Mukam Masid Malikyar vs State through Collector

This court is under obligation to the learned Government Advocate for placing before it all the relevant caselaw on a subject of some difficultly.

This is an application in revision from an order of the Collector of Srinagar refusing to refer a matter of an award under a land acquisition case to a

Civil Court. It may be admitted to start with that the order of the Collector as regards limitation is obviously wrong as he has omitted to notice that

the applicant was neither present nor represented before home at the time he made his award and, therefore, the period of limitation applicable to

him would be that provided in clause (b) of proviso to Section 18 of the Regulation for the Acquisition of land of this State and the period of

limitation applicable was six months from the date of the Collector's award because there is no evidence that the applicant had any notice from the

Collector under Section 12, subsection (2) of the Regulation.

The error of law of the Collector, however, does not automatically give jurisdiction to this Court to revise his order. The question for determination

is whether a Collector under Section 18, Part III of the Regulation is a Court and whether if he is a Court, he is a Court subordinate to this Court

whose proceedings are capable of revision by this court under Section 115 of the Code of Civil Procedure. The Regulation of the State has

practically been borrowed from the British Indian Land Acquisition Act. No. 1 of 1894, so in considering the provisions of the State Law

reference may safely be made to rulings of British Indian Courts. To start with it has been laid down by their Lordships of the Privy Council in Ezra

v. Secretary of State for India (52 Calcutta 605) that the Collector in making an award is not a judicial officer. The proceedings resulting in an

award by the Collector are administrative and not judicial. The ruling definitely determines the question that the Collector upto the time of making a

reference, that is, up to his proceedings under Part II of the Land Acquisition Act of British India is only an administrative officer and not a court.

The next question for determination is whether as soon as he makes an award he is turned into a court when he exercises functions under Section

18 of the Land Acquisition Act. Recently a Divisional Bench of the Oudh Chief Court in the ruling reported as 1932 Oudh at page 1180 has gone

round this direct question by holding that the Collector has no authority whatever to decide the point whether an application made to him for

reference to the civil court is time barred or not. So far as the research of the court into rulings goes, it does not seem likely that the legislature

should have deprived him of the power to decide whether a reference should be made or not. The proviso regarding limitation under Section 18

appears before the provisions of Section 29 which lay down how a reference should be made by a Collector and what information should be

supplied by him to the civil court. To my mind, therefore, it cannot be urged that the Collector, as soon as an application is made, is bound to make

a reference without seeing whether the proviso to Section 128 has been satisfied or not. The Allahabad High Court has expressed a view

previously in of limitation one way or the other, the Act does not allow an appeal against his decision to the District Judge, the High Court or any

other superior authority. If the Collector refuses to make a reference, holding that the application made to him for such reference had been made

beyond the period of limitation prescribed it is obvious that the aggrieved person the owners whose land was acquired, could not have challenged

his view before any tribunals. The Secretary of State likewise cannot question its correctness, if on the question of limitation the Collector's view is

adverse to him and if he makes a reference to the Court. The learned Judge was further of opinion that even after the making of the award under

the principles in the case of Ezra laid down by their Lordships of the Privy Council, the Collector would be considered to be acting in an

administrative and not in a Judicial capacity. The Calcutta High Court in the case Krishana Das Ropy v. the Land Acquisition Collector of Patna

(19 C.W.N. 327, 1911) held that the High Court had power and jurisdiction to interfere with the order of a Collector refusing to make a

reference. The reasoning in; that case is not based on the provisions of the Land Acquisition Act but the reasons cited in favour of such a decision

are of convenience on the ground that if the High Court refused jurisdiction, the aggrieved party will have no remedy against the arbitrary orders of

the Collector. Such an argument may be used to recommend a change in the legislation s as said by Ranmessan J., in the Full Bwnch Madras

Ruling reported at 1924 Madras page 442 (Abdul Satar Sahib v. the Special Deputy Collector of Acquisition). This ruling of the Calcutta High

Court was followed by the Patna High Court in the ruling reported in 11 Patna Law Journal at page 204. In Madras also the view held at first was

in favour of interference of the High Court (Parameswara Aiyar v. Land Acquisition Collector, Palghat, 42 Madras page 231, 1918). This view

was dissented from by the Bombay High Court in 1923 by a Divisional Bench composed of Macleod C.J. and Crump J. (A.I.R. 1923 Bombay

290, Balkrishna Daj Gupta v. Collector Bombay Suburban). His Lordship the Chief Justice examined two questions whether the Land Acquisition

officer was a Court within the meaning of Section 115 of the Code of Civil Procedure and further whether he was such a court as would be

subordinate to the jurisdiction of the High Court. Both these questions were answered in the negative. All these rulings were examined with great

care by a Divisional Bench of the Madras High Court already referred to. The Judgment of Odgers J. recapitulates the rulings of the different High

Courts and the Chief Justice and the two other Judges of the Court agreed with him. The learned Judge (P. 445) admitted that it was correctly

pointed out that when the Collector acts under Part III of which Section 18 forms a part, he is acting in a different capacity from that of an

administrator 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

according to the learned Judge, the Collector acted judicially. The learned Judge went on to enquire whether the Collector acted as a Court. He

pointed out that it was 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 he quoted an instance of the case of Registration authorities who have to decide whether or not they

will accept registration of certain document and in respect of refusal of registration by a registration officer no revision petition lies to the High

Court because the SubRegistrar is not a Court at all. According to the learned Judge the Collector though he acted judicially under Section 18,

was not a Court. The learned Judges further held that the Collector even if he was a Court, was not a Court subordinate to the High Court within

the meaning of Section 115 C.P.C. For the purposes of this Code, the District Court is subordinate to the High Court and every civil court of a

grade inferior to that of a District Judge and every Court of Small Causes is subordinate to the High Court and the District Court.

In British India various Provinces have their separate Civil Courts Act. In this State also there is a State Civil Courts Regulation and under Section

13 of that Regulation only Civil Courts are subordinate to the High Court. It is well known that the Collector performs the function of a Revenue

Court also and in orders passed by him as a Revenue Court this Court will have no power of interference.

I am satisfied that in the conflict of authorities the more reasoned view denies the jurisdiction of this Court. It cannot be denied that the result of this

discussion leaves the door open to arbitrary order of the Collector. Justice, however, is to be done by a Court in accordance with the law and in

any place where law is found not to provide against arbitrary acts of certain officers of the Government it is the business of the legislature and not

that of the Court to amend the law.

This application is dismissed for want of jurisdiction. No order is made as to costs.