Amar Nath and others vs The Land Acquisition Collector, Kangra, Dharam Sala and others

Jindra Lal, J.—This is a petition under Articles 226 and 227 of the Constitution of India praying that order dated the 24th of March 1961 and 26th of May, 1962 passed by the Land Acquisition Collector Kangra district be quashed and further paying that the Land Acquisition Collector Kangra may be directed by the issue of a writ of mandamus to make a reference to the Court u/s 18 of the Land Acquisition Act. The Land Acquisition Collector Kangra is Respondent No. 1 but although served he has not entered appearance nor does he contest the petition which is only contested by Respondents No. 2 to(sic)5.

The point involved in the petition is not very complicated but in order to appreciate the different contentions of the parties it will be necessary to give some facts. On the 18th of October 1926 some land was mortgaged by R. S. Kanhaya Lal, head of the family of Respondents Nos. 2 to 6, in favour of Khazana Mal Tulsi Ram, and in February 1927 mutation was entered with regard to the above transaction in the revenue records. In the year 1936 half share of these mortgagee rights was sold in a Court auction in favour of Basanta Mal father of the Petitioners, he being the highest bidder at Rs. 800/-. He was also a decree-holder against the mortgagor. On the 30th of October 1939 a mutation was effected with regard to this half share of mortgagee rights in favour of Basanta Mal.

In 1860 proceedings were taken by the Collector for the acquisition of some land in the village of Paprola including the mortgaged land. Notifications under Sections 4 and 6 of the Lend Acquisition Act, 1894, were issued.

On the 6th of March 1961 an order was passed by the Collector, which is annexure ''A'' to the petition, under the Land Acquisition Act in which it was ordered that notice u/s 9(a) of the Land Acquisition Act should be delivered to the Patwari, Halqa Paprola, and he should be instructed to deliver a copy of the notice to each owner after obtaining a receipt and that the parties should appear before the Court of the Revenue Assistant exercising powers of Land Acquisition Collector on the 22nd of March, 1961. It was also ordered that a copy of the notice should be affixed at the spot and a report be made in the roznamcha of the events.

In pursuance of the said notice on the 24th of March 1961 an award was made by the Land Acquisition Officer, but it is clear that the Petitioners who had purchased the mortgagee rights got no notice as contemplated by Section 9(3) of the Land Acquisition Act. In the award which is annexure ''B'' to the petition regarding the mode of payment, it was said that the owners and tenants would be paid compensation according to their share as entered in the ownership and cultivation column of the jamabandi. The compensation for the land mortgaged was to go to the mortgagee. The Petitioners mortgagees had no notice of this award,

A memorandum dated the 29th of July 1961 was sent from the Deputy Commissioner, Kangra district, to the contesting Respondents and the Petitioners who are the sons of Basanta Mal. In this memorandum the subject bearing is "payment of compensation tor land acquired for Seed Farm at Paprola." This land comprises khata No. 30, kkatauni Nos. 85, 8l, 87 and 88 measuring 22 kanals. This memorandum is enclosed with the petition as annexure ''C'' In response to this notice, which required the Petitioners to produce documentary evidence in support of their claim for the payment of compensation, the Petitioners sent a reply claiming half of the mortgagee rights in the land and claiming Rs. 5,250/-. By an order of the 16th of January 1962 the Land Acquisition Collector, Kangra, at Dharamsala held that the claim of the Petitioners was untenable because they had purchased the mortgagee rights for Rs. 800/- and they were only entitled to that amount. He held further that there was nothing on the record as to the mortgage in which the mortgagee rights had been acquired by the Petitioners.

Being aggrieved by the order, the Petitioners moved the Collector by an application dated 22nd February 1962 asking him to refer the matter to the Court under Sections 18, 30 and 31 of the Act. This application was rejected by the Collector in the following terms:

I have heard the counsel for both the parties. Apportionment in this case was made on 16th January 1962 while the award was announced by me on 24th March 1961 almost 10 months previous to the order of apportionment. The contention of the counsel for the applicants that the case regarding apportionment be referred to the Senior Sub-Judge, Dharamsala, since the award was announced on 2nd February 1962, is incorrect. The application seems to be misconceived. Apportionment having been already done, I am divested of my powers u/s 30 of Land Acquisition Act to refer the case to Senior Sub Judge, Dharamsala AIR 1959 Mysore It is this order by which the Petitioners are aggrieved.

Mr. D. N. Awasthy, learned Counsel for the Petitioners, has urged that there is an error apparent on the face of the impugned order inasmuch as the powers of the Collector u/s 18 of the Land Acquisition Act to refer the matter of apportionment to the civil Courts had not in fact been exhausted and the Collectcr was not functus officio. He submitted that there is a clear distinction between Section 60 and Section 18 of the said Act. He contends that so far as Section 30 is concerned it contemplates a situation where the compensation has been settled u/s 11 of the Act and if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. He says firstly that even after the Collector has settled the question of the apportionment of compensation himself he is still bound to refer the matter to the Civil Courts u/s 18 on the application of a party.. The fact that the Collector has himself settled the matter of apportionment of compensation does not debar him from referring the matter to the Civil Courts for he says that this Section 30 is only an enabling section and does not take away jurisdiction of the Collector from referring the matter u/s 18 Section 30 of the Act reads as under:

When the amount of compensation has been settled u/s 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.

Section 18 of the Act is, however, very comprehensive and may be reproduced here:

(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation, among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made:

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector''s award

(b) in other cases, within six weeks of the receipt of the notice from the Collector u/s 12, Sub-section (2), or within six months from the date of the Collector''s award, whichever period shall first expire.

(2-A) Without prejudice to the provisions of Sub-section (1), the State Government may, where the acquisition of land is not for the purposes of the Union and it considers the amount of compensation allowed by the award u/s 11 to be excessive, require the Collector by written application that the matter be referred by him to the Court for determination of the amount of compensation.

Explanation.-In any case of land under Part VII, the requisition under this Sub-section may be made by the State Government at the request of the Company on its undertaking to pay all the costs consequent upon such requisition

(2-B) The requisition shall state the grounds on which objection to the award is taken and shall be made within six months of the date of award.

(3) Any order made by the Collector on an application under this section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, 1908 (V of 1908}.

Now it is clear that even after the Collector has given his award and the parties do not accept it a party aggrieved may apply to the Collector requiring him to refer the matter for the determination of the Court whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of compensation among the persons interested.

A party may not be aggrieved by any other matter in the award but only by the method of apportionment of compensation- If he is so aggrieved, he can ask for a reference to the Courts u/s 18 of the Act. According to him, the Collector''s award was only complete so far as the Petitioners are concerned after he had made the order dated the l6th of January 1962 because before that they were not aggrieved by any award of the Collector as they were only interested by the question of apportionment. According to him, an older of apportionment must be considered to be a part of the main award and he is entitled to ask for a reference u/s 18 and, therefore, the learned Collector was committing an error of law by holding that he was functus officio.

In support of his contention Mr. Awasthy pointed out that under the Act. it is the duty of the acquiring authorities to comply with all statutory provisions like Sections 9(3) and (4) and 12(2) of the Act, and he says that since his client was not served at all in accordance with law the acquiring authorities have faded to comply with the provisions of law to his detriment and he has a right to complain. His section contention was that there is no compliance of Sections 9(3) and (4) and 12(2), and, therefore, the award is bad in law as till the time when the rights of the parties are determined, the award is not compete. He has cited Prag Narain v. The Collector of Agra wherein their Lordships have held that where any one piece of land in which more than one person has an interest for which he can claim compensation, ought not to be nude the subject of more than one award and, therefore, each award should contain within its four corners the fixing of the value of the land with which it deals and the appro-tionment of that value between the various persons interested in that land. Mr Awasthy argues, therefore, that the award is one and indivisible and really is a complete award only after the matter of apportionment has been decided by the Collector which obviously was done on the 16th of January 1962. Mr. Awasthy further argues that even if the Collector had made his award u/s 11 of the Act, a decision as to apportionment of compensation among all the persons known or believed to be interested in the land, even then it was his duty u/s 18 to make a reference to the civil Courts, when called upon to do so within limitation. He further argued that if the Collector did not make a reference as contemplated u/s 18, this Court was entitled to issue a writ of mandamus and for this be relied upon Huqdars of Peria Pullivalal v. R. D. Officer, A. I. R. 1963 Mad. 100, He has also cited AIR 1941 268 (Lahore) saying that the Collector has no option but to refer. As I have mentioned above, the real question is this: Once an award has been made with regard to the amount of compensation and a dispute arises as to the appotionment of the same or any part thereof, can that party thereaftert ask for a reference u/s 18 if he is aggrieved by the decision of the Collector u/s 40 of the Act ?

Now it appears to me that the language of Section 18 is wide aud if a party is aggrieved by the award or settlement made by a Collector with regard to the apportionment of compensation he can ask the Collector to make a reference u/s 18 and the Collector is bound to make such a reference subject, of course, to the conditions contained in Section 18 of the Act. A party may be aggrieved by an award on any of the matters enumerated in Section 18 of the Act. As in this case, the grievance was only as regards the apportionment.

Mr. Awasthy further argued that even if the Collector had made an award u/s 18 of the Act with regard to the amount of compensation, and had at that time not made an award as to apportionment, which was his duty to do if called upon, the moment he is called upon and he does make an order as to apportionment, that apportionment must necessarily form part of the award and the award made earlier as to the quantum of compensation cannot be taken as the final award making the Collector, functus officio.

The Collector seems to be under the impression that a reference against the apportionment made by him can be only u/s 30 of the Act. He has clearly lost sight of the fact that section SO merely provides an alternate procedure in cases where the Collector does not wish to apportion the amount himself due to the complicated nature of the matter nvolved. But once he has apportioned the amount, the apportionment is necessarily u/s 11 and not u/s 30. Therefore, a party aggrieved by such an order of apportionment can claim a reference u/s 18. The matter can also be looked at from another angle. u/s 30 if the Collector refers the matter of apportionment to Court, then it is the decree of the Court which determines the amount of apportionment between the parties and there is no apportionment, by the Collector u/s 11 and, therefore, there can be no question of making an apportionment u/s 11 against which a reference can be claimed u/s 18. The effect of both the provisions read together is that the final decision regarding apportionment must rest with the Court. That decision can be obtained either by the Collector u/s 30 or by an authority u/s 18 by claiming a reference against the order of apportionment made u/s 11.

In the present case there is no reference by the Collector u/s 30 and, therefore, it necessarily follows that the apportionment made by him must be u/s 11. That being so, the Petitioner has every right to claim a reference u/s 18 and that he could only do after the Collector had determined the matter u/s 11 of the Act.

I am of the view, therefore, that the order of the learned Collector, which is impugned, is on the face of it erroneous on point of law and his writ petition, therefore, must He accepted.

I, therefore, issue a writ of mandamus to the Collector, Kangra District, directing him to refer the matter of apportionment of the amount awarded to the Court u/s 18 of the Land Acquisition Act. The Collector his not entered appearance, but Respondents Nos. 2 to 5 have. The Petitioner will have his costs against Respondents 2 to 5, which I fix at a consolidated sum of Rs. 100/-.