Full Judgment Text
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PETITIONER:
ASHWANI KUMAR DHINGRA
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT06/03/1992
BENCH:
YOGESHWAR DAYAL (J)
BENCH:
YOGESHWAR DAYAL (J)
KASLIWAL, N.M. (J)
CITATION:
1992 AIR 974 1992 SCR (2) 39
1992 SCC (2) 592 JT 1992 (2) 353
1992 SCALE (1)555
ACT:
Land Acquisition Act, 1894:
Ss. 4, 6, 12, 18-Land acquisition-Co-owners-Writ
petition by father and brother-No co-ownership pleaded-High
Court quashed notification concerning the two litigants
only-Other brother accepted compensation under protest and
sought reference for enhancement of compensation-Writ
petition by him after about 5 years seeking to quash same
notification-Maintainability of.
Award-Remedy of reference-Whether compensation to be
accepted only under protest.
Hindu Law:
Coparcenary-Whether can be pleaded between brothers
only excluding father.
Constitution of India:
Articles 136, 226-Plea-Not raised in writ petition-
Whether can be entertained in appeal.
HEADNOTE:
In a writ petition filed by the father and the brother
of the appellant, a Notification dated 6.8.1973 issued under
ss. 4 and 6 of the Land Acquisition Act, 1894 was quashed by
the High Court. The Letters Patent Appeal filed by the State
was dismissed by the Division Bench of the High Court, but
it restricted to quashing of the notification only in
relation to the land of the two respondents in that appeal
i.e., the father and the brother of the appellant herein.
The appellant was not a party in the writ petition
filed by his father and brother. He had accepted under
protest the compensation awarded by the Collector on
11.12.1973 and had filed applications for enhancement of
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compensation before the competent court.
In September, 1978, the appellant filed a writ petition
before the High Court seeking to quash the same Notification
dated 6.8.1973, and contended that Letters Patent Appeal was
wrongly decided inasmuch as the whole Notification, and not
part of it concerning the two respondents therein only,
ought to have been quashed. The writ petition was heard and
dismissed by the Division Bench which had decided Letters
Patent Appeal. The appellant filed the appeal by special
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leave to this Court.
It was contended on behalf of the appellant that writ
petition filed by his father and brother must have been
deemed to have been filed on his behalf also and the
decision in the Letters Patent Appeal quashing the
Notification under ss.4 and 6 of the Act "in so far as it
related to the respondents therein" included the appellant
herein also. The appellant also claimed co-
ownership/coparcenary with his brother only.
Dismissing the appeal, this Court,
HELD: 1.1 There could be no co-parcenary in the
presence of father between the brothers only by excluding
the father. No co-parcenary was pleaded by the appellant
with his father and brother. The only co-owner-ship or
coparcenary was claimed with his brother. [p44F-G]
1.2 In writ petition or in the appeal before the High
Court, neither appellant’s father nor his brother made any
representation that they were filing writ petition on behalf
of the appellant either express or by necessary implication.
That litigation by them was in their own right and they did
not plead and coparcenary with the appellant. [p44E-F]
2. One co-owner may challenge the acquisition whereas
the other co-owner may be satisfied with the acquisition and
ask for compensation and even for its enhancement; the other
brother may challenge the acquisition proceedings in his own
right; merely because one brother accepts compensation,
other brother is not estopped from challenging acquisition.
Similarly, where one co-owner challenges acquisition, his
rights will not be affected merely because other co-owner
had accepted acquisition and the compensation. [pp.44G-H,
45A]
A. Viswanatha Pillai and others v. Special Tahsildar
for Land Acquisition No. IV & Ors., AIR 1991 SC 1966,
distinguished.
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4. Section 18 of the Land Acquisition Act, makes it
clear that person interested, in order to enable him to seek
the remedy of reference can do so only if he does not accept
the Award. In order to show that the person concerned had
not accepted the Award the claimants accept the compensation
only under protest because once the compensation is accepted
without protest the person concerned may lose his right to a
reference for various matters mentioned in s.18. [p.45D-F]
5. The writ petition by the appellant was filed
approximately five years after the date of Notification
under Sections 4 and 6 of the Land Acquisition Act and after
the award. The appellant had not challenged the acquisition
of land all these years. He accepted the compensation under
protest, not with a view to safeguard his right to challenge
the acquisition itself but to safeguard his right to require
the matter being referred by the Collector for determination
of the Court in relation to the matters mentioned in Section
18 of the Land Acquisition Act. It was not shown that he
withdrew the compensation in pursuance of any order of any
Court to safeguard any other rights. This was also not his
contention before the Division Bench dismissing his writ
petition. Such a plea cannot be permitted in the instant
appeal. [p.45A-B, D, G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2977 of
1979.
From the Order dated 11.9.1978 of the Punjab and
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Haryana High Court in C.W.P. No. 3771 of 1978.
G.L. Sanghi, S.K. Mehta, Nand Lal Dhingra, Dhruv Mehta
and Aman Vachher for the Appellant.
A. S. Sohal and G.K. Bansal for the Respondent.
The Judgment of the Court was delivered by
YOGESHWAR DAYAL, J. This is an appeal by Shri Ashwani
Kumar Dhingra, Advocate, Fazilka, against the judgment of
the Punjab and Haryan High Court dated 11th September, 1978
dismissing the writ petition (c.w.p. 3771 of 1978), filed by
him. Before considering the submissions on behalf of the
appellant, it would be necessary to know a few facts.
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It appears that Sh. Sudhir Kumar Dhingra and his
father, Shri Nand Lal Dhingra, advocate had earlier filed a
writ petition (C.W.No 3465 of 1973) against the State of
Punjab for quashing Notification dated 6th August, 1973
issued under Sections 4 and 6 of the Land Acquisition Act
1894. In this writ petition, the appellant herein was not a
party. However, the learned Single judge of the High Court
by judgment dated 19th November, 1976 accepted the writ
petition and quashed the impugned notification issued under
Section 4 and 6 of the Land Acquisition Act dated 6th
August, 1973. The learned Judge in the said writ petition
also directed that the petitioners in that writ petition
would be entitled to take possession of the property on
depositing compensation. The State of Punjab being
dissatisfied filed Letters Patent Appeal against the
aforesaid judgment of the learned Single Judge dated 19th
November, 1976. The Letters Patent Appeal (No. 14 of 1977)
came up for hearing before a Division Bench of the High
Court on 9th August, 1978. After hearing the Letters Patent
Appeal, the Division Bench dismissed the appeal but modified
the order of the Single Judge to the extent that they
quashed the impugned Notification dated 6th August, 1973 "in
so far as they relate to the land of the respondents
therein." The respondents therein were only Shri Sudhir
Kumar Dhingra and his father, Shri Nand Lal Dhingra,
advocate.
The result of the said decision was that the Division
Bench restricted to quashing of the impugned Notification
only in relation to the land of the respondents in the
Letters Patents Appeal the appellant herein, Shri Ashwani
Kumar Dhingra filed a writ petition on or about 5th
September, 1978 for quashing the same Notification dated 6th
August, 1973 issued under Sections 4 and 6 of the Land
Acquisition Act.
It also appears that in pursuance of the impugned
Notification under Section 4 and 6 of the Land Acquisition
Act, the Collector had announced his award on 11th December,
1973 and the compensation awarded by the Collector was
accepted by the petitioner, Shri Ashwani Kumar Dhingra under
protest and thereafter he filed application for enhancement
o compensation before the competent court. The writ
petition filed by the present appellant came up for hearing
before the same bench which had decided the earlier Letters
Patent Appeal No. 14 of 1977 and the Division Bench passed
the following order:
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"The only contention raised before us is that in
L.P.A. No. 14 of 1977, decided on August 9, 1978,
the whole notification deserved to be quashed and
that part of the notification concerning the
respondents in that case could not legally be
quashed. In the circumstances of the case, we are
not agreeable with the learned counsel, especially
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when relief was granted to the respondent in that
letters patent appeal on the basis of the
concession that was made by Mr. Anand Swarup,
Senior Advocate, who was appearing for the
respondents. Moreover, no writ petition is legally
maintainable on the ground that a wrong concession
was made in the letters patent appeal which was
decided by us earlier, or that the decision in that
appeal was wrong.
No other point is urged before us.
For the reasons recorded above, this petition
fails and is dismissed in limine."
It is apparent from the aforesaid order of the Division
Bench that the contention urged in support of the writ
petition on behalf of the appellant was that the Letters
Patent Appeal no. 14 of 1977 was wrongly decided. Against
the aforesaid decision dated 11th September, 1978 Special
Leave petition was filed which is the subject matter of the
present appeal.
Mr. G.L. Sanghi, learned counsel for appellant relied
on the decision of this Court in A.Vishwanatha Pillai and
others r. Special Tahsildar for Land Acquisition No. IV and
others, AIR 1991 SC 1966 and submitted that the writ
petition No. 3465 of 1973 which was filed by none other than
his brother and father, it must have been deemed that the
said writ petition had been filed by his father and brother
on behalf of the appellant also. It appears to us that the
reliance by the appellant herein on the said decision is not
really appropriate. It was observed in the aforesaid
decision of the Supreme Court at page 1969:
"When one of the co-owners or coparaceners made a
statement in his reference application that himself
and his brothers are dissatisfied with the award
made by the Collector and that they are entitled to
higher compensation, it would be clear that he was
making a request, though not expressly stated so
but by
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necessary implication that he was acting on behalf
of his other co-owners or coparaceners and was
seeking a reference on behalf of right, title and
interest in the acquired property and when the
reference was made in respect thereof under Section
18 they are equally entitled to receive
compensation pro rata as per their shares".
It is clear from the aforesaid observation that the
Supreme Court found on facts that one brother who was the
co-owner and coparacener was acting on his own behalf as
well as on behalf of other brothers while seeking a
reference for enhancement of compensation. The question
there was whether the reference application filed by one
brother was on his own behalf or on behalf of other
coparaceners as well. Mr. Sanghi relying on the aforesaid
judgment submitted before us that the decision of the
Division Bench dated 9th August, 1978 in the Letters Patent
Appeal, when it quashed the Notifications under Sections 4
and 6 of the Land Acquisition Act "in so far as it related
to the respondents therein", included the appellant therein
as well
We are afraid that the decision of the Supreme Court
relied upon has no application No. 3465 of 1973 or Letters
Patent Appeal No. 14 of 1977 neither the appellant’s father
nor his brother made any representation that they were
filing writ petition on behalf of the appellant herein
either express or by necessary implication. The earlier
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litigation referred to by us was filed by Shri Sudhir Kumar
Dhingra and Shri Nand Lal Dhingra (brother and father of the
appellant respectively) in their own right only and not on
behalf of the appellant herein. Father and brother had not
pleaded any coparacenary with the appellant herein. Before
us also no co-parcenary is being pleaded by the appellant
with his father and brother. Only co-owner-ship or
coparcenary was claimed with his brother Shri Sudhir Kumar
Dhingra. There could be no coparcenary in the presence of
he father between the brothers only by excluding the father.
One co-owner may challenge the acquisition whereas the other
co-owner may be satisfied with the acquisition and ask for
compensation and even for enhancement of compensation; other
brother may challenge the acquisition proceedings in his own
right; merely because one brother accepts compensation other
brother is not stopped from challenging acquisition.
Similarly, where one
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co-owner challenges acquisition, his rights will not be
affected merely because other co-owner had accepted
acquisition and the compensation.
In the Counter affidavit filed in this court, it is
pointed out that the writ petition out of which the present
appeal arises was filed approximately five years after the
date of Notification under Section 4 and 6 of the Land
Acquisition Act and after the award and the appellant had
not challenged the acquisition of land all these years and
had, in fact, accepted the compensation under protest. Mr.
Sanghi then submitted that in the writ petition filed by the
father and brother also they were allowed by order dated
18th December, 1974 to withdraw the compensation payable to
them without prejudice to their rights in the writ petition.
It will be noticed that the order dated 18the December, 1974
was passed during the pendency of the writ petition No. 3465
of 1973 and the petitioners in that writ petition withdrew
the amount of compensation after express permission of the
High Court so that their rights in the writ petition are not
prejudiced in any way.
The acceptance of compensation under protest was not
done by the appellant with a view to safeguard his right to
challenge the acquisition itself but to safeguard his right
to require the matter being referred by the Collector for
determination of the Court in relation to the matters
mentioned in Section 18 of the Land Acquisition Act. It is
clear from the provisions of Section 18 of the Land
Acquisition Act that the person interested, in order to
enable him to seek the remedy of reference can do so only if
he does not accept the Award. In order to show that the
person concerned had not accepted the Award the claimants
accept the compensation only under protest because once the
compensation awarded in pursuance of the Award is accepted
without protest the person concerned may lose his right of a
reference for various matters mentioned in Section 18 of the
Land Acquisition Act.
It is clear in the present case that the appellant had
not challenged the ’acquisition and it was not shown to us
that he withdrew the compensation in pursuance of any court
to safeguard any other rights. It is also clear from the
order of the learned Division Bench dismissing the writ
petition, filed by the present appellant, of what contention
was urged by him before them. Learned counsel for the
appellant submitted that this was not the contention urged
by him before the High Court. We are afraid such a plea
cannot be permitted in the present appeal when the order was
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pronounced in the open court and the order was naturally to
be pronounced on the submissions made before the learned
Division Bench. If the appellant had any such grievance, he
should have approached the Division Bench with such a plea.
Thus, there is no merit in the appeal and it is
dismissed. Parties are, however, left to bear their own
costs of the present proceedings.
R.P. Appeal dismissed.
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