Union of India (Uoi) Vs. Fauja Singh - Court Judgment

Excerpt:
property - acquisition - section 3(i)(b) of requisitioning and acquisition of immovable property act, 1952 - competent authority acquired land of respondents and assessed compensation - respondents sought enhancement of compensation before trial court under section 3(i)(b) of act - compensation enhanced - respondents sought further enhancement - rejected - respondents filed letters patent appeal - granted solatium and compensation - respondents filed suit before apex court as well as petitioner filed special leave petition against order of letters patent bench - apex court set aside order of letters patent bench up to extent of solatium - respondents filed execution of award - hence present revision - held, relying on case of union of india v. hari krishan khosla court opined that respondents were entitled to principal amount of compensation - respondents not entitled to solatium and interest - revision allowed in part - 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. - 1. by a common judgment, this court proposes to dispose of the present revision as well as civil revision nos. both the set of cases, one filed by the petitioner and the other by the respondents, were finally disposed of by the hon'ble supreme court on 2.3.1995 by setting aside the order of the high court to the extent of granting benefits of enhanced solatium and interest as well as the award of the arbitrator granting solatium and interest. hari krishan khosla (supra) as well as in sadhu singh and anr. no such solatium and interest, as awarded by the learned arbitrator as well as the enhanced solatium and interest as granted by the letters patent bench of this court, is payable to the respondents in view of the law laid down in union of india v. hari krishan khosla's case (supra) as well as in sadhu singh case (supra). 15. resultantly, the revisions are partly accepted.t.p.s. mann, j.1. by a common judgment, this court proposes to dispose of the present revision as well as civil revision nos. 1458, 1459, 1460, 1461, 1462, 1463, 1464, 1465, 1466, 1467 and 1468 of 2005, as all of them arise out of a common order passed by additional district judge, bathinda on december 02, 2004. however, the facts are taken from the present revision.2. land measuring about 632 acres situated in village mehna, tehsil and district bathinda was requisitioned on 7.12.1972, under section 23(1) of the defence of india act, 1971 (for short 'the act')- subsequently, it was acquired on 28.12.1974 under section 30 of the act. vide order dated 6.2.1975 the competent authority assessed the compensation as follows:(a) flat rate of 40 karam the road irrespective of : rs. 13,000/- per acreclassification of land(b) nehri/chahi : rs. 11,000/- per acre(c) barani : rs. 7,500/- per acre(d) gair mumkin/banjar : rs. 3,840/- per acre(e) chahi mustar : rs. 9,000/- per acre3. aggrieved of the assessment arrived at by the competent authority, the respondents filed application under section 3(i)(b) of the requisitioning and acquisition of immovable property act, 1952 for the appointment of an arbitrator. having been so appointed as an arbitrator, learned additional district judge, bathinda passed an award on 31.3.1983 and determined the market value of the acquired land as under:(a) nehri, chahi, nehri chahi andchahi mustar land : rs. 21,000/- per acre(b) barani : rs. 17,600/- per acre(c) banjar and gair mumkin : rs. 8,800/- per acrebesides, 15% solatium and 6% interest on the total amount of compensation and solatium with effect from the date of acquisition, dated 20.1.1975 was awarded. the respondents then filed an appeal in this regard which was, however, dismissed on 22.8.1984. thereafter, they filed a letters patent appeal, which was, disposed of on 12.12.1981 in which the market value was determined as under:(a) for the land situated on either side ofnational highway : rs 16.80 per sq. ydleading from bathinda to barnala upto a depth of 500 meters(b) for the land up to a depth 500 meters from themunicipal limits/fencing of the cantonment or from rs. 16.00 per sq. yd.the boundary of iii phase of urban estate of bathinda town.(c) for rest of the acquired land. rs. 8.50 per sq. yd.the letters patent bench also granted solatium at the rate of 30% and increased rate of interest as per section 23(2) and section 28 of the land acquisition act (as amended).4. the respondents then moved the hon'ble supreme court seeking enhancement of compensation, whereas the petitioner also followed likewise so as to seek the setting aside of the order passed by the high court while enhancing the compensation. the challenge of the union of india in its special leave petitions filed in the hon'ble supreme court was only against the grant of solatium and interest in view of the law laid down by the hon'ble supreme court earlier in union of india v. hari krishan khosla (d) by l.rs.j : 1992(2)scale621 . while issuing notice in the s.l.p. the hon'ble supreme court granted interim stay with regard to the amount of solatium and interest. both the set of cases, one filed by the petitioner and the other by the respondents, were finally disposed of by the hon'ble supreme court on 2.3.1995 by setting aside the order of the high court to the extent of granting benefits of enhanced solatium and interest as well as the award of the arbitrator granting solatium and interest. the respondents were held entitled to the principal amount of compensation determined by the high court and the arbitrator. pursuant thereto, the union of india deposited a consolidated cheque for a sum of rs. 1,22,86,360/- on 30.3.1996 with the executing court. the land owners later on sought recalling of the order dated 2.3.1995 but their applications were dismissed on 11.11.2002.5. in the meantime, after rendering of the decision by this court in their letters patent appeal, the respondents applied for execution of the award. they also claimed that their land fell within the 1st/2nd category, being within 500 meters from the national highway leading from bathinda to barnala and also within 500 meters from the fencing of the cantonment and as such they were entitled to compensation at the rate of rs. 16.80 per sq. yd./rs. 16.00 per sq. yd. however, vide impugned order, learned additional district judge, bathinda dismissed the objections raised by the union of india that the claimants were not entitled to the benefits of solatium and interest granted by the high court even in view of the decision of the hon'ble supreme court in union of india v. hari krishan khosla (supra). accordingly, union of india was directed to make the payment as awarded by the high court while deciding the letters patent appeal. the claimants/respondents were also found successful in proving that their land fell in 1st and 2nd category, as it was situated within 500 meters, from the national highway and also within 500 meters from the fencing of the cantonment. thus, the present revision filed by the union of india under article 227 of the constitution of india.6. i have heard learned counsel for the parties.7. it has come in the testimony of rachhpal singh dhw-i that the land, as comprised in rect. nos. 46, 88, 85 and 89, fell down 500 meters from the fencing of the cantonment out of which rect. nos. 85, 88 and 89 also fell within 500 meters from the bathinda-barnala road. similarly, lands situated in rect. nos. 105, 110, 111, 112, 32, 33, 103, 43, 92, 31, 45, 91, 90, 91, 92, 103 and 43 fell within a distance of 500 meters of cantonment/bathinda barnala road. another witness produced by the decree-holders, namely, mohinder singh dhw-2 stated that the entire land fell within 500 meters from the fencing of cantonment and, therefore, the land owners were entitled to compensation for the same at the rate of rs. 16 per sq. yd. site plans exhs.dhw1/a and dhw/2 corroborate the stand taken by dhw1 and dhw-2.8. the judgment debtors made a half hearted attempt to wriggle out of the categories created by the collector. however, when the division bench of this court, while deciding the letters patent appeal created three different belts, first one consisting of the land situated on either side of national highway leading from bathinda to barnala upto a depth of 500 meters, second one of land upto a depth of 500 meters from the municipal limits/fencing of the cantonment or from the boundary of 3rd phase of urban estate of bathinda town and the last one for rest of the acquired land, these belts will have to prevail. even otherwise, there is no material available on the record from which it could be determined that the belts created had no relevance once the matter stands decided by the letters patent bench.9. in view of the above, the finding arrived at by the learned executing court in respect of the claimants falling in different belts does not call for any interference and is, accordingly, maintained.10. the main issue in the case is regarding the benefits of solatium and interest. to begin with, learned arbitrator had granted solatium at the rate of 15% and interest at the rate 6% on the total amount of compensation and solatium. these rates were enhanced by this court while deciding the letters patent appeal by holding that the claimants were entitled to solatium at the rate of 30% and increased rate of interest as per section 23(2) and section 28 of the land acquisition act (as amended).11. the controversy regarding payment of solatium and. interest has already been settled by the hon'ble supreme court in union of india v. hari krishan khosla (supra) as well as in sadhu singh and anr. v. union of india and anr. s.l.p. no. 3716 of 1993, decided on 2.3.1995. for facility of reference, the relevant portion of the judgment of hon'ble supreme court in sadhu singh's case (supra) is reproduced hereinbelow:in view of the judgment of this court in union of india v. hari krishan khosla (1993) supp.2 s.c.c. 149, the appeals of the union of india are allowed. the awards and decrees of the high court to the extent of granting benefits of enhanced solatium and interest and the award of the arbitrator granting solatium and interest are set aside. the claimants are entitled to the payment of principal amount of compensation determined by the high court and the arbitrator. the union of india is directed to make the payment within six months from the date of the receipt of this order.12. learned executing court held in the impugned order that the law laid down by hon'ble supreme court in union of india v. hari krishan khosla (supra) shall have no effect in view of the circumstances of the case as benefits of solatium and interest were granted to the claimants about 13 years back and that the directions issued by it, i.e. the executing court after the framing of the issues to pay the enhanced amount within six months had not been complied with.13. it is true that the enhanced solatium and interest was awarded, by the letters patent bench on 12.12.1991 and after the filing of the execution application, the issues were framed on 21.5.1994, but at the same time another fact, which cannot be lost sight of is that the union of india on the one hand and the claimants on the other moved the hon'ble supreme court by filing their respective s.l.ps. against the decision dated 12.12.1991 of the letters patent bench which came to be finally disposed of on 2.3.1995 and when the notice was issued in the s.l.ps. filed by the union of india on 21.11.1995, the hon'ble supreme court had granted interim stay with regard to the amount of solatium and interest. the s.l.ps. came to be finally disposed of by the hon'ble supreme court on 2.3.1995 and the orders granting benefits of enhanced solatium and interest as awarded by this court and of the solatium and interest as awarded by the arbitrator were set aside. the claimants were held entitled to the payment of principal amount of compensation determined by this court and the arbitrator. although, the hon'ble supreme court had directed the union of india to make the payment within six months from the date of the receipt of the order dated 2.3.1995, yet it was only about a year thereafter that union of india deposited a consolidated cheque no. h-331741, dated 30.3.1996 for rs. 1,22,86,360/- with the executing court which amount included the compensation payable to the respondents.14. in view of the above, the objections raised by the union of india that the respondents were not entitled to the benefit of solatium and interest have been wrongly dismissed by the learned additional district judge, bathinda. no such solatium and interest, as awarded by the learned arbitrator as well as the enhanced solatium and interest as granted by the letters patent bench of this court, is payable to the respondents in view of the law laid down in union of india v. hari krishan khosla's case (supra) as well as in sadhu singh case (supra).15. resultantly, the revisions are partly accepted. the impugned order, in so far as it relates to the finding arrived at by the executing court in regard to the land of the claimants falling in different belts, is upheld. however, as regards the objection raised by the union of india in respect of the payment of solatium and interest, the impugned order is set aside. the respondents are not entitled to the grant of solatium and interest as initially granted by the learned arbitrator and also the enhanced solatium and interest as later on granted by this court, while deciding the letters patent appeal.