State of Haryana Vs. Dilbagh and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - the one fact, which cannot be disputed is that the location of village jharsa is better than other villages inasmuch as it abuts the delhi-jaipur national highway. those lands are quite adjacent and are somewhat similarly located like the lands acquired under the present notification. p5 having been con- eluded, the location of which is better than the present land, cannot be awarded higher compensation alike lands of village jharsa. p15 were also discussed in the case of kabul singh as well as in the case of suraj bhan. basically, the compensation awarded to the highest land of village jharsa in 1987 could be awarded as compensation to the claimants of the present case and setting off the increase in value of land arising from the time gap against the cut which ought to be applied for on the basis of well accepted judgment of the supreme court in the case of k. i would prefer to follow and award same compensation to the claimants of the present case as well. furthermore, the land of village jharsa is better located than other villages. 21. 1 would only express a pious wish that the state government would endeavor its best by adopting adequate measures to ensure payment of compensation to the claimants at the earliest.swatanter kumar, j. 1. the learned district judge, gurgaon, awarded compensation at the rate of rs. 12,05,500/- per acre for acquisition for their respective lands while in relation to the same notification of the same date, the learned' additional district judge gurgaon vide his judgment dated 3.12.1997 awarded to the identically situated claimants rs.265/- per square yard i.e. rs. 12,82,600/- per acre compensation for acquisition of their respective lands. this in fact itself formulates an important question for determination before this court in the above regular first appeals. 2. reference to basic facts would be necessary. government of haryana with an intention to acquire land measuring 1068.64 acres in the revenue estates of village jhasra, kanhai, binderpur and shamshpur, district gurgaon, issued a notification under section 4 of the land acquisition act, hereinafter referred to as the act on 20.4.1990. in furtherance thereto, notification under section 6 of the act was issued on 18.4.1991 and the details of the lands acquired from the aforestated respective villages as indicated in the notification is as under:- village section 4 notification section 6 notification dated 20.4.1990 dated 18.4.1991 area (in acres) area (in acres) jhasra 475.51 466.00 kanhai 579.81 516.67 binderpur 43.81 35.19 shamshpur 49.78 49.783. an area of 119.22 acres was left from the notification under section 48-a of the act being licensed area. the land acquisition collector, therefore, dealt with and passed an award no. 8 dated 23.3.1993 granting the following compensation to the claimants for their respective lands in the respective villages. village jharsa sr.no. kind of land rate per acre 1. chahi rs. 4 lacs. 2. magda rs. 3.5 lacs. 3. bhood rs. 3 lacs. 4. gair mumkin rs. 2.5 lacs. villages binderpur, shamspur and kanhai. 1. chahi rs. 1.5 lacs. 2. magda rs. 1.25 lacs. 3. banjar. gair mumkin rs. 2 lacs. 4. the land acquisition collector, however reduced, the claim in relation to the lands in village jharsa and -binderpur where the claimants had removed the earth upto depth of 5 feet to 7, feet and half rate was awarded to them of the awarded amount for that land. 5. the claimants were dissatisfied with the amount awarded to them by the learned land acquisition collector and they preferred references under section 18 of the act. in all 152 references were sent by the collector to the court of distt. judge, gurgaon. all these references were answered by different 31 judgments passed by the learned district judge/additional district judge, gurgaon. as already noticed different amounts were awarded to the claimants in these references. the learned district judge answered 152 references vide 31 judgments of different dates and awarded compensation at the rate of rs.265/- per square yard irrespective of the nature of the land and main judgment was delivered in dilbagh singh's case giving compensation of rs. 12,86,600/- per acres. while in other references the learned district judge awarded rs. 12,05,500/- per acre. all these references answered by the learned district judge vide different judgments have given rise to 374 regular first appeals before this court. these appeals are more or less based upon common evidence and are raising common question of law. learned additional district judge/district judge, in fact, has relied upon one award or the other arising from the same notification and upon enhancing the amount has granted the compensation in question. as such it will be appropriate to deal all these awards by a common judgment. the above two appeals are based upon the basic judgments granting lowest and highest compensation in relation to the same notification and for the lands acquired in the same villages. thus, i have preferred to discuss these two cases in great detail in this common judgment. 6. from the evidence on record it appears that the petitioners have examined seven witnesses and have placed on record ex.pl to ex.p.40 the sale-deeds, certified copies of the judicial pronouncements/awards and application forms and auctions held by the haryana urban development authority. the respondents examined only one witness i.e., satbir singh, patwari and tendered in evidence sale instances ex.rl to ex.r4. 7. at the outset it must be noticed that sale instances produced on record by the claimants except ex.p3 and ex.p9 have not been proved in accordance with law. the vendor and vendees of any of the sale instances except the two afore-indicated were not examined so the genuineness, authenticity and consideration of these instances have not been proved on record as per the requirement of law as held in a. p. state road transport corporation v. p. venkaiah and ors., a.i.r. 1997 supreme court 2600 and special deputy collector and anr. v. kurra sambasiva rao and ors., a.i.r. 1997 supreme court 2625. thus the sale instances except the above two indicated are inadmissible in evidence and cannot be considered by this court. for the same reason sale instances produced by the respondents being ex.r1 to ex.r4 can also be not looked into. resultantly, all these sale instances are rejected. 8. ex.p3 and ex.p4 were proved by pw6 and pw7 who were the vendor/vendees in the respective sale instances, as such they could be taken into consideration. the value indicated in ex.p3 and ex.p9 is as under- ex. area village total sale rate per rate per date of sale sold consideration sq.yd. 'acre' p.3 400sq.y. jharsa 1,80,000/- 450.00 21,78,000/- 10.1.1990 p.9 111sq.y. jharsa 50,000/- 450.00 21,78,000/- 6.11.19899. ex.p.6 to ex.p.8 are the site plans and aksh shijra showing the location of the acquired land. the oral evidence of pw2, pw5 and other claimants show that location of these villages is quite adjacent to village jharsa. the learned trial court while discussing this issue at some length and awarding the compensation the claimants held as under.- 'he also stated that the acquired land is surrounded by various huda sectors and private colonies namely d.l.f. ansal, and south city and that at the time of acquisition the market price of the acquired land was rs. 1,500/- per square yard. the claimants have also examined shri shanti narain, retired naib sadar kanungo, gurgaon, who appearing as pw1 proved site plan ex.pl, which he had prepared after visiting the acquired land situated in village shamshpur. he testified that boundaries of villages jharsa and shamshpur adjoin each other. the acquired land is situated at a distance of about 2 kms from the limits of municipal committee, gurgaon, and that huda sectors 38, 39, 40, 31, 32 and part i and part-11 of sector 15 are situated near the acquired land.'10. the cumulative effect of the above documentary and oral evidence is that the revenue estate of the village from where the land was acquired is adjacent to each other and lands for development of other sectors to be constructed by huda had already been acquired and development had been carried in that area. the one fact, which cannot be disputed is that the location of village jharsa is better than other villages inasmuch as it abuts the delhi-jaipur national highway. this location has been discussed in great detail in relation to acquisition of lands in village jharsa vide notification dated 27.8.1987 in the case kabul singh v. state of haryana, r.f.a. no.556 of 1996 decided on 13.5.1999, where the compensation was enhanced to rs.213.99 per square yard for a limited part of land adopting the belting system. 11. while awarding the compensation to the claimants, the learned trial court held as under:- ' however, this very court vide judgment, copy ex.p.5, in l.a. case no.84 of 1992 titled daya nand v. haryana state, had awarded compensation at the rate of rs.9,15,000/- per acre in respect of the land of village jharsa, acquired vide notification dated 27.8.1987. in the references in hand land of village shamshpur was acquired along with land of villages jharsa, kanhai and binderpur through one and the same notification dated 20:4.1990. there is not much of dispute and rather it stands proved from the testimony of pw1 shanti naram, retired naib sardar kanungo, that revenue estates of villages jharsa and shamshpur adjoin each other and form a compact block. as such, in view of the ratio of karnail singh's case (supra) it is a fit case where benefit at the rate of 12% increase per year deserves to be given, there is a time lag of about 31 months 3 weeks between the notification dated 27.8.1987 involved in judgment copy ex.p5 and the notification dated 20.4.1990 involved in the present references. thus, giving benefit of 31.75% increase for 31 months 3 weeks difference, over the above the compensation amount of rs.9,15,000/-per acre, awarded vide judgment ex.p5 the market price of the acquired land in question at the time of acquisition, comes to rs.12,05,512.50 per acre. the issue is decided with the finding that the market price of the acquired land at the time of -acquisition was rs. 12,05,500/- per acre (rs. twelve lacs five thousand five hundred).'12. it must also be noticed that the learned trial court while dealing with the case of dilbagh singh (supra) had granted higher compensation at the rate of rs.265/- per square yard i.e. rs. 12,82,6000/- per acre. though higher compensation was awarded but the learned trial court had totally relied upon ex.p13 in that case. ex.p13 was the judgment of the court in the case of khuba. itself vide ex.p13, as is clear from the above narrated facts, reliance was placed upon ex.p5. the learned trial court also held that ex.p10 to ex.p12 could not be relied upon fully because they related to different locations and village jharsa arising out of notification dated 27.8.1987. 13. in order to solve this tangle of inter-dependence of awards, it must be noticed that in the notification dated 27.8.1987 relating to village jharsa in the case of kabul singh, compensation was enhanced. but that compensation is lower than the compensation awarded in both the above cases. the case of daya ram ex.p5 had been decided by this court along with kabul singh's case as it arose from the same notification. 14. in the case of suraj bhan v. state of haryana, r.f.a. no.944 of 1998 decided on 13.5.1999 lands of village salokhara, islampur and jharse, which were acquired vide notification dated 22.3.1990, this court had reduced the compensation awarded from rs.265/- per square yard to rs.212/- per square yard. those lands are quite adjacent and are somewhat similarly located like the lands acquired under the present notification. the time in the present notification and earlier notification in the case of suraj bhan is less than a month, which would not materially alter or change the situation or extent of compensation payable to the claimants. 15. it is known fact that process of acquisition of land takes considerable time and it is publicly known few days in advance to the actual publication of notification under section 4 of the act. ex.p13 is under appeal before this court and is being discussed in this judgment. thus, the entire basis of ex.p13 being ex.p5 and ex.p5 having been con- . eluded, the location of which is better than the present land, cannot be awarded higher compensation alike lands of village jharsa. all other exhibits ex.p10 to ex.p13 and ex.p15 were also discussed in the case of kabul singh as well as in the case of suraj bhan. 16. the cumulative effect of the entire evidence is that the lands of villages jharsa and particularly the land abutting the national highway would get the highest compensation out of all these villages and remaining lands of village jharsa and other abutting lands of different villages would get different compensation. basically, the compensation awarded to the highest land of village jharsa in 1987 could be awarded as compensation to the claimants of the present case and setting off the increase in value of land arising from the time gap against the cut which ought to be applied for on the basis of well accepted judgment of the supreme court in the case of k.s. shivadevamma and ors. v. assistant commissioner and land acquisition officer and anr., 1996(2) supreme court cases 62. this court would have to take into consideration a formidable piece of evidence i.e. judgment in the case of suraj bhan where compensation of rs.212/- per square yard has been awarded. i would prefer to follow and award same compensation to the claimants of the present case as well. in my view it will be thus fair and equitable that the compensation awarded by learned court below is reduced to rs.212/- per square yard with all statutory benefits. 17. this approach can be supported by another point of view. there are only two sale deeds on record which are ex.p3 and p9. there the land was sold on 6.11.1989 and 10.1.1990 in village jharsa at the rate of rs.450/- per square yard. taking the value and average of the above ex.p3 and ex.p9 rs.450/- is the general price of the land which has to be reduced for determining the fair market value of the land at the relevant time and consequent compensation payable to the claimants at the time of acquisition. the land sold under ex.p3 and ex.p9 are of small pieces of lands. the same value cannot be a true index to the market value of the land in relation to such huge acquisition. furthermore, the land of village jharsa is better located than other villages. in addition to all this a deduction has to be made on account of development changes, one time expends ture of the state and other incidental and ancillary factors as indicated in the judgment of the hon'ble apex court referred in the case of k.s. shivadevamma (supra). thus, applying the deduction of 53% in terms of the judgment of the supreme court, the claimants would be entitled to get rs.209.91 per square yard. i would prefer to award to the claimants higher compensation which has been arrived at by this court on the basis of the above two principles. 18. result of the above discussion is that the appeals preferred by the state are partly accepted, while the appeals preferred by the claimants for enhancement are dismissed. the claimants would be entitled to get compensation at the rate of rs.212/- per square yard with all statutory benefits under sections 23(1-a), 23(2) and 28 of the act. however, there shall be no order as to costs. 19. before parting with these cases, it is obligatory upon this court to notice the contention commonly raised by the learned counsel appearing for various claimants to the effect that the claimants are put to great hardship and disadvantage because of non-payment of compensation by the state for the acquisition of their lands. the statutory protection provided under the provisions of the act does not safeguard their interests adequately, in the face of the rising prices, cost of living and starting of appropriate business by the claimants or their family, who are divested of their lands. far ahead is the rise in price index in terms of cost of living or commerce and cannot be fairly arid equitably set off against the prescription of statutory benefits. it is a known fact that payments are made to the claimants after years of acquisition of their lands and sometimes payments are even made, to their next generation and that too after taking recourse of prolonged execution proceedings.20. certainly these contentions carry substance and are based on practical aspect of the law of land acquisition. it is a matter of regret. the state seriously needs to ponder over this practical problem and take such measures as are permissible in law to make expeditious and effective disposal in relation to the compensation payable to the claimants for acquisition of their lands. 21. 1 would only express a pious wish that the state government would endeavor its best by adopting adequate measures to ensure payment of compensation to the claimants at the earliest. this would help the state to avoid unnecessary litigation on the one hand and saving of income-tax payers money, which otherwise is payable on account of statutory payments and interest.22. the above appeals are accordingly disposed of leaving the parties to bear their own costs.