Mohandevi Jhawar vs Special Land Acquisition Officer (General), Nagpur and others

H.W. Dhabe, J.—The revision applicant has challenged the order of the Special Land Acquisition Officer (General), Nagpur i.e. the non-applicant No. 1 dated 4-8 -1987 making a reference u/s 18 of the Land Acquisition Act, 1894 (for short, the Act) to the Civil Court in the instant Land Acquisition Case i.e. Land Acquisition Case No. 5/A(65)/82-83 of Gondkhairi which has been registered as Land Acquisition Case No. 59/87 (Ashok Daga vs. Chief Controller of Explosives and 2 ors.) before the Joint Civil Judge, Senior Division. Nagpur after the reference was made to it by the Special Land Acquisition Officer (General), Nagpur.

The facts giving rise to the instant revision are that the applicant is the mother and the legal heir of one Maniklal Sohanlal Jhawar who, according to the applicant, was the owner of field survey No. 448 of Gondkhairi, area 13.19 hectares. Proceedings for acquisition of the said land for the Explosives Department of the Central Government were initiated by issuance of the Notification u/s 4 of the Act published on 13-12-1982 and by issuance of the Notification u/s 6 thereafter on 3-3-1983. The proceedings for determination of the compensation payable for acquisition of the above land were then initiated in the aforesaid land acquisition case and by his award dated 30-4-1986 the Special Land Acquisition Officer (General), Nagpur awarded compensation of Rs. 17,37,170.30 ps. to the said Maniklal Jhawar. The said Maniklal Jhawar died during the night between 8th and 9th July, 1986.

It may be seen that according to the applicant, Maniklal belonged to an eminent and well-to-do Jhawar family of Ahmednagar. He was a partner in Bharat Agency, a newspaper concern and used to look after its management. He had 50 per cent share in the said partnership concern. According to her. his yearly income was to the tune of Rs. 40,000/- to Rs. 50,000/- . However, the said partnership business was closed in June 1974 and on closure of the said business, he received an amount of Rs. 50,000/- . He had shifted to Nagpur in or about 1973 and it is her case that he had purchased the acquired land for a consideration of Rs. 14,000/- on 1-11-1974. Further according to her he shifted back to Ahmednagar in 1984 after the death of his father Sohanlal who died on 24-2-1984 i.e. after the present land acquisition case has start edit is, therefore, her case that since he was required to shift to Ahmednagar. he executed a general power of attorney in favour of his maternal cousin Ashok Daga i.e. the non-applicant No. 4 on 16-9-1984 to enable him to attend the instant land acquisition proceedings on his behalf.

It is then the case of the applicant that the non-applicant No. 4 after seeing the award of the huge amount of Rs. 17,37,170.30 in the instant land acquisition case was tempted to grab the same. He, therefore, invented and concocted a false story of benami purchase in the name of Maniklal Jhawar of the acquired land by his deceased father Sunderlal and thus setting up a false title to the award amount, he filed an application dated 29-5-1986 before the Special Land Acquisition Officer (General), Nagpur u/s 18 of the Land Acquisition Act for reference of the instant Land Acquisition Case to the Civil Court on the ground that it was he who was entitled to the entire compensation and not the said Maniklal.

It appears that since the Special Land Acquisition Officer (General), Nagpur was inclined to make the payment of compensation to the said Maniklal, the non-applicant No. 4 filed also a Special Civil Suit bearing No. 336 of 86 on 8-7-1986 in the Civil Court. It is necessary to notice that according to the applicant, Maniklal had died in the night of 8th and 9th July 1986 and even then the non-applicant No. 4 had obtained from the Civil Judge, Senior Dvn., Nagpur an ex parte injunction order in the aforesaid civil suit on 9 -7 -198 7 restraining the Special Land Acquisition Officer (General), Nagpur from making payment of compensation amount to Maniklal.

According to the applicant, an application for bringing the legal representatives of the deceased Maniklal was made in the aforesaid civil suit on 4-8-1986. However, according to her, no such application was made to amend the application dated 29-5-1986 filed by the non-applicant No. 4 u/s 18 of the Act for making the reference to the civil Court. It, however, appears from the reply filed by the non-applicant No. 4 to the present revision application that he has denied that there was no application made for amending the reference application as alleged by the applicant. Be that as it may, the Special Land Acquisition Officer (General), Nagpur i.e. the non-applicant No. 1 has ultimately made the reference to the Civil Court by his order dated 4-8-1987 pursuant to the application filed by the non-applicant No. 4 u/s 18 of the Act. One of the grievances made by the applicant is that such a reference was made without notice or without hearing the applicant.

After the rule was issued in the instant revision application, the non-applicant No. 4 has filed his reply to the revision application. Perusal of the said reply would show that according to the non-applicant No. 4, the said Misniklal and his family was not a well-to-do family and in fact, he was a worthless man living at the mercy of his relatives and particularly the deceased father of the non-applicant No. 4. He has denied that the said Maniklal purchased the acquired land in question for consideration of Rs. 14,000/- on 1 -11-1974. However, it is clear from the averments in para 3 that the sale deed in respect of the said land is not disputed by him. He has also admitted that the said land was purchased in the name of the deceased Maniklal. However, according to him, as averred in para 10 of his reply, it was his father Sunderlal Daga who had actually paid the consideration and had purchased the said land but since he had some problems in getting the sale deed of the land executed in his own name or in the name of his son i.e. the non-applicant No. 4. he got the sale deed executed in the name of the deceased Maniklal who was fully dependent upon him and the non-applicant No. 4 particularly when they had full faith that he would be loyal to them. His further submission is that the deceased Maniklal had executed an irrevocable power of attorney and that he signed full blank cheque book and handed over the same to him which, according to him, would show that the purchase of the acquired land was benami in his name.

In view of the submission made on behalf of the non-applicant No. 4 that the purchase of the acquired land was benami in the name of the deceased Maniklal who was thus not the real owner of the acquired land and after enactment of the Benami Transactions (Prohibition) Act, 1988 prohibiting the plea of benami transactions, the revision applicant amended the revision application to raise the ground that the claim to the acquired land cannot be set up by the non-applicant No. 4 on the ground that the purchase of the said land by his father was benami in the name of the deceased Maniklal and therefore, the impugned reference u/s 18 of the Act made by him on that ground is totally incompetent and not maintainable.

In answer, two questions are raised on behalf of the non-applicant No. 4. The first is that the Special Land Acquisition Officer (General), Nagpur while considering the question of making reference u/s 18 of the Act has no jurisdiction to decide the question whether the non-applicant No. 4 is a " person interested'''' in the acquired land or in the compensation therefore, and thus to decide the question about benami transaction raised in the instant case and he is thus bound to make the reference when the application to that effect is made u/s 18 of the Act.

The other question which is raised on behalf of the non-applicant No. 4 is on the basis of the exception carved out u/s 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988. Sub-section (1) of section 4 of the above Act bars a suit, claim or action being initiated in respect of any property held benami against the person in whose name the property is held or against any other person. Sub-section (2) of section 4 of the aforesaid Act bars any defence based upon the property being held benami. Sub-section (3) of section 4 of the Act then carves out two exceptions. In clause (a) thereof it is provided that where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family, the said section will not apply. Clause (b) of sub-section (3) of section 4 then provides that where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity, then also the said section will not apply.

As regards the contention on behalf of the applicant on merit viz. that the non-applicant No. 4 cannot make a claim to the compensation in the instant case based upon the transaction of the purchase of the acquired land being benami stands concluded in her favour by the judgment of the Supreme Court in the case of Mithilesh Kumar and Another Vs. Prem Behari Khare, . It is held by the Supreme Court in the above case that section 4 of the Benami Transactions (Prohibition) Act. 1988 has retrospective effect and bars any claim based upon the plea of benami transaction. Perusal of the facts in the said case would show that the sale deed in the said case was executed on 8-11-1962 and the trial Court had given the judgment on 13-3-1974, the suit being filed in the year 1971. The lower appellate Court had delivered its judgment on 23-12-1974 and the High Court in Second Appeal on 27-2-1978 a special leave to appeal to the Supreme Court was granted on 15-11-1978. It appears that during the pendency of the appeal before the Supreme Court, the Benami Transactions (Prohibition of Right to Recover the Property) Ordinance, 1988 was first promulgated on 19th May 1988 which was to come into force at once. It is, thereafter that the aforesaid Act i.e. Benami Transactions (Prohibition) Act, 1988 was enacted which received the assent of the President on 5th September 1988. According to the provisions of section 1(3) of the said Act, sections 3, 5 and 8 were to come into force at once i.e. on the date of receipt of the assent of the President, and the remaining provisions were deemed to have come into force on 19th May 1988 which means the date on which the Ordinance was promulgated.

Since the above enactment came into effect during the pendency of the appeal before the Supreme Court by special leave, the question before the Supreme Court was whether the above enactment was retrospective in operation. After examining the scheme of the above enactment, the Supreme Court has held in the above case that the above enactment and in particular its relevant section 4 has retrospective effect and would, therefore, bar a plea of benami transaction raised in that case.

It is clear that since the Supreme Court has held that the above enactment and in particular section 4 thereof has retrospective effect, the said question is no more res integra. As section 4 of the above enactment is clearly attracted in the facts of the instant case also, it has to be held that a claim cannot be based by the non-applicant No. 4 by raising a plea that the sale deed in question of the acquired land was benami in the name of the deceased Maniklal and the real owner of the said land was his father late Sunderlal and thereafter he himself as the consideration for the same was paid by his father who because of some difficulties could not purchase the acquired land in his own name or in the name of his son and, therefore, purchased the same in the name of the deceased Maniklal. As regards the question of retrospectivity of the above enactment, the learned counsel for the applicant has brought to my notice two judgments of the Kerala High Court viz. C. Chandran, 1988 22 Reports (Keral) 616 and Vella Ramkishan and ors. vs. Raju and ors., 1988 23 Reports (Keral) 63 which also take the view that the above enactment has retrospective effect.

The main question which, however, has to be considered in the instant civil revision application and in support of which strenuous arguments have been advanced from both sides is, whether the Special Land Acquisition Officer (General), Nagpur was bound to make a reference to the Civil Court pursuant to the application of the non-applicant No. 4 u/s 18 of the Act.

Both parties have relied upon numerous decisions in support of their submissions. Before we actually consider the contentions raised on behalf of the non-applicant No. 4. it is necessary to refer to certain background of the law as it developed in regard to the power of reference of the Collector u/s 18 of the Act. It may be seen that there was divergence of view in different High Courts on the question whether the Collector while exercising his powers u/s 18 of the Act was a Court subordinate to the High Court so that he was subject to its revisional jurisdiction u/s 115 of the Code of Civil Procedure, 1908. It was expressed in some of the decisions that it would be desirable if appropriate amendments are made in this regard to section 18 of the Act. Accordingly, by Maharashtra Act No. 38 of 1964, sub-section (3) was added to section 18 of the Land Acquisition Act on 7-12-1964 according to which any order made by the Collector on an application under that section was made subject to the revisional jurisdiction of the High Court as if the Collector were a Court subordinate to the High Court within the meaning of section 115 of the Civil Procedure Code. The main purpose in referring to the above controversy and the amendment enacted to resolve the same is to show that in exercising the power of reference to the Civil Court u/s 18 of the Act, the Collector is not acting as an Agent of the State as he does while passing the award but he is acting as a statutory authority who has to apply his mind to the requirements of the said section in making a reference to the Civil Court.

Another controversy which previously existed was whether after the reference is made to the Civil Court, the Civil Court has jurisdiction to decide whether the requirements of section 18 were complied with or not and if not, whether the reference could be set aside by it. I may at this stage point out that the view of this Court in Land Acquisition Act ILR (1906), 30 Bom. 275 was that the reference court can go into the conditions laid down u/s 18 which are conditions precedent in making the reference to the Civil Court. Following the above Bombay decision, the Full Bench of the Punjab and Haryana High Court has also taken a similar view in the case of Swatantra Land and Finance Private Ltd. Vs. The State of Haryana, . It is, however, not necessary to go into the various decisions cited by parties on this question, because the matter has been finally settled by the decision of the Supreme Court in the case of Mohammed Hasnuddin Vs. State of Maharashtra, in which the above view taken by this Court is approved and followed. We shall refer to the above decision of the Supreme Court in some detail when we actually consider the contention raised on behalf of the non-applicant No. 4 that the Special Land Acquisition Officer was bound to make a reference in the instant case once the application was made to him to that effect u/s 18 of the Act.

In support of the contention raised on behalf of the non-applicant No. 4 that once an application for reference is made to the Land Acquisition Officer u/s 18 of the Act, he is bound to make a reference to the Civil Court, the learned counsel appearing for him has relied upon the judgment of this Court in the case of Mohanlal vs. B. S. Deshmukh, 1984 Mh.L.J. 841 He has relied upon the following judgments of the other High Courts also:

(1) The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. vs. Smt. Lakshmavva and anr., AIR 1982 Kar 347;

(2) Chandrasekhar Patel Vs. Ukiabati Patel and Others, ; and

(3) K.S. Govinda Pillai Vs. District Collector, Quilon and Another, .

The learned counsel appearing for the applicant has heavily relied upon the judgment of the Supreme Court in Mohammed Hasnuddin''s case cited supra for his construction that if the conditions in making reference u/s 18 are not satisfied, the Collector is not bound to make the reference u/s 18 of the Act.

In dealing with the rival submissions, it would be proper to first consider the judgment of the Supreme Court in Mohammed Hasnuddin''s cast cited supra which has dealt with the scope of section 18(1) of the Land Acquisition Act. While considering its scope, the Supreme Court has observed that merely because the Collector while making an award u/s 11 on serving notices on the land owner acts as an agent of the Government, it does not necessarily imply that while making reference to the Court u/s 18, he acts in the capacity of an agent to the Government. The Supreme Court has held in para 18 of its judgment that section 18 of the Act entrusts to the Collector the statutory duty of making a reference on the fulfillment of the conditions laid down therein, and therefore, in exercising the powers u/s 18 of the Act, he is nothing but a statutory authority exercising his own powers thereunder.

As regards the actual scope of section 18 of the Act, it is observed in para 24 of the above judgment of the Supreme Court in Mohammed Hasnuddin''s case that the word "require" used in section 18 of the Land Acquisition Act implies compulsion and carries with it the idea that the written application makes it incumbent on the Collector to make a reference. However, it is further observed that the Collector is required to make a reference u/s 18 of the Act on the fulfillment of certain conditions. The first condition according to the said judgment, is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objection which may be taken and the third condition is as to the time within which the application shall be made. It is thus held in para 24 that the power of the Collector to make reference u/s 18 of the Act is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso. It is then most material to see para 25 of the judgment in which it is held that the conditions laid down in section 18 of the Land Acquisition Act are ''matters of substance and their observance is a condition precedent to the Collector''s power of reference'' (emphasis supplied). The Supreme Court has thus taken the view in the above case that the fulfillment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It is, therefore, held in the facts of the above case before it that filing of an application for reference within the time prescribed by proviso to section 18 of the Act is a sine qua non for a valid reference by the Collector.

It is thus clear from the judgment of the Supreme Court in Mohammed Hasnuddin ''s case cited supra that the Collector while exercising the power u/s 18 of the Land Acquisition Act acts as a statutory authority and has to apply his mind to the conditions laid down therein which are conditions precedent for making a reference to the Civil Court. In this regard it is pertinent to see that by addition of sub-section (3) to section 18 of the Act by Maharashtra Act No. 38 of 1964, the Collector is made a ''court'' subordinate to the High Court for the purpose of exercise of its revisional jurisdiction u/s 115 of the CPC which would mean that the Collector has to apply his mind and take a conscious decision whether the conditions for making a reference u/s 18 of the Act are satisfied or not before making a reference. It is for this reason that it is made subject to the revisional jurisdiction of the High Court. At any rate, it may be seen that in exercising the revisional jurisdiction, this Court can examine whether there is compliance with the conditions laid down u/s 18 of the Act when the order of the Collector making reference is under challenge before it.

I may at this stage refer to a decision of this Court in the case of Annapurnabai Wasudeorao Deshpande vs. Ranganath Kisan Khandare, 1981 Mh.L.J. 726. In the said case, the question was, whether the person interested in that case viz. the tenant could make an application for reference u/s 18 of the Act by seeking permission to sue in forma pauperis under Order 33, Rule 1 of the Civil Procedure Code. In this context, it was considered whether the Land Acquisition Officer was a Civil Court governed by the CPC while exercising his powers u/s 18 of the Land Acquisition Act. After referring to the judgment of the Supreme Court in Mohammed Hasnuddin''s case cited supra and to the provisions of section 18(3) added by the Maharashtra amendment by which a legal fiction was created to treat the Collector or the Land Acquisition Officer as the Court subordinate to the High Court for the purpose of exercise of its jurisdiction u/s 115 of the Civil Procedure Code, this Court held that the logical conclusion that can be drawn by giving full effect to the provisions of sub-section (3) of section 18 would be to hold that the Collector has the trappings of Civil Court while exercising the powers u/s 18 of the Act.

Although it is thus settled that the Collector has to be satisfied about the existence of the conditions precedent laid down u/s 18 of the Act in making reference to the Civil Court, the question that arises for consideration is what the scope of its scrutiny is in examining the question whether the conditions laid down in section 18 of the Act are complied with or not. In particular, the question is where there is a dispute about the compliance with the conditions or where the said question is debatable whether the Collector can take a particular view in declining to make a reference u/s 18 of the Act. However, where the question is beyond doubt in the sense that no other view is possible on the question of non-compliance with any of the conditions precedent it cannot be gainsaid that the Collector will be within his power in refusing the reference on being satisfied that a condition precedent u/s 18 of the Act is not satisfied. For instance, if the application for making reference is not within time as prescribed by the proviso, it will be open to the Collector to refuse to make a reference because the condition precedent for making the reference is not satisfied.

However, there may be cases where two views are possible in regard to a particular condition laid down in section 18 of the Act particularly the question whether the person claiming a reference by making an application for that purpose is a ''person interested'' within the meaning of the Land Acquisition Act or not may in some cases be a debatable question. Similarly, the question whether he is entitled to the whole of the compensation or apportionment of the compensation may also be a debatable question. The grounds on which the objections are taken to the award may or may not be altogether valid or tenable as the said questions may be debatable.

It is clear to me that since the Collector acting u/s 18 of the Act is not an adjudicating authority to pronounce finally upon the merits of the reference, he cannot decline to make a reference when the question of non-compliance of a condition precedent in making a reference raises really a debatable question which the reference Court which is an adjudicating authority can alone settle. However, as observed earlier, when the question of non-compliance of any condition precedent is beyond doubt in the sense that no two views are possible, there is no reason why the Collector cannot decline to make a reference because the making of a reference in that case would be an exercise in futility or an empty formality.

I shall now refer to the decisions cited by the learned counsel for the non-applicant No. 4 in support of his submission that the Collector is bound to make a reference u/s 18 of the Land Acquisition Act. In the case of Mohanlal vs. B. S. Deshmukh, 1984 Mh.L.J. 841 decided by this Court the facts were that an application u/s 18 for reference was made by alleging that the claimant was a person interested in compensation inasmuch as the acquired property was a joint family property although it was recorded in the name of his elder brother and as such it was alleged by the claimant that he was entitled to claim apportionment of the compensation amount in that case. Since the Land Acquisition Officer refused to make reference on the ground that he was not a ''person interested'' within the meaning of section 18(1) of the Act, the matter was taken in revision before this Court. It was held by this Court that it was not unusual that a joint family property may stand in the name of only one coparcener without in any way affecting the rights of others. This Court, therefore, was of the view that this was not the question which the Collector could decide u/s 18(1) of the Act. This Court thus held that it was not open to the Collector to decide the application u/s 18 of the Act on merits and all that the Collector had to do was to decide whether all the formalities u/s 18 have been complied with or not. In taking this view, the Court followed the judgment of the Punjab High Court in the case of Smt. Kakubai vs. Land Acquisition Collector, AIR 1956 Punjab 51 cited supra.

It is, however, pertinent to see that the judgment of the Supreme Court in Mohammed Hasnuddin ''s case cited supra is not brought to the notice of this Court in the aforesaid case. Be that as it may, on the facts before this Court in the aforesaid case, it is clear that the question whether the claimant in that case was entitled to claim apportionment of the compensation amount on the ground that the property was a joint family property was a debatable question which could not be finally decided by the Collector in his limited jurisdiction u/s 18(1) of the Act. The claim made by the claimant that he had interest in the joint family property although it was recorded in the name of his elder brother was not outright untenable as pointed out by this Court in the above case. The question which, however, I have to consider is whether the plea of benami transaction raised in the instant case is debatable question which can be decided on merits by the reference Court alone or whether the said question is beyond any shadow of doubt settled in view of the judgment of the Supreme Court in Mithilesh Kumari''scase cited supra upon the Benami Transactions (Prohibition) Act, 1988.

In the case of Gwalior Rayon vs. Smt. Lakshmavva, AIR 1982 Kar 34 7 cited supra, the question posed is different. The contention raised on behalf of the petitioner in the said case is whether the power conferred upon the Collector to make a reference u/s 18 of the Act cannot be exercised if it is not exercised by him within the period of 90 days allowed by the Statute. It is held in the said case that the parties are entitled to make an application to the Civil Court within a period of three years after the expiry of 90 days from the date of filing of an application u/s 18 of the Act for direction to the Collector to make a reference. It is therefore, held that notwithstanding the expiry of the period of 90 days, the statutory obligations upon the Collector to make a reference must be held to continue. It is thus clear that the question whether even in the absence of non-compliance with the conditions laid down u/s 18 of the Act the Collector was bound to make a reference was not posed in that case.

Turning to the decision of the Kerala High Court in the case of K.S. Govinda Pillai Vs. District Collector, Quilon and Another, relied upon on behalf of the non-applicant No. 4, it is clear from the said decision that according to it a "person interested" who had not accepted an award has a right to claim a reference to the Civil Court if he has complied with the provisions of sub-section (2) of section 18 of the Act. The said case, however, holds that a person interested does not mean a person whose interest the Collector is prepared to admit. It is held in the said case that it is no part of the Collector''s duty to decide whether the claim is well founded and he cannot refuse to make a reference because he thinks that the claim is not well-founded. It is clear from the facts of the said case that the question whether the claimant in the said case was a ''person interested'' or not was debatable and, therefore, the ratio of the said case has to be understood and restricted to the said context. Moreover, the judgment of the Supreme Court in Mohammed Hasnuddin''s case was rendered much later in 1 979. It is again reiterated that where the question whether the claimant is a "person interested" or not is debatable and not beyond dispute or doubt, it is not open to the Collector to refuse the reference on that ground. However, when the said question is not in doubt, the question is whether still the reference should be made by the Collector which would then amount to an exercise in futility or an empty formal it). There cannot be any dispute that the question whether the person claiming a reference is a "person interested" or not is a condition precedent for making a reference u/s 18 of the Act. The ratio of the above decision is thus not applicable in the instant case.

As regards the Orissa High Court decision in the case of Bhuyan Abdul Mahatab Khan Vs. Bhuyan Abdul Seheed Khan and Others, , perusal of the said decision and in particular the observations quoted therein from the case of Narayan Das Vs. Kasinath Pani and Others, would show that the claim made in that case was debatable in the sense whether it was a true claim or a fictitious one. The said decision is also, therefore, of no assistance in the instant case.

In my view, it cannot be held that making a reference u/s 18 of the Act is mechanical or is an empty formality in the sense that as soon as the application for making a reference is made thereunder, the Collector is bound to make the reference to the Civil Court. As is clear from the judgment of the Supreme Court in Mohammed Hasnuddin ''s case cited supra, the Collector who is a statutory authority u/s 18 of the Act has to apply his mind to the conditions precedent laid down under the said section 18 of the Act before making a reference. It is true that when non-compliance of any of the conditions precedent is debatable it is not open to him to refuse to make a reference by taking a particular view. However, if there can be no dispute about the condition precedent being not satisfied, it is open to the Collector to decline to make a reference u/s 18 of the Land Acquisition Act. Be that as it may, in the revisional jurisdiction conferred upon this Court, this Court can surely examine the said question. As pointed out above, in view of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 which has retrospective effect as held by the Supreme Court in Mithilesh Kumari''s case cited supra, the claim based upon the plea of benami transaction is precluded. There cannot be any two views on this question and the matter is beyond any pale of doubt. If so, in my view, the reference can be refused on the ground that a condition precedent viz. that the claimant must be a ''person interested'' is not satisfied in the instant case. Otherwise, in my view, it becomes an exercise in futility because the learned reference Court has in this regard no choice except to dismiss the reference on the basis of the above view. The submission made on behalf of the non-applicant No. 4 in this regard, therefore, cannot be accepted.

On merits, it is urged on behalf of the non-applicant No. 4 that the benami transaction is saved in the instant case by the exception carved out in clause (b) of sub-section (3) of section 4 of the above enactment viz. the Benami Transactions (Prohibition) Act, 1988. The submission is that the said Maniklal was holding the acquired land as a trustee for the non-applicant No. 4 and his deceased father and therefore, the transaction of purchase of the acquired land in the instant case is not within the mischief of sub-section (I) of section 4 of the above Act.

To appreciate the above submission, it is first necessary to see that as per section 5 of the Indian Trusts Act, 1882 no trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or of the trustee and registered, or by the will of tine author of the trust or of the trustee. Further, as per section 6 of the said Act, one of the requirements for creation of a valid trust is that unless the trust is declared by will or the author of the trust is himself to be the trustee, the trust property must be transferred to the trustee. In regard to the proposition the trust property must vest in the trustee as the legal owner, the learned counsel for the applicant has relied upon the following judgments :

(1) Alagappa vs. Lakshmanan, AIR 1919 Mad. 555.

(2) Rajammal vs. Sri Rangathammal, AIR 1920 PC 119.

(3) Khairul Bashar Vs. Thannu Lal and Others, .

The above decisions do hold that the trust property must vest in the trustee as the legal owner. It is clear from the reply filed by the non-applicant No. 4 that according to him, it was his late father and thereafter he himself who was the real owner of the acquired land in the instant case and not the said Maniklal.

It is pertinent to see that a benami transaction which did not strictly speaking bear the character of trustee relationship because the trust property did not vest in the benamidar or legal owner thereof was recognised as a transaction creating obligation in the nature of trust by the express provisions in section 82 of the Indian Trusts Act. See Yelamanchili Pitchayya Vs. Yelamanchili Rattamma and Another, . It is, however, pertinent to see that section 82 is inter alia repealed by section 7(1) of the Benami Transactions (Prohibition) Act, 1988, the purpose being obvious that no claim or defence is allowed to be based upon a plea of benami transaction even by considering it as an obligation in the nature of trust under the Indian Trust Act. See also C. Chandran vs. Gangadharan, (1988) 22 Reports (Ker.) 616, para 16. The submission made on behalf of the non-applicant No. 4 based upon the exception in clause (b) of sub-section (3) of section 4 of the Benami Transactions (Prohibition) Act, 1988 thus cannot be accepted.

It has, therefore, to be held that the non-applicant No. 4 cannot base his claim in the instant case upon the plea of benami transaction in view of the provisions of the Benami Transactions (Prohibition) Act, 1988 and in particular, section 4 thereof. He cannot, therefore, be treated as a "person interested" within the meaning of the definition of the said expression given in section 3(b) of the Land Acquisition Act. The condition precedent for making a reference viz. that the person claiming a reference must be a "person interested" is thus not satisfied in the instant case. Hence the reference made by the Land Acquisition Officer (General), Nagpur i.e. the respondent No. 1 in the instant case u/s 18 of the Land Acquisition Act is thus incompetent and is liable to be set aside.

In the result, the instant revision is allowed. The impugned order of the Land Acquisition Officer (General), Nagpur i.e. the respondent No. 1 dated 4-8-1987 making a reference to the Civil Court in the instant Land Acquisition Case u/s 18 of the Land Acquisition Act at the instance of the non-applicant No. 4 is incompetent and is, therefore, set aside. However, in the circumstances, there would be no order as to costs.