Mrs. Tejo Singh vs State of West Bengal

Lahiri, J.—In this case, the order that is challenged before us is one made by the Special Land Acquisition Judge of 24-Parganas on November 29, 1955 by which he has added opposite party No. 2 Sagarmal Agarwalla as a party to a reference u/s 18 of the Land Acquisition Act. The facts which are relevant for the purpose of this case are as follows:

Certain premises known as ''Asha Villa Garden House'' in Agarpara comprising a total area of about 17 bighas with a two storeyed structure standing thereon belonged to one Asaram Thikadar. A portion of the said premises comprising an area of 8 bighas 6 cottas was acquired by the Government under the Land Acquisition Act and on January 26, 1949, the Land Acquisition Collector made an award. Asaram did not accept the valuation made by the Collector and at his instance a reference was made to the Land Acquisition Judge u/s 18 of the Land Acquisition Act some time in April 1950. Asaram died some time in July 1954 leaving behind him the two Petitioners as his heirs. On October 3, 1955, opposite party No. 2 Sagarmal Agarwalla, filed an application before the Special Lund Acquisition Judge alleging that he had obtained a decree against Asaram Thikadar for a sum of Rs. 59,551-11-9 pies in Suit No. 192 of 1952 on the Original Side of this Court by which the premises known as ''Asha Villa Garden House'' were charged for the payment of the aforesaid sum; that the said decree was transferred for execution to the court of the 6th Subordinate Judge, 24-Parganas, with a certificate of non-satisfaction and he started Title Execution Case No. 7 of 1952 and in that execution case the subject matter of the acquisition was directed to be sold subject to a prior charge in favour of one Harsookdas Balkissendas; that the decree holder Sagarmal Agarwalla proceeded with the execution case and on February 18, 1955, brought the entire premises to sale and purchased it himself. On these allegations, he filed the application on October 3, 1955, claiming that he was the representative of the original Owner Asaram Thikadar and as such he was entitled to get the compensation in the place of the original owner. This application filed by Sagarmal Agarwalla has been allowed by the Special Land Acquisition Judge and in allowing this application he has held that Sagarmal Agarwalla auction purchased the properties of Asaram Thikadar including the properties which were the subject matter of the Award. He has further held that Sagarmal Agarwalla has acquired the right, title and interest of the previous owner in the acquired property and should be allowed to be added as a co-referring claimant. He has also held that the original referring claimant Asaram Thikadar having lost his interest by the auction sale, may or may not properly conduct the case for proving proper valuation. Against this order, the heirs of Asaram Thikadar have obtained this Rule.

Mr. Mallick appearing in support of the Rule has argued before us that the learned Special Land Acquisition Judge acted without jurisdiction in deciding controversial questions of title which were foreign to the enquiry u/s 18 of the Land Acquisition Act. He has placed before us Section 16 of the Land Acquisition Act which authorises the Collector after making an award to take possession of the land "which shall thereupon vest "absolutely in the Government free from all encumbrances." Mr. Mallick has argued that the learned Special Land Acquisition Judge has not come to any finding on the question whether possession had been taken by the Collector as contemplated by Section 16 of the Land Acquisition Act. If such possession bad been taken by the Collector, the judgment-debtor Asaram Thikadar could not have any saleable interest in the subject matter of the acquisition of February 18, 1955. when it was sold in auction.

Mr. Mitra, appearing for Sagarmall Agarwalla, has used an affidavit in opposition in which it is stated that according to the information supplied to his client on an information slip "C.S. plots Nos. 546 and 547 were taken possession of partly "on January 31, 1949 and on June 24, 1955." This statement, in our opinion, is hardly sufficient for the disposal of the controversy between the parties. We do not know whether the entire subject matter of the acquisition is covered by C.S. plots Nos. 546 and 547 nor do we know how much of those two plots was taken possession of by the Collector on January 31, 1949, and how much on June 24, 1955. But apart from this, the point that has been strongly argued by the learned advocate for the Petitioner is that upon the authorities of this Court it is quite clear that the jurisdiction of the Special Land Acquisition Judge in a reference u/s 18 of the Land Acquisition Act is confined to the objections which were raised by the persons who were parties to the proceeding before the Collector which brought about the reference. Any question which is not covered by the objections raised before the Collector cannot be gone into in a reference u/s 18 of the Land Acquisition Act. In support of this proposition, Mr. Mallick has placed before us the following decisions of this Court Gobinda Kumar Roy Chowdhury v. Debendra Kumar Roy Chowdhury (1907) 12 C.W.N. 98 where Rampini A.C., J. and Sharfuddin, J. held that in a reference u/s 18 of the Land Acquisition Act, it is not open to the Special Judge to go into questions raised by parties who did not object to the award and apply for a reference: Probal Chandra Mukherjee v. Raja Peary Mohan Mukherjee (1908) 12 C.W.N. 987, where Maclean, C.J. and Dass, J. held that a Land Acquisition Judge has no jurisdiction to deal with objections except those which were made by persons who were parties to the proceedings before the Collector and which brought about the reference; Mahananda Roy v. Srish Chandra Tewari (1910) 7 I.C. 10 where Holmwood and Sharfuddin, JJ. laid down the same principle following the decision in. Probal Chandra Mukherjee''s case. All these decisions were considered by Mukherjee and Roxburgh, JJ. in the case of Sm. Indumati Debi v. Ttilsi Thakurani (1941) 45 C.W.N. 912, where it was pointed out by their Lordships that a Land Acquisition Judge dealing with a reference u/s 30 of the Land Acquisition. Act has no jurisdiction to add as a party a person who was not a party to the proceedings before the Collector and who wishes to raise a new question not covered by the reference as made. In that case, the reference was undoubtedly u/s 30 of the Land Acquisition Act whereas in the case before us the reference was u/s 18 of the Land Acquisition Act. The distinction between a reference u/s 18 and a reference u/s 30 was pointed out in the body of the judgment in Indumati Debi''s case and their Lordships observed that although the scope of an enquiry u/s 30 of the Land Acquisition Act may be wider than the scope of an enquiry u/s 18 still the jurisdiction of a court in a reference u/s 30 is confined to the consideration of the dispute that is expressly referred to it by the Collector. Wow, if this be the principle with regard to an enquiry u/s 30 of the Land Acquisition Act, it must be so in the case of an enquiry u/s 18, the scope of which is narrower. Mr. Mitra, appearing on behalf of opposite party Sagarmall Agarwalla, has placed before us the decision of this Court in the case of Promotha Nath Mitra v. Rakhal Das A''ddy (1910) 11 C.L.J. 420, where Mookherjee and Teunon, JJ. held that under certain circumstances it was open to the Land Acquisition Judge to add a party in a reference pending before him. In that case the subject matter of the acquisition was sold at a revenue sale during the pendency of the proceeding before the Land Acquisition Collector and before the making of an award and the revenue sale was also confirmed with the result that title vested in the revenue sale purchaser on a date which was four months before the date of taking possession of the property by the Government. In these circumstances, there can be no possible doubt upon the admitted facts that the title of the original proprietor had passed to the revenue sale purchaser during the pendency of the proceeding before the Land Acquisition Collector and such a revenue sale purchaser was allowed to be added as a party with the reservation that in the Land Acquisition proceedings he could raise only those objections which had been raised by the defaulting proprietor and that any new right which he had acquired as a purchaser at a revenue sale could be decided only in a separate suit and not in a proceeding before the Land Acquisition Judge. Mr. Mitra also relied upon the case of Golap Khan v. Bholanath Marick (1912) 12 C.L.J. 545, where the title of the referring claimant passed to a third party under a compromise. In these circumstances, Mookerjee and Carnuff, JJ., held that the attaching creditor should be added as a party to the proceeding before the Land Acquisition Collector on the same ground as in the case of Promotha Nath Mitra. A review of these authorities makes it clear that although under certain circumstances the Land Acquisition Judge may add a new party to a reference he will not exercise that power if the addition of that party involves a decision on any controversial question of law or of fact which is not covered by the objections put forward before the Land Acquisition Collector. Now, the object of the application filed by opposite party No. 2, Sagarmall Agarwalla, in the case before us on October 3, 1955, is two fold. In the first place, he wants an adjudication on the question, that he has acquired a valid title to Asha Villa Garden House by his auction purchase on February 18, 1955, and in the second place he wants that since the title of the original proprietor has been extinguished as a result of his auction purchase, the entire compensation is to be paid to him rather than to the original proprietor or his heirs. I have no doubt, in my mind, that neither of these questions is covered by the reference made by the Collector u/s 18 of the Land Acquisition Act and as such, the Special Land Acquisition Judge has no jurisdiction to go into these questions. I have, in an earlier part of this judgment, summarised the findings of the Special Land Acquisition Judge with regard to the title of the auction purchaser Sagarmall Agarwalla. Those findings, in my opinion, are entirely outside the scope of the enquiry in a reference u/s 18 of the Land Acquisition Act.

Mr. Mitra also placed before us another Division Bench judgment of this Court in the case of Hashim Ibrahim Saleji v. The Secretary of State for India in Council (1927) 31 C.W.N. 384 where Panton and Mallik, JJ., held that the addition of parties does not necessarily violate the principle that in hearing a reference under the Land Acquisition Act, the Court can only deal with an objection which has been referred to it and it cannot go into any question raised for the first time by a party who has not referred any question or any objection to it u/s 18 of the Act. In that case, the reference was made at the instance of three mutwallis of a certain Wakf estate but thereafter as the result of a litigation on the Original Side of this Court a scheme had been framed under which the Wakf estate was placed under the management of seven mutwallis. After the decision of the Court on the Original Side, four of the mutwallis applied to the Land Acquisition Judge to be added as parties and the Land Acquisition Judge refused their prayer. In revision, this Court set aside the order of the Land Acquisition Judge and held that the mutwallis, who had been appointed under the scheme framed by the Original Side of this Court, should have been impleaded as parties. From these facts, it is clear that the question whether the four mutwallis who were impleaded as parties had a right to represent the Wakf estate had already been decided by a competent court and the Land Acquisition Judge had nothing more to do except to admit the judgment of the competent court and add the newly appointed mutwallis as parties. The Land Acquisition Judge was not there required to adjudicate on the question whether the persons who were applying to be added as parties had a right to represent the Wakf estate as mutwallis because that question had already been decided by a competent court. If in the case before us Sagarmall Agarwalla had obtained a decision from a competent civil court to the effect that he had acquired a valid title to the Asha Valley Garden House by his auction purchase on February 18, 1955, and had produced that judgment before the learned Land Acquisition Judge, there could be no question that he could and should have been added as a party but in the absence of any such decision from a competent court, he cannot ask the Special Land Acquisition Judge to enter into the question of the validity of the title acquired by him by his auction purchase. That is why we cannot hold that the learned Special Land Acquisition Judge had jurisdiction to enter into the question of the validity of the title of Sagarmall Agarwalla.

It is no doubt true that u/s 53 of the Land Acquisition Act, the provisions of the CPC shall apply to all proceedings before the court under this Act but this provision is subject to the qualification that the provisions of the CPC which are inconsistent with anything contained in the Act will not apply. It has been uniformly laid down by a number of Bench decisions of this Court that the scope of the enquiry u/s 18 of the Land Acquisition Act is confined to the objections raised by the referring claimant, before the Collector and those objections should be one of four classes enumerated in Section 18 of the Land Acquisition Act, namely, (a) objection to the measurement of the land (b) objection to the amount of compensation; (c) objection to the persons to whom the compensation is payable and (d) objection to the apportionment of the compensation among the persons interested. The question whether Sagarmall had acquired a valid title to the property of Asaram Thikadar or whether the title of Asaram Thikadar had been extinguished as a result of the auction purchase of Sagarmall Agarwalla is not covered by any of the four classes of objections enumerated in Section 18 of the Land Acquisition Act and therefore it falls outside the scope of the enquiry.

Mr. Mitra has also contended that in any case Sagarmall Agarwalla is a person interested within the meaning of Section 20(b) of the Land Acquisition Act and as such, a notice should be issued upon him. The expression "persons interested" has been defined in Section 3(b) which lays down that "a person interested" includes "all persons claiming an interest in compensation to be "made on account of the acquisition of land under this Act." If Sagarmall Agarwalla had acquired a valid title to the property of Asaram Thikadar, he would certainly be a person interested within the meaning of the Act but the question is whether he has acquired such a title or, in other words, whether on the date on which Sagarmall Agarwalla auction purchased the subject matter of the acquisition proceedings, the judgment debtor Asaram Thikadar had any saleable interest therein, is not within the scope of an enquiry u/s 18 of the Act. We are accordingly unable to hold that the learned Special Land Acquisition Judge was right in granting the application filed by opposite party No. 2.

We would, accordingly, make this Rule absolute and set aside the order of the Special Land Acquisition Judge, dated November 29, 1955, leaving it open to Sagarmall Agarwalla to have a decision on his title from a competent civil court.

The Petitioners are entitled to their costs. We assess the hearing fee at two gold mohurs.

This judgment will not, in any way, prejudice the decision in any title suit which Sagarmall Agarwalla may institute in future.

Guha, J.

I agree.