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inder Singh and Four ors. Vs. Ram Sarup - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 5D of 1961
Judge
Reported inILR1973Delhi78
ActsLand Acquisition Act, 1894 - Sections 18
Appellantinder Singh and Four ors.
RespondentRam Sarup
Advocates: S.L. Bhatia,; H.C. Malhotra,; K.L. Budhiraja and;
Cases ReferredIn Dr. G. H. Grant v. The State of Bihar
Excerpt:
.....for his interest as lessee in respect of unexpired period of lease - government paid entire compensation for land thus not liable to pay again to lessee - respondents-owners directed to pay back amount of compensation received by them and re-distribute compensation according to law. - - as such, an appeal from such an award of the court clearly lies to the high court under section 54. in fact, shri budhiraja did not dispute the same. (18) in the view taken by us above that an appeal lay against the judgment or order of the learned additional district judge, it also follows that the civil revision filed by ram sarup is not maintainable as section 115 of the code of civil procedure clearly provides that the revisional power of the high court under the said section can be..........his due share in the compensation and the respondents to the application, who were sons of badri singh (land owner), may be directed to pay back the amount of compensation received by them and the same may be re-distributed according to law. the land acquisition collector accordingly referred the ease to the court of the district judge, delhi. (3) the respondents to the application filed a written statement and a further written statement opposing the application and contended, inter alia, that ram sarup had not been declared bhumidar of the land in question, that certain other persons had become bhumidars of the land and were, thereforee, necessary parties, that ram sarup was not a lessee but a mortgagee of the land in dispute for a fixed period of twenty years, and that under section.....
Judgment:

T.V.R. Tatachari, J.

(1) Regular First Appeal No. 5-D of 1961 and the Civil Revision No. 55-D of 1961 are both directed against the judgment of Shri Gurbachan Singh, Additional District Judge, Delhi, dated October 1, 1960, and they can be disposed of by a common judgment.

(2) The facts which have given rise to the appeal and revision are briefly as follows. Certain land measuring 1458 big has 9 bids was belonged to Inder Singh and five others who are sons of Shri Badri Singh. The land is situated at village Khampur, Delhi. The said land was acquired by the Delhi State Government in 1955 under the land Acquisition Act, and the Collector gave his award on March 23, 1956. One of the claimants, Ram Sarup, filed an application before the Land Acquisition Collector under sections 18 and 30 of the Land Acquisition Act. in that application, he alleged that the aforesaid land was leased out to him for a period of twenty years, viz. from 1939 to 1959. under an order of the Court of the Senior Subordinate Judge, Delhi, in execution of his decree against Badri Singh, that he was a person interested in the compensation awarded by the Collector, that he had also become the bhumidar of that land and as such was entitled to compensation for the unexpired portion of the lease, that the Collector erred in assuming that he was a mortagee ignoring the fact that he was lessee and was thus interested in and entitled to a share in the compensation, and that the case may, thereforee, be referred to the Court so that he may get his due share in the compensation and the respondents to the application, who were sons of Badri Singh (land owner), may be directed to pay back the amount of compensation received by them and the same may be re-distributed according to law. The Land Acquisition Collector accordingly referred the ease to the Court of the District Judge, Delhi.

(3) The respondents to the application filed a written statement and a further written statement opposing the application and contended, inter alia, that Ram Sarup had not been declared bhumidar of the land in question, that certain other persons had become bhumidars of the land and were, thereforee, necessary parties, that Ram Sarup was not a lessee but a mortgagee of the land in dispute for a fixed period of twenty years, and that under section 15 of the Delhi Land. Reforms Act the proportionate share of the mortgage money due to him was deposited in. the Court of the Revenue Assistant and, thereforee, the mortgage stood redeemed and Ram Sarup was not entitled to any compensation. In the alternative, they pleaded that Ram Sarup had alienated his rights in the land in favor of two persons Ishar Singh and Dharam Singh, and, thereforee, he had no interest left in the land in dispute and the application for reference was incompetent. They also pleaded that the reference was barred by time.

(4) Ram Sarup filed a replication and a further replication. In the latter replication he admitted that be had not been declared as bhumidar of the land in question and applied for amendment of his application by impleading Dharam Singh and 26 other as parties as they had been declared as bhumidars in respect of the land in question. He was permitted to amend the application, but all the said persons in spite of service of notices, remained absent, and consequently they were set exparte. In his replications, Ram Sarup pleaded that he was not the mortgagee of the land in dispute but was a lessee thereof for a period of twenty years which was to expire in 1959. that it was true that he sublet the whole of the land in 1945 to Ishar Singh and Dharam Singh but the said persons were declared insolvents and a sub-lease in their favor came to an end in consequence of the said adjudication, that in any case when the land was acquired by the Government in 1955, the relationship of landlord and tenant between him and Ishar Singh and Dharam Singh came to an end and the lessee rights in that land reverted to him for the remaining period of 4' years, and that he was thereforee, entitled to apportionment of the compensation in respect of his interest in the land for the said 4.1/2 years.

(5) On the aforesaid pleadings, the following issues were framed :-

'1. Whether the claimant Ram Sarup became the lessee of the land in dispute for 20 years in execution of his decree against Badri Singh, father of the respondents 1 to 6, and from which date? 2. Whether the claimant is a person interested although he has sublet the land in dispute in favor of Ishar Singh Dharam Singh? 3. If issue No. 2 is not proved whether this reference is maintainable? 4. Whether the claimant or his sub-lessees were mortgagees of the land in dispute and the said mortgage has been redeemed under the Delhi Land Reforms Act? 5. In case it is proved that the claimant was a lessee and not mortgagee, could the lease be terminated and had it been terminated validly? 6. Whether the present reference is in time: if not. what is its effect? 7. Is the claimant entitled to any compensation in lieu of the lessee rights in the land in dispute and how much? 8. Relief.'

(6) By his judgment, dated October 1, 1960, Shri Gurbachan Singh, Additional District Judge, Delhi, decided all the issues in favor of Ram Sarup. As regards relief, he held that because of the earlier termination of the lease by virtue of the acquisition of the land by the Government, a proportionate amount of Rs. 385.88 was payable to Ram Sarup by the respondents who were the legal representatives of the original owner Badri Singh.

(7) Against the said judgment, Inder Singh and others the leg.al representatives of Badri Singh, filed the present Regular First Appeal in which they raised the only contention that the proportionate amount of compensation of Rs. 385.88 nP which was found to be payable to Ram Sarup should have been directed to be paid by the Government who had acquired the land for its own purpose. Their contention was that the said proportionate compensation was in respect of the interest of Ram Sarup as lessee for the unexpired period of the lease, that the lease in favor of Ram Sarup had been cut short only because of the acquisition by the Government and the compensation thereforee was, thereforee, payable to Ram Sarup for the said unexpired period by the Government and not by them, and that the compensation paid to them was awarded on account of the fact that they were the owners of the land acquired and they had been deprived of its ownership. On the other hand. Ram Sarup filed the present Civil Revision against the judgment of the learned Additional District Judge, Delhi, claiming that he was entitled to the whole of the compensation amount of Rs. 2,73,314.02. awarded to the sons of Badri Singh, or in any case he was entitled to a sum of Rs. 55,000 or at least Rs. 6.700.

(8) In the Regular First Appeal, Shri Budhiraja, learned counsel for the respondent raised a preliminary objection that no appeal lay against the order of the Additional District Judge. The learned counsel contended that although both sections 18 and 30 of the Land Acquisition Act were mentioned in the application for reference, it was strictly an application filed under section 30 and not under section 18, and that no appeal lay against the judgment or order of, the Additional District Judge passed on a reference under section 30. For a proper appreciation of the contention, reference has to be made to a few sections of the Land Acquisition Act. Section 54 of the Act provides for an appeal to the High Court only 'from the award, or from any part of the award, of the Court'. The word 'Court' refers to the principal Civil Court of original jurisdiction (vide section 3(d) of the Act), i.e. the Court of the District Judge, Delhi, in the present case. The word 'award' has not been defined in the Act. It is, however, clear from sections 11, 18, 25, 26 and 27 of the Act that the judgment or order passed by the District Judge on a reference under section 18 is an 'award' within the meaning of Section 54. Under section 11, the Collector, after completing the proceedings under the earlier sections, has to make an award setting out-

'(I)the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.'

(9) Part Iii of the Act which contains sections 18 to 28 deals with 'Reference to Court and the procedure thereon.' Section 18 provides as follows:-

'18(1)Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.'

(10) On a reference under section 18, the Court has to proceed as provided in sections 20 to 25. Section 25 contains the expression 'amount awarded by the Court' showing that the order of the Court in the reference is an award by the Court. This is made clear by the expression 'every award under this Part' in section 25 and the expression 'every such award' in section 27. There can thus be no doubt that the order of the Court on a reference under section 18 is an 'award' within the meaning of section 54 of the Act. As such, an appeal from such an award of the Court clearly lies to the High Court under section 54. In fact, Shri Budhiraja did not dispute the same. The argument of the learned counsel was that the application for a reference filed by Ram Sarup to the Court was an application under section 30 of the Land Acquisition Act and not under section 18, that the judgment or order of the Court on the said application under section 30 was not appealable under section 54. The question whether a judgment or order of the Court on a reference under section 30 is appealable or not would arise only if the application for reference filed by Ram Sarup was strictly one under section 30 and not under section 18. We shall, thereforee, first consider whether the application was filed under section 18 or under section 30 of the Act.

(11) Part Iv of the Act which consists of sections 29 and 30 deals with 'Apportionment of Compensation'. The said sections provide as under:-

'29.Where there are several persons interested, if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the apportionment.'

'30.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.'

(12) We are concerned only with section 30 in the present case. It has to be noted that the Collector has to record in his award under section 11, (i) the true area of the land, (ii) the compensation which in his opinion should be allowed for the land, and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. Under section 18 any person interested who has not accepted the award may apply for reference to the Court objecting to either the measurement of the land, or the amount of the compensation, or the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Such an application has to be filed within six weeks from the date of the Collector's award if the applicant was present or represented before the Collector at the time when the award was made. In other cases, the application has to be made within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period expires first. Thus, an application for reference under section 18, is subject to certain periods of limitation. On the other hand, section 30 empowers the Collector to make a reference to the Court as regards two matters, viz. (i) the apportionment of the compensation and (ii) the persons to whom the compensation is payable, if a dispute arises as to either of the said matters when the amount of compensation has been settled by him under section 11. The section docs not prescribe any period of limitation. In Dr. G. H. Grant v. The State of Bihar, : [1965]3SCR576 , the Supreme Court by a majority held that the Collector can refer the question of apportionment under section 30 of the Act to the decision of the Court even after making the award under section 11 fixing the compensation for the land acquired and apportioning the same among the persons interested in the land. In dealing with the said question, after referring to sections 18 and 30, it was observed in the majority judgment as follows :-

'Aperson who is shown in that part of the award which relates to apportionment of compensation and who is present either personally or through a representative, or on whom a notice is served under sub-s(2) of S. 12, if he does not accept the award, must apply to the Collector within the time prescribed under sub-s. (2) of S. 18 to refer the matter to the Court. But a person who has not appeared in the acquisition proceeding before the Collector, if he is not served with notice of the filing, may raise a dispute relating to apportionment or to the persons to whom it is payable, and apply to the Court for a reference, under S. 30, for the determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. Whereas under section 18 an application made to the Collector must be made within the period prescribed by Cl. (b) of sub-s(2), of S. 18, there is no such period prescribed under S. 30. Again, under S. 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is, under S. 30, not enjoined to make a reference; he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.'

(13) On a plain reading of sections 18 and 30, and in the light of the observations of the Supreme Court, the following points of contrast between section 18 and section 30 emerge. Under section 18-

(A)a person who was present or represented before the Collector has to file the application under section 18 for reference within six weeks from the date of the Collector's award, while in other cases, the application has to be filed within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period expires first; (b) the person who wants to file an application for reference, provided he is within the periods mentioned in section 18(2)(a) and (b), can file the application under section 18 as of right; and (c) when such an application is filed within time the Collector is bound to make the reference.

(14) On the other hand, in the case of a reference under section 30-

(A)the reference may be made either on an application by a person interested or by the Collector sue motu, and there is no period of limitation therefore; (b) the person cannot claim to file an application as of right; and (c) the Collector, is not bound to make a reference either on an application or suo motu, and the same is within his discretion.

(15) In the present ease, the application was filed by Ram Sarup within the period mentioned in section 18. thereforee, the application has to be regarded as one filed under section 18. It is true that, as pointed out by Shri Budhiraja, Ram Sarup was not present or represented in the proceedings before the Collector. But, that circumstance need not necessarily mean that the application by Ram Sarup was not under section 18. There is nothing in section 18 which precludes a person who was not present or represented in the proceedings before the Collector from filing an application under section 18 within the time prescribed therein. thereforee, merely because Ram Sarup was not present or represented in the proceedings before the Collector, it cannot be said that the application, which was filed by him within the time prescribed by section 18, was not an application under section 18. Further, when Ram Sarup became aware of the award within the time prescribed by section 18, firstly he was entitled to file an application for reference under section 18 as of right, and secondly the Collector was bound to make the reference on such an application. It cannot, thereforee, reasonably be said that Ram Sarup instead of filing an application under section 18, which had the two aforesaid advantages, preferred to file the application under section 30 which was not maintainable as of right and which was subject to the discretion of the Collector. Taking all the aforesaid circumstances into consideration, we are of the opinion that the application filed by Ram Sarup was one under section 18 and not under section 30. It, thereforee, follows that the judgment or order of the learned Additional District Judge, in the reference made by the Collector on that application, was an award within the meaning of section 54, and the appeal, R.F.A. No. 5-D of 1961, filed by Inder Singh and others against that award was maintainable. In that view. we reject the preliminary objection raised by Shri Budhiraja.

(16) In the view taken by us that the application field by Ram Sarup was one under section 18 of the Land Acquisition Act. it is not necessary to go into the other question as to whether a judgment or order of a District Judge on a reference under section 30 of the said Act is appealable under section 54 or not.

(17) On the merits, Shri S. L. Bhatia, learned counsel for the appellants, contended that the proportionate amount of compensation of Rs. 385.88 which was found to be payable to Ram Sarup should have been directed to be paid by the Government who had acquired the land. His argument was that the said proportionate compensation was in respect of the unexpired period of the lease, that the lease in favor of Ram Sarup had been cut short only because of the acquisition by the Government and the compensation thereforee was, thereforee, payable to Ram Sarup for his interest as lessee for the said unexpired period of lease by the Government and not by them. and that the compensation paid to them was awarded on account of the fact that they were the owners of the land acquired and they had been deprived of their ownership. The contention is untenable. The entire compensation fixed by the Collector for the land in question was paid to the appellants, and no portion of it was paid to Ram Sarup by the Collector. On reference, the learned Additional District Judge held that Ram Sarup was a lessee. and as such was entitled to a proportionate share in the compensation for his interest as lessee in respect of the unexpired period of the lease, namely, 4' years. So far as the Government is concerned, it has paid the entire compensation for the land, and is not, thereforee, liable to pay again to Ram Sarup. It is the appellants, who have received the entire compensation for the land, who are liable to pay the proportionate amount of Rs. 385.88 nP to Ram Sarup. The direction given by the learned Additional District Judge is thus quite Correct. The appeal, thereforee, fails, and is dismissed, but in the circumstances without costs.

(18) In the view taken by us above that an appeal lay against the judgment or order of the learned Additional District Judge, it also follows that the Civil Revision filed by Ram Sarup is not maintainable as section 115 of the Code of Civil Procedure clearly provides that the revisional power of the High Court under the said section can be invoked only if no appeal lies against the decision sought to be revised. The Civil Revision No. 55-D of 1961 is, thereforee, dismissed, but in the circumstances without costs.


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