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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                                                        40 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.                                                        41      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.                                                        42      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:                                                        43           "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                                                        44          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                                                        45 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                                                        46

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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.                                                        47