Punjab Wakf Board vs State of Haryana

J. S. Sekhon, J.

In pursuance of the notification dated August 16, 1983, which was published on September 20, 1983, under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act) State of Haryana sought to acquire land measuring 49 acres 1, K. 15 M from the revenue estate of Sirsa for public purpose i.e. for setting up auto Vehicles and commercial market, for Municipal Committee, Sirsa. The Land Acquisition Collector vide his award dated March 18, 1985, awarded compensation for chahi and gair mumkin land at the rate of Rs. 25,000/ per acre; while for nehri land at the rate of Rs. 20,000/ per acre. The Collector also awarded 30 per cent solatium over and above the said compensation, besides awarding compensation for tubewells, buildings etc.

Feeling dissatisfied with the adequacy of the compensation awarded by the Collector, different landholders sought references under Section 18 of the Act to the Additional District Judge, Sirsa. The learned Additional District Judge, vide his impugned award dated February 28, 1986, dividing the land in two belts visavis its location qua the Sirsa. Hissar metalled road, awarded compensation at the rate of Rs. 110/ per sq. yard regarding the land upto depth of 60 feet from the said road, while for the remaining and falling beyond that, except the acquired land of the Wakf Board, the compensation at the rate of Rs. 55/ per sq. yard was awarded. The compensation for nehri land belonging to Punjab Wakf Board was awarded at the rate of Rs. 30,000/ per acre, while the compensation for chahi and gair mumkin land was awarded at the rate of Rs. 35,000/ per acre. The learned Additional District Judge also awarded compensation for the standing structures, besides allowing other benefits provided under the amended provisions of the Act.

Still being dissatisfied with the award of the Additional District Judge, Sirsa, the Wakf Board have come up in this appeal, while the State of Haryana had filed Regular First Appeal No. 1863 of 1986, Mangat Ram and Chamba Ram lessees/tenants of the Wakf Board have filed Regular First Appeal Nos. 1280 of 1986 and 2020 of 1986 respectively for sharing the compensation of the acquired land with the Wakf Board. All these appeals shall be disposed of by this order as they arise out of the same award of the Additional District Judge, Sirsa, and rest upon the same evidence.

It is admitted by the learned counsel of both the parties that the matter regarding awarding of compensation of the acquired land is covered by the decision of this Court in Regular First Appeal No. 1707 of 1986 (Smt. Shashi Parbha v. State of Haryana and another) decided by I.S. Tiwana, J. on February 10, 1988. A perusal of the said judgment reveals that after elaborate discussion, the compensation of the land upto depth of 60 feet from the Sirsa Hissar road was enhanced to Rs. 120/ per sq. yard and of the remaining land to Rs. 60/ per sq. yard. The question then arises whether the low lying land of the Punjab Wakf Board which is located at a distance of 5/6 Killas away from the main SirsaHissar road would have same situation potential, as the land classified in belt `B'' by the learned Additional District Judge, Sirsa. In this regard there is no dispute between the parties that the entire acquired land is located within the revenue limits of Municipal Committee, Sirsa, and it forms part of one compact block. It is not disputed that some other commercial establishments are also locate towards the eastern side of this land. A perusal of the plan Exhibit P 10 prepared by Sadhu Ram, Draftsman (P. W. 3) as well as plan Exhibit P11 prepared by Shiv Narain, Architect (P.W. 6) absolutely leaves no doubt about the location of the land near the above referred commercial establishment within the municipal limits of Sirsa. These plans further reveal the existence of godowns and gas agency besides the factory of Ganga Ram a petrol pump near the acquired land. Though the land of the Wakf Board is located quite at a considerable distance of 5/6 Killas away from the said main road but its situation potential would be the same as the remaining acquired land located beyond 60 feet from the said metalled road. The question then further arises whether the land of the Wakf Board was a low lying area up to the extent of 5 to 6 feet ? In this regard, Ram Chand (R.W. 1) has stated that the rainy water collects in the land of Wakf Board which is about 516 feet deep from the surrounding area but during crossexamination this witness admitted having never seen the disputed land so far. So the evidence of this witness is of no consequence. Chamba Ram (P. W. 7), an occupant of the acquired land of the Wakf Board admitted during crossexamination that the disputed land. is a low lying area and that rain water used to collect therein. Similarly, Mangat Ram (P.W. 5) a lessee of the acquired land of the Wakf Board has also admitted that the acquired land is a low lying area. Under these circumstances, though there is no expert evidence on the file to show as to how much of earth work is required to level the acquired land, but all the same half of the normal price of the land has to be reduced on the guess work that at least this much of amount is required for levelling this land. If we reduce 1/2 out of Rs. 55/ per sq. yard, the price of the land would work up to Rs. 27.50 per sq. yard.

The question then arises whether the admission of Ali Mohammad Rent Collector of the Punjab Wakf Board (P. W. 11) during his statement that the market value of the disputed land is about Rs. 40,000/ to Rs. 50,000/ per acre on the date of its acquisition would estop the Wakf Board from claiming more compensation ? In this regard, it transpires that in reference under Section 18 of the Act the Wakf Board has claimed compensation at the rate of Rs. 200/ per sq. yard but in his statement Ali Mohammad had produced certified copies of the award of the Additional District Judge exhibits P35 and P36. A perusal of the award of the Additional District Judge, Sirsa, Exhibit P35 shows that it pertains to land located along the Barnala Road at Sirsa but beyond the municipal limits whereby the compensation of the acquired land in that case up to depth of 60 yards from the SirsaBarnala road was awarded at the rate of Rs. 685/ per marla and rest of the land at the rate of 208/ per marla while in award Exhibit P36 the Additional District Judge has awarded compensation of the land located beyond 60 yard from the SirsaBarnala road at the rate of Rs. 665/ per marla and rest of the land at the rate of Rs. 375/ per marla. The date of acquisition of land subjectmatter of these judgments was 12.6.1981 and 20.10.1982 respectively, two to one year prior to the acquisition of this land, which shows that Wakf Board has tried to prove the case that they are entitled to compensation at the rate of 60,000/ per acre. Thus, the admission on the part of Ali Mohammad (P.W. 11) cannot be said to be unintentional. If that is so, then the Wakf Board is bound by the admission of its own employee deputed to pursue this case. Keeping in view that this Court had already come to the finding that the market value of the land of the Wakf Board was Rs. 27.50 Paise per sq. yard, it transpires that the admission of the employee of the Wakf Board has to be taken to the extent of admitting that Rs. 50,000/ per acre were claimed as compensation of the acquired land.

Regarding the sharing of compensation by Magat Ram and Chamba Ram admittedly the lessees of some land under the Punjab Wakf Board, it transpires that the learned Additional District Judge has ignored their claim of compensation by holding that they were lessees and not tenants. On the other hand, the law is well settled that even a tenant at will is entitled to share compensation with the landowners of the acquired and regarding his tenancy rights. The findings of Division Bench of this Court in Piare Lal v. Col. His Highness Raja Sir Harinder Singh Brar Bans Bahadur ruler of the former Faridkot State, Faridkot etc., 1979 Current Law Journal 311 and Behari Lal v. Col. His Highness Raja Sir Harinder Singh Brar Bans Bahadur, ruler of the former Faridkot State etc., 1979 CLJ (Civil) 526 can be safely referred in support of this proposition. It was held by the Division Bench in both these cases that the landlord and tenant are entitled to share compensation to the extent of 3/4th and 1/4th respectively; but the share of landlord has to be calculated on the basis of the principle enshrined in subsections (2) and (3) of Section 18 of the Punjab Security of Land Tenures Act, 1953. It would be worthwhile to reproduce the provisions of above referred section for the sake of ready reference, which runs as under :

"(I) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than small landowner :

(i) who has been in continuous occupation for a minimum period of six years, or

(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or

(iii) who was ejected from his tenancy after the 14th day of August, 1947 and before the commencement of this Act, and who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in case of a tenant failing within clause (iii) within a period of one year from the date of commencement of this Act :

Provided that no tenant referred to in this subsection shall be entitled to exercise any such right in respect of the land or any portion thereof, if he had, sublet the land or the portion as the case may be, to any other person during any period of his continuous occupation, unless during that period the tenant was suffering from a legal disability or physical infirmity, or, if a woman, was a widow or was unmarried.

Provided further that if the land intended to be purchased is held by another tenant who is entitled to preempt the sale under the next preceding section and who is not accepted by the purchasing tenant, the tenant in actual occupation shall have the right to preempt the sale.

(2) A tenant desirous of purchasing land under subsection (1) shall make an application in writing to an Assistant Collector of First Grade having jurisdiction over the land concerned and the Assistant Collector, after giving notice to the landowner and to all other persons interested in the land and after making such inquiry as he thinks it shall determine the value of the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made.

(3) The purchase price shall be threefourth of the value of land so determined"

A perusal of the above referred provisions of Section 18 of the Punjab Security of Land Tenures Act reveals that it pertains to the purchase of land by a tenant out of the surplus area of the big landowner and not the area of small landowner. In both the above referred claims, admittedly, the tenants had opted to purchase the surplus area of the landowner and during the pendency of such proceedings, the disputed land was acquired.

The question then arises whether Mangat Ram and Chamba Ram lessees shall be entitled to purchase the same under Section 18 of the said Act. In this regard, it is noteworthy that in view of the provisions of Section 5A inserted by Haryana Amendment Act 17 of 1976 in the Haryana Ceiling on Land Holdings Act, 1972, the Punjab Wakf Board and other religious and charitable institutions had been exempted from the provisions of this Act i. e. the Haryana Ceiling on Land Holdings Act, 1972. Section 33 of the said Haryana Act repeals the provisions of the Punjab Security of Land Tenures Act, 1953 and Pepsu Tenancy and Agricultural Land Act, 1955 which are inconsistent with the provisions of Haryana Act. A reading of the provisions of Section 5A and Section 33 of the Haryana Act together clearly indicates that the tenant or lessee on the land of the Wakf Board shall not be entitled to the benefit of the provisions of Section 18 of the Punjab Security of Land Tenures Act, 1953. to purchase the land of the Wakf Board because no land of his shall be treated as surplus area or the land beyond the ceiling of land holdings provided under this Act. Thus, Mangat Ram and Chamba Ram lessees or tenants of the Board had to be treated as tenants on the land of the Wakf Board, which they were not entitled to purchase under the provisions of Section 18 of the Punjab Security of Land Tenures Act, 1953. If that is so, then Mangat Ram and Chamba Ram shall be entitled to share this compensation up to the extent of 1/4th share while the Wakf Board will be entitled 3/4th in the compensation of the acquired land awarded by this Court and not as worked out by the Collector under Section 18 of the Punjab Security of Land Tenures Act.

The observations of the Supreme Court made in Ambalal Mansukhram Joshi v. The Additional Special Land Acquisition Officer, Ahmedabad and another, AIR 1974 S.C. 591, with regard to the sharing of 2/3rd compensation by the landowners are not attracted to the facts of the case in hand as that was a case of permanent lease and in the case in hand it is a case of yearly lease.

The findings of the Andhra Pradesh High Court in Gunnam Subha Raju v. Kancherla Sarveswara Rao, 1988 All India Land Acquisition and Compensation Cases 344, relied upon by the learned counsel for the tenants are also not attracted to the facts of the case in hand as therein the controversy involved was assessment of share in the compensation between the statutory tenant and the landlord. Under these circumstances, it was held that the tenant and the landlord are entitled to share the compensation in the ratio of 40 or 60 per cent respectively, whereas that case in hand involves the lease from year to year.

The last controversy between the parties relates to the payment of compensation of the tubewell and some structure thereon to Dr. Mangat Ram. The learned counsel for the tenants contended that the evidence of Dr. Mangat Ram as well as Shri S. K. Jain, P. W. 10, a private Architect, duly establishes the value of such structure. He also made reference to the award of the District Judge holding that the Wakf Board was not entitled to any compensation for the tubewell sunk by the tenants. The learned counsel sought to make out a case of clerical mistake in the award of the Land Acquisition Collector, wherein instead of the name of Mangat Ram the compensation of Rs. 6568/ has been awarded to Ram Chand. He further contended that Ram Chand had neither filed any claim nor figured as witness in these proceedings. Due to nonavailability of the acquisition file of the Land Acquisition Collector, this Court is at disadvantage to conclude positively whether this is a clerical mistake or not. However, there is no doubt that the version of Dr. Managat Ram about sinking of the tubewell and raising construction there on remained uncontroverted before the Additional District Judge. In these circumstances, in order to avoid injustice to Dr. Mangat Ram in this regard, the Land Acquisition Collector is directed to reexamine this aspect of the matter and correct the above referred clerical mistake, if so warranted from the material on his file, and release this compensation to Mangat Ram.

For the foregoing reasons, R.F.A. No. 1706 of 1986 as well as the crossobjections filed by Mangat Ram and Chamba Ram, tenants of the Wakf Board, are accepted to the extent indicated above, while R.F.A. No. 1863 of 1996 filed by the State of Haryana stands dismissed. The claimants/respondents in all these matters shall also be entitled to an amount equal to 12% per annum over the market price from the date of the acquisition of this land i. e. from 20.9.1983 till their dispossession or the pronouncement of the award by the Collector whichever is, earlier. They shall also be entitled to 40% solatium over the above referred market price of the land and the compensation of the tubewell etc. They shall also be entitled to 9% interest for the first year from the date of their dispossession and 15% per annum onwards till the payment of the compensation. The parties are, however, left to bear their own costs in view of the peculiar circumstances of the case.