collector made award determining compensation on 31.1.1963 but under second set of acquisition proceeding notification under Section 6 could be published, Rashid Shapoor Chenai died on 4.11.1963. Award was made on 12.3.1965 and 19.3.1965. In earlier acquisition proceedings, compensation awarded by Collector was received by Rashid Shapoor Chenai in his life time but in respect of later award, compensation was received by his widow Mrs. Freny Chenai and his son Shapoor Rashid Chenai. Mrs. Freny Chenai on death of Rashid Shapoor Chenai, filed account of properties for purpose of estate duty on 26.12.1963, which was completed by Assessing Authority on 29.3.1966. He took value of acquired land as determined by Collector for purposes of compensation. Shapoor Rashid Chenai son of Rashid Shapoor Chenai also died on 7.5.1965. His widow also filed account of properties and Assessing Authority completed estate duty also on 30.12.1966. He adopted value of land acquired as per determination made by Collector. In the mean time, heirs of Rashid Shapoor Chenai had already made an application for determination of compensation by District Judge by making Reference under Section 18 and Reference was adjudicated on 6.3.1967 wherein market value was enhanced substantially. Matter was taken by Government in appeal to High Court. Estate duty authorities having information of enhanced compensation awarded in Reference, issued notices for reopening of assessment. These notices were challenged in High Court, who dismissed the petition and, thereupon, matter came to Supreme Court. One of the contentions was that heirs of deceased Rashid Shapoor Chenai in making reference only exercised a right to sue for further compensation and it was merely a hope or a chance that compensation might be enhanced. It was not an asset or property or duty at that time, hence, question of escaped assessment does not arise. This contention was rejected by High Court as well as Supreme Court. It relied on an earlier decision in Lakshmi Kant Jha vs. Commissioner of Wealth Tax, Bihar and Orissa, (1973) 90 ITR 97, wherein Zamindari estate was acquired by Government under Bihar Land Reforms Act, 1950 and it was held that right to receive compensation against such estate is a right related to property. Compensation was property and constituted an asset for the purpose of physical statute. It is said that under Act, 1894, where land is forcibly acquired, payment of compensation is a condition precedent. In our view, compensation may defer but land owners despite losing land, would have a right to receive compensation and this compensation is a "property". Court also held, whether compensation determined by Collector is final or in any litigation i.e. reference under Section 18, it is enhanced, both constitute one and an individual right. It cannot be said that right to receive compensation is confined to what is determined by Collector and enhanced compensation would amount to "extra compensation", which is nothing but a right to sue. Court observed as under:
"Upon acquisition of his lands under Land Acquisition Act, the claimant has only one right, which is, to receive compensation for the lands at their market value on the date of the relevant notification and it is this right, which is quantified by the Collector under Section 11 and by the Civil Court under Section 26 of the Land Acquisition Act".
18. Court also observed that once Collector make award, it cannot be said that right to receive compensation is ceased. It survives, if award is not accepted or compensation is received under protest. Right to receive compensation must be regarded as having survived and kept alive, which claimant prosecutes in Civil Court. Court further observed as under:
"It is impossible to accept the contention that no sooner the Collector has made his award under Section 11 the right to compensation is destroyed or ceases to exist or is merged in the award, or what is left with the claimant is a mere right to litigate the correctness of the award. The claimant can litigate the correctness of the award because his right to compensation is not fully redeemed but remains alive which he prosecutes in Civil Court. That is why when a claimant dies in a pending reference his heirs are brought on record and are permitted to prosecute the reference." (Emphasis added)
19. This very question again specifically came up for consideration before this Court also in U.P.Avas Evam Vikas Parishad vs. Kanak and others, 1999 ALL. L.J.153. A similar argument was raised therein on behalf of U.P. Avas Evam Vikas Parishad. Rejecting the same and referring to Section 6 of Act,1882, Court held that property of any kind can be transferred but a mere right to sue cannot be transferred. Then referring to judgment in Mrs. Khorshed Shapoor Chenai (supra), Court said in para 31, as under:
"In view of the discussions made above we hold that the sale deeds whereby the respondent-claimants once have acquired property rights in the land acquired and the right to receive compensation, did not envisage transfer of mere right to sue, transfers of property in the acquired land are not of champertous nature, hit by the provisions of Section 6 of the Transfer of Property Act and Section 23 of the Indian Contract Act." (Emphasis added)
20. It is true that subsequently a Division Bench of this Court in Agra Development Authority vs. State of U.P., 2004 R.C.R. (Civil) 60, has taken a view that claim of compensation cannot be transferred as it amounts to only right to sue and for this purpose, it relied on Ellis vs. Torrington, 1920 (1) KB 399, Basanta Kumar Das vs. Nagendra Nath Pal, AIR 1932 Calcutta 719, Ganga Din and another vs. Piyare, AIR 1929 Allahabad 63 (1), Jagannath Marwari vs. Kalidas Raha, AIR 1929 Patna 245, Ram Dayal and others vs. Mukat Manohar and another, AIR 1937 Allahabad 317, Moti Lal vs. Radhey Lal and others, AIR 1933 Allahabad 642, Sri Sri Iswar Gopal Jew vs. Globe Theaters Ltd., AIR (34) 1947 Calcutta 200 and Manmatha Nath Mullick vs. Sheikh Hedait Ali and others, AIR 1932 Privy Council 32. This Court in Agra Development Authority (supra) held that transferees of original claimants have no right to get compensation as a mere right to sue cannot be transferred. Unfortunately, we find that earlier binding authority of Supreme Court in Mrs. Khorshed Shapoor Chenai (supra) and Division Bench judgment of this Court in U.P. Avas Evam Vikas Parishad (supra), were not noticed though the judgment in Agra Development Authority (Supra) is much subsequent to aforesaid precedents and earlier authorities were binding upon subsequent Division Bench judgment. It appears that in ignorance of aforesaid earlier judgments, holding otherwise, this Court took a contrary view in Agra Development Authority (supra).
21. At this stage, we have also examined Section 6 of Act 1882 as also judgments referred to in Agra Development Authority (supra) and find that in none of the authorities cited therein, issue with respect to "compensation" under Land Acquisition Act, 1894, was involved.
22. In Ellis vs. Torrington (supra), by a lease-deed dated 24.10.1898, certain premises were let out for a period of nineteen years. House was let by one E.T. Johnson to F. Voelklein. All three leases contained onerous covenants to repair the premises and to keep them and yield them up in good repair. Sub-underlease became vested by assignment in defendant. Plaintiff, who had been a tenant to defendant of same premises, sought to claim damages for breach of lessee's covenants therein that assignment was free from objection on the ground of maintenance or champerty. The right of action on the covenants being so connected with enjoyment of property has to be more than a bare right to litigate, as held therein.
23. In Ganga Din and another (supra), plaintiff purchased certain zamindari rights and mesne profits, payable to defendant no.1, who was vendor. This Court held that transfer of mesne profit is not a mere right to sue and can be transferred under Section 6 of Act 1882. This Court refers the view otherwise taken by District Judge in appeal and held as under:
"A person who is entitled to a property in possession of a trespasser is entitled not only to property but to profits of which, he has been improperly deprived. Profits rightfully belong to owner of land and it is not accurate to say that profits are payable merely by way of damages."
24. In Jagannath Marwari (supra), a Division Bench of Patna High Court held where a person purchases a tank and brings a suit by virtue of a covenant running with land, it cannot be said that what was transferred, was a mere right to sue. Court held that word "mere" implies that the transferee acquires no interest in the subject of transfer other than the right to sue. It relied on its earlier decision in Jai Narain Pandey vs. Kishun Dutt Missir, AIR 1924 Pat.551 wherein decision in Gregg vs. Bromley, (1912) 3 KB 474, was followed. Court held as under:
"The question was whether the subject matter of the assignment was, in the view of the Court, property with incidental remedy for its recovery or was a bare right to bring an action either at law or in equity".
25. Citation of Calcutta High Court decision i.e. Monmatha Nath Dutt vs. Matilal Mitra, AIR 1932 Calcutta 719, we find is not correct citation inasmuch as decision reported in AIR 1932 Calcutta 719 titled as Basanta Kumar Das vs. Nagendra Nath Pal.
26. In Moti Lal vs. Radhey LaL (supra), this Court explaining Section 6 (e) of Act, 1882 held as under:
"A claim to cover an ascertained amount is an actionable claim and can be validly transferred but a claim for unliquidated damages for breach of contract, after the breach, is not an "actionable claim" within the meaning of Section 3 (e) of Act, 1882."
27. In Ram Dayal vs. Mukat Manohar (supra), this Court held that right to sue for breach of contract is not a property as defined in Section 2 (d) of Provincial Insolvency Act, 1920, hence, non-transferable under Section 6 (e) of Act, 1882.
28. In Manmath Nath Mullick vs. Sheikh Hedait Ali (supra), Privy Council held that Section 6 (e) not applicable. In that case therein mortgagor leased mortgaged property and lessee agreed to pay Government dues or be responsible to lessor in damages. Lessee defaulted and mortgagee who purchased properties in auction sale under a previous mortgagee's decree paid dues. Mortgagor had also assigned his rights against lessee to purchaser mortgagee. A suit was filed by mortgagee against lessee for amount of dues paid. It was pleaded that assignment was invalid under Section 6 (e). It was held that it was not a mere right to sue but a claim for a definite sum of money which lessee was bound by his contract with lessor to repay him. This would be an actionable claim to which Section 130 of Act,1882 would apply. The failure of lessee to fulfill this obligation did not give rise to a claim of damages but to a claim for reimbursement of precise sum which landlord had disbursed to meet the obligation and this claim being property as signed can be decreed.
29. In Sri Iswar Gopal Jew vs. Globe Theaters Ltd. (supra), it was held that an action for damages in tort is not assignable.
30. Therefore, decisions relied by Division Bench in Agra Development Authority (supra), we find, were rendered in different facts and conditions. Courts had no occasion to consider question as to whether right to receive "compensation" on acquisition of land by State, is property or not or is it assignable under Section 6 of Act, 1882. This issue was already decided by Supreme Court in Mrs. Khorshed Shapoor Chenai (supra) and by a Division Bench of this Court in U.P. Avas Evam Vikas Parishad vs. Kanak and others (supra). Unfortunately both these judgments went unnoticed by subsequent Division Bench. Since there is a divergence opinion in two Division Bench of this Court and in that view of the matter, we could have referred the matter to larger bench, but no useful purpose would be served since issue stands covered by a Supreme Court judgment, which is binding on us hence we follow the same. We also find that recently another Division Bench has also followed what we have observed above. Another Division Bench presided by Hon'ble Ashok Bhushan, J (as His Lordship then was) in Food Corporation of India vs. Kailash Chand and others, 2014 (1) ADJ 379 (DB), wherein a similar dispute was raised, has held:
"It is settled proposition of law that any transfer of land after issuance of notification under Section 4 (1) by the owner of the land is void as against the State and such transferee cannot be allowed to challenge acquisition of the land. However, there are series of the decisions of the Apex Court taking the view that such transferees step into the shoes of owner and is entitled to claim compensation."
31. Court relied on the decisions in support of aforesaid proposition on Union of India vs. Shiv Kumar Bhargava and others, (1995) 2 SCC 427; U.P. Jal Nigam, Lucknow through its Chairman and another vs. Kalra Properties (P) Limited, Lucknow and others, (1996) 3 SCC 124; V. Chandrasekaran and another vs. Administrative Officer and others, (2012) 12 SCC 133 and Rajasthan Industrial State Development Corporation vs. Sobnath Scindhiya Corporation Housing Society, (2013) 5 SCC 427. In aforesaid judgment, Division Bench also took note of the decision in Agra Development Authority vs. State of U.P. (supra) and U.P. Avas Evam Vikas Parishad vs. Kanak and others (supra) and having seen dichotomous views in two decisions, observed in para 31 that in normal course matter would have been referred to larger Bench but since there is already an authority of Apex Court in Mrs. Khorshed Shapoor Chenai (supra), no useful purpose will be served and proceeded to decide the matter on merits by following the proposition that subsequent purchaser has right to claim compensation, which includes quantification of compensation by claiming enhancement on a reference under Section 18 of Act, 1894.
32. We find that there are some more binding authorities of Apex Court on the issue. In Ajay Krishan Shinghal etc. Vs. Union of India and others 1996 (10) SCC 721, Court in para 13 of judgment referring to its earlier decisions in State of U.P. Vs. Smt. Pista Devi and others AIR 1986 SC 2025; Gian Chand Vs. Gopala and others 1995 (2) SCC 528; Mahavir and Anr. Vs. Rural Institute, Amravati and another 1995 (5) SCC 335 and Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1995 (3) SCC 583, held that it is a settled proposition that after Notification under Section 6 is published, property under acquisition cannot be transferred and any such transaction is void. The subsequent purchaser at the best can only claim compensation of acquired land claiming interest in the land which his predecessor-in-title had.
33. In Star Wire (India) Ltd. Vs. State of Haryana and others 1996 (11) SCC 698, Court reiterated the aforesaid exposition of law. The aforesaid authorities were followed in Meera Sahni Vs. Lieutenant Governor of Delhi and others 2008 (9) SCC 177 and in para 21 of judgment, Court said as under:
"21. In view of the aforesaid decisions it is by now well settled law that under the Land Acquisition Act the subsequent purchaser cannot challenge the acquisition proceedings and that he would be only entitled to get the compensation." (emphasis added)
34. Similar question has been considered by Division Bench of this Court in First Appeal No. 804 of 2002 (Jal Sansthan, Agra Vs. Smt. Krishna Kumari), decided on 01.03.2016 and in para 31 of judgment Court said as under:
"31. Thus, submission that a subsequent purchaser has no right for all purposes including compensation has no merit inasmuch as right to receive compensation is right to property assignable under Section 6 of Act, 1882. Hence, sale-deeds executed by erstwhile owners to subsequent purchasers may not create any encumbrance on acquired land but would be valid so as to transfer right to claim compensation from erstwhile land owners to subsequent purchasers." (emphasis added)
35. This has been followed by another Division Bench in First Appeal No. 641 of 1998 (Munni Vs. Gyaneshwar Prasad), decided on 02.11.2016.
36. In view of above exposition of law, the view taken by Court below that right to claim compensation could not have been transferred by erstwhile owner to appellant as it amounts to mere right to sue, cannot be sustained. The question formulated above, is answered in favour of appellant. We hold that Court below in taking otherwise view has erred in law.
37. In the result, appeal is allowed. Judgment and award dated 16.12.2000 in Land Acquisition Case No. 4 of 1988 is set aside. Matter is remanded to Reference Court to adjudicate the same on merits.
Order Date :- 19.3.2018 AK