Holding

There was no coparcenary between the appellant and his father, the earlier writ petition was not filed on his behalf, and each co‑owner may independently challenge acquisition; acceptance of compensation under protest does not extinguish the right to a reference under Section 18, so the appeal is dismissed.

Summary

The father and elder brother of Ashwani Kumar Dhingra filed a writ petition in 1973 challenging a notification dated 6 August 1973 issued under Sections 4 and 6 of the Land Acquisition Act, 1894. The Punjab and Haryana High Court quashed the notification for them, and the State’s letters‑patent appeal was dismissed, but the quash order was limited to the land of those two petitioners. Ashwani, who was not a party to the earlier petition, accepted the compensation awarded on 11 December 1973 under protest and later filed his own writ petition in 1978 seeking to quash the whole notification. The High Court dismissed his petition and the matter reached the Supreme Court. The Court held that no coparcenary existed between Ashwani and his father, that the earlier petition was not filed on his behalf, and that each co‑owner may independently challenge acquisition; acceptance of compensation under protest does not forfeit the right to seek a reference under Section 18. Consequently, the appeal was dismissed.

Issues considered

Whether a coparcenary can be pleaded between brothers to the exclusion of the father under Hindu law.
Whether a writ petition filed by the father and brother can be deemed to be filed on behalf of the appellant.
Whether acceptance of compensation under protest bars the right to seek a reference under Section 18 of the Land Acquisition Act, 1894.
Whether a co‑owner who accepts compensation is estopped from challenging the acquisition.
Whether the appeal is maintainable despite the non‑mention of Articles 136 and 226.

Legislation cited

Land Acquisition Act, 1894s. 12, s. 18, s. 4, s. 6

Subjects

Land acquisitionCoparcenaryCo‑ownershipCompensation under protestSection 18Writ petitionLetters patent appealHindu lawEstoppel

Judgment

ASHWANI KUMAR DHINGRA A
v.
STATE OF PUNJAB

MARCH 6, 1992

[N. M. KASLIWAL AND YOGESHWAR DAYAL, JJ.J B

Land Acquisition Act, 1894:

Ss. 4, 6, 12, 18--Land acquisition-Co-owne~Writ petition by father
and brother-No co-ownership pleaded-High Court quashed notification C
-~ 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-Main-
tainability of

Award-Remedy of reference-Whether compensation to be accepted D
only under protest.

Hindu Law:

Coparcenary-Whether can be pleaded between brothers only excluding
father. E
Constitution of India:

-
Articles 136, 226-f'lea-Not raised in writ petition-Whether can be
entertained in appeal.
F
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 Acquisi-
tion 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 G
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 H
39
40 SUPREI\.fE COURT REPORTS [1992] 2 S.C.R.

A 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
B 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 leave to this Court.

It was contended on behalf of tf!e appellant that writ petition filed
by his father and brother must have been deemed to have been filed on his
C 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 ' ]aimed co-ownership/coparcenary with his brother only.

D 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]
E
1.2 In writ petition or in the appeal before the High 1 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

F
not plead and coparcenary with the appellant. [p44E-F]

2. One co-owner may challenge the acquisition whel'Eas 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 acquisi·
tion proceedings in his own right; merely because one brother accepts
G 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 Acquisi-
H tion No. W & Ors., AIR 1991 SC 1966, distinguished.
A. K. DHINGRA v. STATE [DAYAL, J.] 41

4. Section 18 of the Land Acquisition Act, makes it clear that person A
interested, in order to enable him to seek the remedy or 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 compen·
sation only under protest because once the compensation is accepted
... without protest the person concerned may lose his right to a reference for B
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 C
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 men·
tioned 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 D
safeguard any other rights. This was also not his contention before the
Division Bench dismissing his writ petition. Such a plea cannot be per·
mitted in the instant appeal. [p.45A-B, D, G·H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2977 of
wn E
From .the Order dated 11.9.1978 of the Punjab and Haryana High
Court in C.W.P. No. 3771of1978.

- G.L. Sanghi, S.K. Mehta, Nand Lal Dhingra, Dhruv Mehta and
Aman Vachher for the Appellant. F
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 G
Dhingra, Advocate, Fazilka, against the judgment of the Punjab and
Haryana High Court dated 11th September, 1978 dismissing the writ
petition (C.W.P. 3771 of 1978), filed by him. Before considering the sub-
missions on behalf of the appellant, it would be necessary to know a few
fucffi. H
42 SUPREME COURT REPORTS (1992] 2 S.C.R.

A It appers that Sh. Sudhir Kumar Dhingra and his father, Shri Nand I
Lal Dhingra, advocate had earlier filed a writ petition (C.W.No. 3465 0f ,"'-.
1973) against the State of Punjab for quashing Notifications 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 ...
B November, 1976 accepted the writ petition and quashed the impugned
Notification issued under Sections 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
c Punjab being dissatisfied filed .Letters Patent Appeal against the aforesaid x___.......
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
D
impugned Notification dated 6th August, 1973 "in so fat 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, advo-
cate.

E 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 Letter Patents Appeal. It appears that after the dismiss-
al of the aforesaid Letters Patent Appeal the appellant herein, Shri Ash-

F
wani Kumar Dhingra filed a writ petition on or about 5th September, 1978
for quashing the same Notifications 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
_,.)...
Sections 4 and 6 of the Land Acquisition Act, the Collector had announced
his award on 11th December, 1973 and the compensation awarded by the
G Collector was accepted by the petitioner, Shri Ashwani Kumar Dhingra
under protest and thereafter he filed applications for enhancement of
compensation before the competent court. The writ petition filed by the
present appellant came up for hearing before the sanie bench which had
decided the earlier Letters Patent Appeal No. 14 of 1977 and the Division
H Bench passed the following order:
AK. DHINGRA v. STATE (DAYAL, J.] 43

.,,.i. "The only contention raised before us is that in L.P.A. Nq. 14 A
of 1977, decided on August 9, 1978, the whole notification
deserved to be quashed and that part of the notification con-
cerning 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 when relief was granted to
B
,...... the respondent . in that letters patent appeal on the basis of the
concession that was made by Mr. Anand Swarup, Senior Ad-
vocate, who was appearing for the respondents. Moreover, no
~it 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 c
wrong.
-4..
No other point is urged before us.

For the reasons recorded above, this petiton fails and is
dismissed in limine." D

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
E
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 v. Special Tahsildar for
Land Acquisition No. JV 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
F
~ had been filed by his father and brother on behalf of the appellant also. It
A 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:
G
"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 H
44 '.'UPREME COURT REPORTS [1992] 2 S.C.R.

A necessary implication that he was acting on behalf of his other )...._
co-owners or coparceners and was seeking a refemce on behalf
of other co-owners as well.What was acquired was their totality
of right, title and interest in the acquired property and when
the references was made in respect thereof under Section 18
they are equally entitled to receive compensation pro rata as
B per their shares".
-<
It is clear from the aforesaid observation that the Supreme Court

c
found on facts that one brother who was the co-owner and coparcener 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 coparceners 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
D 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 to the facts of the present case. In the writ petition No.
E 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 litigation referred to by us was filed by
Shri Sudhir Kumar Dhingra and Shri Nand Lal Dhingra (brother and .........
F 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- -A
ship or coparcenary was claimed with his brother Shri Sudhir Kumar
Dhingra. There could be no coparcenary in the presence of the father
G 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 eiihancement of
compensation; other brother may challenge the acquisition proceedings in ,.<:
his own right; merely because one brother accepts compensation, other
H brother is not estopped from challenging acquisition. Similarly, where one
AK. DHINGRA v. STATE (DAYAL, J.] 45

co-owner challenges acquisition, his rights will not be affected merely A
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 Sections 4 and 6 of the Land B
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 C
the order dated 18th 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.
D
The acceptance of compensation under protest was not done by the
appellant with a view to safeguared 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 men-
tioned 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 E
interested, in order to enable him to seek the remedy of reference can do
T 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 compen-
sation only under protest because once the compensation awarded in
- pursuance of the Award is accepted without protest the person concerned F
may lose his right of a reference for various mattters 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 compen-
sation in pursuance of any order of any court to safeguard any other rights. G
It is also. clear from the order of the learned Divison 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
WM 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 H
46 SUPREME COURT REPORTS [1992) 2 S.C.R.

A pronounced in the open court and the order was naturally to be
pfrothnounced. on thhedsubmissiohns ~ade befohre thheullde~ed DivisionhBdenchh. _)..___
1 e appe11ant a any sue gnevance, e s o .,..ve approac e t e
Division Bench with such a plea.

Thus, there is no merit in the appeal and it is dismissed. Parties are,
B however, left to bear their own costs of the present proceedings.
R.P. Appeal dismissed.

·-