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Walter Salis Schwabe, K.C., C.J.—This is a reference to a Full Bench under the following circumstances: The Officer acting as Collector
under the Land Acquisition Act, Act I of 1884 decided, in the first instance, that certain land to be acquired by the Government for harbour
purposes was Government land and that, therefore, no compensation was payable to anybody. Being dissatisfied with that decision or advice one
of the persons claiming to be interested in the land in effect asked the Collector u/s 18 of the Land Acquisition Act to refer the matter to the District
Judge. That application was refused on the ground that the land being Government land there was no right to compensation and that the land
Acquisition Act had no application at all. A revision petition was then brought to this Court to revise that order and a preliminary objection was
taken that this Court has no revisional powers over such orders. There is a considerable conflict of authority on the point and the matter has
accordingly been referred to a Full Bench.
The only power of revision this Court has got is u/s 115 of the Code of Civil Procedure. By the terms of that section a High Court can revise
any decision made in any case by any Court subordinate to such High Court, and in which no appeal lies thereto. It is argued first of all, on behalf
of the Crown that the Collector exercising his functions u/s 18 is not acting judicially; secondly, that he is not acting as a Court; and thirdly, that, if
he is acting as a Court, he is not a Court subordinate to the High Court. The authorities on the point are in an unsatisfactory condition, for in
Madras there is the decision of a Bench in Best and Co. v. Deputy Collector of Madras (1916) 20 MLT 388 , in which it was held that
proceedings in the nature of Mandamus u/s 45 of the Specific Relief Act lay, because, and only because, this Court had no revisional powers in the
matter; consequently the revision petition in that case was dismissed and an application u/s 45 of the Specific Relief Act was allowed. The matter
came before this Court again in Parameswara Iyer v. Land Acquisition Collector, Pale/hat 36 MLJ 95 where Ayling and Krishnan JJ., having
considered the early Madras case, differed from the conclusion to which it came and held that the proceedings were those of a Court subordinate
to the High Court and granted the revision petition. In so doing, they were following two cases in Calcutta. The Administrator General of Bengal v.
The Land Acquisition Collector of Pabna (1905) 12 CWN 241. The same result has been arrived by the Patna High Court in Saraswathi Pattack
v. The Land Acquisition Deputy Collector of Champaran (1916) 2 PLJ 201. Later the matter came before a Bench in Bombay in Balakrishna
Debi v. Collector of Bombay ILR (1922) B 699 , and having considered all these previous cases, the Bombay Court came to the conclusions that
Parameswara Iyer v. Land Acquisition Collector, Palghat 36 MLJ 95 was wrongly decided, and that there was no power of revision. With that
conflict of authority we have to make up our own minds on the point.
In Ezra v. Secretary of State for India (1905) ILR 32 C 605 (PC), the Privy Council has decided that the Collector, exercising functions under
the Land Acquisition Act down to the point when he gives what is called his award, is acting only in an advisory capacity and is not exercising any
judicial function at all; but in these later cases, which I have referred to, it is pointed out, and I think correctly pointed out, that when he acts under
Part III of which Section 18 forms part, he is acting in a different capacity, because he has there to decide certain things he has to send the case to
the District Court if certain provisions in that section have been complied with, one of which is the question of time; that is to say, he has to decide
whether the application is barred or not; and in doing so, in my judgment, he acts judicially.
But the further question arises whether he acts as a Court. I think it is quite possible for persons to be given judicial functions or functions which
they have to exercise judicially without their being made Courts properly so called, and I think a very clear instance is the case of registration
authorities who have to decide whether or not they will accept registration of certain documents; and it has been held by a Full Bench of this Court
in Krishnammal v. Krishna Iyengar (1912) 25 MLJ 51 that in respect of a refusal of registration by a registration Officer no revision petition lies to
this Court because he is not a Court at all. I doubt if the Collector sits in a Court.
Further, the question arises, assuming that the Collector is a Court, is he a Court subordinate to the High Court within the meaning of Section
115 of the Code of Civil Procedure? In my judgment, he is not. There is no power of appeal from his decision to any one, either to the District
Court or to this Court There is nothing in the Act to show that he is, in the true sense of the word in any way subordinate to the High Court. As far
as Madras is concerned, the Courts recognised are those Courts, which are referred to in various statutes, such as, the Madras Civil Courts Act.
His Court, if a Court at all must be a Civil Court. The Civil Courts are enumerated in the Civil Courts Act, and the Court of the Collector sitting
under the Land Acquisition Act finds no place in that enumeration. On the whole, I think I must come to the conclusion that, even it the Collector,
exercising his functions u/s 19 although those functions are, as I have pointed out, judicial functions, is a Court, he is not a Court subordinate to the
High Court. Therefore, no revision lies to this Court.
I think, however, it is right to add that as far as one can see without having had the point argued before us, it should seem that the Collector was
wholly wrong in the course that he took on this occasion. He himself had decided that it was Crown land. If he was wrong in that decision, then the
applicant had a right to have his case heard on his claim for compensation. When he is asked to refer that matter--so I understand it--to the Court
for a decision, that is to say to the District Court, he bases his refusal on his own previous decision that the land was Crown land, and assumes
that, because he has decided that, that decision is final and conclusive and the party is not allowed under the Act to have that matter gone into by a
Court; it being worthy of observation that, in so deciding, he was not acting judicially at all, because he was then at a stage of the proceedings
when, according to the Privy Council decision referred to above, he was merely acting in an advisory capacity. It is not for us to say what the
proper remedy is whether he should move the Government to direct the Collector to do his duty, or whether he can take any and what form of
proceedings to have his case heard, if he has a case which deserves to be heard.
The answer to the question referred to us is that the High Court has no power u/s 115 of the CPC or u/s 107 of the Government of India Act,
to revise the order of a Collector acting under the provisions of the Land Acquisition Act refusing to refer to the Court an application u/s 18 of the
same Act by a person interested requiring him to refer the matter for the determination of the Court. As the preliminary point is one going to the
root of the whole matter, it is unnecessary for this case to go back to the Referring Bench and we dismiss this petition with costs.
Phillips, J.
I agree.
Ramesam, J.
I agree. I would only add that it is desirable that the Act should be amended so as to give a remedy to the subjects in respect of possible
arbitrary acts of Land Acquisition Officers in declining to refer u/s 19 and not to leave them to depend upon the action of the Government in
advising their officers.
Walter Salis Schwabe, K.C., C.J.
I agree with the observation just made by my brother Ramesam.