Padmanabhan Narayanan and Others vs Parvathi Amma Kavukutty Amma

Joseph Vithayathil, J.—Plaintiff is the Appellant. The suit is for recovery of money due to the Plaintiff which was wrongly received by the Defendant. According to the Plaintiff the plaint schedule property belongs to her. A portion of the property was acquired by the State, and out of the compensation amount one-half was wrongly paid to the Defendant by the Land Acquisition Officer. It is alleged that the Defendant has no manner of right to the property . and she is not entitled to any portion of the compensation amount.

The Defendant contended that one-half of the property belonged to her, that she was, therefore, entitled to one-half of the compensation amount that even if the apportionment of the compensation amount by the Land Acquisition Officer was not proper the Plaintiff ought to have applied for a reference to the District Court u/s 18 of tire Travancore Laud Acquisition Act and that, therefore, the suit was not maintainable.

The trial Court held that the suit was maintainable and that the Defendant was not entitled to any portion of the compensation amount and accordingly decreed the suit, In .appeal, the District Court held that the remedy ,of the Plaintiff was to apply for a reference to the District Court under the Land Acquisition Act and that the suit was not maintainable. The suit was, therefore, dismissed with costs.

The only question for decision in this second appeal is whether the suit is maintainable. Before going into the question it is necessary to refer to the relevant provisions of the Travancore Land Acquisition Act 21 of 1089.

Section 9 of the Act requires that before the State -takes possession of land under the Act, the Division Peishkar should cause notice to be published at convenient places on or near the land stating that Government intended to take possession of it and that claims to compensation for all interests in the land should be made to him. The notice should also state the particulars of the land and should require all persons interested in the land to appear before the Division Peishkar and state the nature of their respective interests in the land and the amount and particulars of their claim to compensation for such interests and their objections, if any, to the measurements made. A notice to the same effect has to be served on the occupier (if any) of the land and on all such persons known or believed to be interested therein. The notice should also be published in the Government Gazette. Section 11 relates to the enquiry by the Division Peishkar into the measurements and value of the land, the respective interests of the persons claiming the compensation and also the amount of compensation to be awarded. Sub-Section 2 (3) provides that the Division Peishkar .should apportion the compensation money.

among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether or not they have respectively appeared before him.

Section 12 provides that the award would be

final and conclusive evidence as between the Division Peishkar and the persons interested, whether they have respectively appeared before the Division Peishkar or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

Sub-section (2) of that section provides that the Division Peishkar should

give immediate notice of the award to such of the persons interested as are not present personally or by their representatives when the award is made.

Section 15 provided that if the Division Peishkar and all the persons interested agree as to the amount of compensation to be allowed, the Division Peishkar shall with the previous sanction of the Government, make an award for the same. Section 18 (1) provides that

any person interested who has not accepted the award, may, by written application to the Division Peishkar require that the matter be referred by

the Division Peishkar for the determination of the District Court within whose jurisdiction the land is situate whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of compensation among the persons interested.

Section. 27 further provides that if any dispute arises as to the apportionment of the amount of compensation or any part thereof or as to the persons to whom it is payable the Division Peishkar may refer such dispute to the decision of the District Court within whose jurisdiction the land is situate. Section 28 is the only other section which has to be referred to. It reads:

(1) On making an. award u/s 11 or 15, the Division Peishkar shall tender payment of the ''compensation awarded by him to the persons interested entitled thereto according to the award. and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next Sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or to the apportionment of it, the Division Peishkar shall deposit the amount of the compensation in the Court to which a reference u/s 18 would be submitted. Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.

Provided also that no person who has received the amount otherwise than under protest shall be entitled to make an application u/s 18:

Provided also that nothing herein contained shall affect the liability of any person who may receive the whole or any part of any compensation awarded under this Regulation, to pay the same to the person lawfully entitled thereto.

According to the Appellant, the provision contained in Section 18 relating to reference to the District Court is only an enabling provision and it does not take away the right of the party aggrieved to institute a suit for enforcing his claim regarding the compensation amount. It is also contended that the third proviso to Section 28 (2) expressly reserves his right to sue any person who has wrongly received any portion of the amount. The Respondent''s case is that the jurisdiction conferred on the District Court under Sections 18 and 27 of the Travancore Land Acquisition Act is exclusive and that the jurisdiction of the ordinary civil Court is ousted in respect of the matters provided for in those sections. It is also contended that the third proviso to Section 28 (2) does not confer on a person who is a party to the land acquisition proceedings and to whom notices under Sections 9 and 12 have been given the right to institute a fresh suit in respect of the apportionment of the compensation amount.

With regard to the first point, we are of ". Opinion that the jurisdiction conferred on the District Court under the provisions of the Land Acquisition Act is exclusive and that the only remedy of irparty to the Land Acquisition proceedings on whom notices under Sections 9 and 12 have been served is to make a reference to the District Court as provided in Section 18. The question was discussed at length by Mukherjee, J., in Bhandi Singh v. Ramadhin Rai 10 Cal WN 991 . The learned Judge observed as follows:

When statutory rights and liabilities have- -been created and jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, is such. jurisdiction exclusive or is it ''concurrent with that. possessed by the ordinary Courts? In my opinion, such jurisdiction is exclusive and has to be exercised subject to the exception contained in the-Statute itself; for it is an elementary rule of construction of statutes, as stated by Lopes, L. J., in R. v. Essex County Court Judge, (1887) 18 QBD 704 (B), that in the case of a Act which creates a. new jurisdiction, a new procedure, new forms or-new remedies the procedure, forms or remedies-there prescribed and no others must be followed. Substantially the same, principle has been recognized, in the case of Ramachandra v. Secretary of State, ILR 12 Mad 105 where it was held upon the authority of Governor v. Meredith, (1792) 4 TR 794:Stevens v. Jeacocke, (1848) 11 QB 731 (E) and West v. Downman,(1880) 14 Ch D 111 (F)" that when by an Act of the Legislature, powers are-, given to any person for a public purpose from which an injury results to an individual, if the mode of re-dressing the injury is pointed out by the Statute, the jurisdiction of the ordinary Courts is ousted and party cannot proceed by action but must avail himself of the specific remedy provided by the statute.

This view is also supported to some extent b; the decision of the Judicial Committee in Raja Nil moni Singh Deo v. Ram Bhandhoo, ILR 7 Cal 388 where it was held that it would not be reasonable to permit a person whose claim under the Land: Acquisition Act of 1870 had been adjudicated on in-''l the manner pointed out by the Act, to have that claim reopened and re-heard in another suit.

This position appears to mo to be unquestionably right on principle; if it were not for the Statute;"'' the local Government would not have any authority to acquire private property for public purpose without the consent of the owners thereof, but it is. a primary requisite in-the appropriation of land for public purposes, that compensation shall be made there for and consequently it was inevitable that the Statute should provide for some tribunal for the assessment of the compensation; where such tribunal has been provided, upon what principle can if be contended that recourse need not be had to the Court invested with special jurisdiction, but that the rights which would be non-existent without the Statute may be litigated in the ordinary Courts?

In my opinion, the jurisdiction of the special Court ought to be regarded as exclusive. See Sedg-wich on Construction of Statutory Law, 2nd Edition,''. pages 341, 464, where it is shown that this position,'' is supported by high authority, and reference made to Brown v. Beatty, (1857) 34 Miss 227 in which Smith, C. J., following the observation Lord Truro, L. C, in London and N. W. Ry, Co, v. Bradley, (1851) 3 Mac & G 336 holding that? where in cases of compulsory acquisition of land, a certain form of proceeding has been prescribe and a certain tribunal has been created for the do-. termination of the right to and the award of compensation the parties are confined to the remed prescribed: to the same effect are the cases of Hickox v. City of Cleveland, (1838) 8 Ohio 543 and Aldrich v. Cheshire Rly. Co., (1850) 21. Nil 359 which are authorities for the proposition that where the Statute itself provides the mode of assessment and payment of compensation due to the exercise of the right of eminent domain, no separate suit can be maintained for that purpose.

ILR 7 Cal 388 was a case under the Land Requisition Act, 10 of 1870. u/s 38 of that Act when there is dispute about the apportionment of the compensation amount the Collector is bound to refer such dispute to the decision of the Court. In that case the dispute was referred to the Court and the Court gave a decision on the matter. Without appealing from that decision one of the parties instituted a suit to recover the compensation amount deposited by the Collector.

The Privy Council held that the provisions of the Act relating to settlement and distribution of the compensation amount were intended to be final, that the amount and the apportionment of the same having been settled by a competent Court and the decision not having been appealed against the apportionment was final and that the suit was not maintainable. To the same effect is the decision in Surjya Singh v. Golamjat Singh, 47 Cal WN 619 The principle enunciated by Mukhcrjee, J., in 10 Cal WN 991 was followed by Chatterjee and Panton, JJ., in Saibesh Chandra v. Bijoychand AIR 1922 Cal 4 by Staples, A. J. C, in AIR 1933 322 (Nagpur) and by Srivastava J. in AIR 1933 100 (Oudh)

We are clearly of opinion that the remedy of a party to the land acquisition proceedings who has objection to the apportionment of the compensation made by the Land Acquisition Officer is to apply for a reference to the District Court u/s 18 of the Land Acquisition Act and that he cannot institute a suit for the purpose. But, if he is not given notices under Sections 9 and 12 of the Act he cannot be said to be a party to the land acquisition proceedings in the legal sense, and in such a case there is nothing debarring him from instituting a civil suit to establish his claim for the compensation amount or any part of it.

To this effect is the decision in Ilurmutjan Bibi v. Padma Lochun Dass, ILR 12 Cal 333 (P). In that case notice relating to the apportionment of the compensation amount was not given to a party who subsequently brought a civil suit. Wilson and Beverley, JJ., held that the apportionment of the compensation is a distinct proceeding from that of settling the amount, that the dispute was decided only as between those persons who were actually before Court, that if it was intended to bind any other person not then before the Court and not a party to the dispute notice of the further proceedings should be served on such person and that, if the compensation amount was paid without notice to him, he would not be debarred from recovering his share of the money by means of a civil suit. This position was accepted by Chatterjee and Panton, J J., in AIR 1922 Cal 4 (M), referred to above. It was observed:

We quite agree in holding that where a person has no notice of the apportionment proceedings he cannot be bound by the award or ''by the decision.

But, in the present case, it is not disputed that the Plaintiff was given notice both u/s 9 and u/s 12.

The further question for consideration is the effect of the third proviso to Section 28 (2) of the Travancore Land Acquisition Act (Section 31 (2) of the Indian Act). That proviso, as stated already, says that nothing ''contained in the section shall affect the liability of any person who may receive the whole or any part of the compensation amount to pay the same to the person lawfully entitled thereto.

According to the Appellant, this provision expressly reserves the right of a party to the Land Acquisition Proceedings to institute a suit for the recovery of the whole or any part of the compensation amount, wrongfully paid to another by the Land Acquisition Officer. We do not think that the proviso has that effect. In ILR 7 Cal 388 (G) (already referred to), the Privy Council considered the effect of the proviso to Section 40 of Act X of 1870 which was similar in terms as the third proviso to Section 31(2) of Act I of 1894. Their Lordships observed:

Such a proviso, which appears to have .been but a repetition of a provision in a previous Act in primavera, is necessary in this as in almost all Acts of a similar character. It is necessary for the Government, or the persons or ''company entitled to take property compulsorily, to deal with those who are in possession, or ostensibly the owners; but it may happen, and frequently it has happened, that the real owners, possibly being infants or persons under disability, do not appear, and are not dealt with in the first instance; and therefore a provision of this sort is necessary for the purpose of enabling the parties who have a real title to obtain the compensation money.

Their Lordships further observed that the proviso applied only to persons whose rights have not been adjudicated upon in pursuance of. Sections 38 and 39 of Act 10 of 1870. This interpretation of the proviso was adopted by Chatterjee and Panton, JJ., in AIR 1922 Cal 4 (M). The learned Judges said:

The proviso therefore must be given a limited application, and we think that it applies only to cases where the person is under a "disability or is not served with notice of the proceedings before the Collector.

The same view was taken in AIR 1933 222 (Nagpur) and in AIR 1933 100 (Oudh) It was a''ceordingly held in those cases that when notice of the land acquisition proceedings was given to a party and he was under no disability to appear and press his claim before the Land Acquisition Officer the apportionment of the compensation amount by the Land Acquisition Officer would be final and he would have no right of a separate suit.

But, a different view was taken by the Calcutta High Court in Srimati Punnabati Dai v. Rajah Pudmanund Singh Bahadur, 7 Cal WN 538 (Q) and 10 Cal WN 991 already referred to. In 7 Cal WN 538 it was held that even in a case in which a party received notice of the land acquisition proceedings and took part in those proceedings that would not debar him from instituting a suit to establish his claim in respect of the compensation amount. Although the learned Judges referred to the contention that there being a special remedy provided by the Land Acquisition Act the general remedy was not available they did not discuss the question and did not also consider the interpretation put "upon the proviso by the Privy Council in ILR 7 Cal 388 (G). In 10 Cal WN 091 ( Stephen, J., referred to the above decision and observed:

According to the judgment in Smt. Punnabati Dai v. Pudmanand Singh (Q), this (proviso to Section 31 (2)) leaves it open to any of the persons who appears before the Collector to bring an action in the civil Court to recover money awarded to any other person. We are not concerned with the effect of this decision in so far as it recognises a right to sue in persons who were before the Collector; but it cannot be doubted that such a right exists in a person who was not, and who cannot be taken to have been, before him, as is fully borne out by the decision in the case we have just referred to 7 Cal WN 538 -(Q)) and that in ILR 7 Cal 388

The interpretation put upon the proviso by the Privy Council in ILR 7 Cal 388 (G), was not considered in 10 Cal WN 991 (A). Mukherjee J., dealt with the question in the following manner.

the effect of this proviso, to my mind, is that where an objection as to the measurement of the land or the amount of the compensation payable thereof must be determined exclusively by a reference to the Civil Court u/s 18, Clause (1), a question relating to the persons to whom the compensation , is payable or its apportionment among the persons interested may be determined either under reference as contemplated by Section 18 (1) or by a suit at the instance of a person who may be lawfully entitled to it as against another who has withdrawn the compensation money either without any right or in excess of his just dues. This distinction is just and may be justified upon a broad and intelligible principle.

As regards a dispute relating to the measurement of the land and the amount of compensation to be paid thereof the Collector, as representing the authority for whom the acquisition is made, would . be the opposing party, his rights and liabilities are entirely statutory and he may justly claim that they should be determined in the forum specially created for the purpose.

On the other hand, in the event of a dispute as to the persons to whom the compensation is payable or its apportionment amongst them proportionate to their respective interest the Collector would not have any concern whatsoever; and even without the Statute if, when land which belongs to A and B has been converted into money, A takes more than his share of the proceeds, B would be entitled, according to the rule of justice, equity and good conscience to demand restitution from A.

It must hold accordingly that in the case of a dispute as to the persons among whom the compensation is to be apportioned or the extent of their interest, the Land Acquisition Judge and the ordinary Civil Court have practically concurrent jurisdiction, by reason of the third proviso to Section 31 Clause (2) read with Section 18 of the Act. This, however, necessarily leads to the question that if a litigant has made his choice and availed himself of a reference to the Court u/s 18, he cannot again ask for an opportunity to litigate the same matter in the ordinary Court; the decision of the Judicial Committee ILR 7 Cal 388 (G), to learly supports this view.

On the other hand, if there has been no reference to the Court u/s 18, a suit would be maintainable for the adjudication of the rights of the claims inter se because Section 12 to which I have already! referred makes the award of the Collector final and conclusive only as between himself on the one handjjj and the persons interested on the other and not as between the claims inter se. This view is in accordance with that taken by the Court in the case of 7 Cal WN 538 (Q), and is substantially in agreement with the decision in ILR 12 Cal 333 (P), which arises upon the construction of the provisions of Sections 39 and 40 of Act 10 of 1870.

This view of Mukherjee, J., was not accepted by Chatterjee and Panton, JJ., in AIR 1922 Cal 4 (M). The learned Judges observed:

Although the Legislature has created a special Court (the principal Court of original jurisdiction or a judicial officer specially empowered to perform the functions of a Court under tire Act) to adjudicate all questions of apportionment upon a refere no made within the period fixed by the Act, the effect of holding that such Court and the ordinary civil; Courts have concurrent jurisdiction will be that party may institute a suit even in a Munsiff''s Court, in cases where tire amount in dispute does not exceed Rs. 1000 and that long after tire periods pre-i scribed by Section 18.

The Act expressly provides that any party dissatisfied with the award of the Collector as regards'' apportionment may apply to the Collector for a reference u/s 18 and on such a reference he can get relief in the same way as he can get in the ordinary civil Court as the procedure in the Court under the Act is the same as in ordinary Civil Courts with a right of appeal to the High Court. It would not be reasonable to hold that the legislature having pro vided a special remedy in the Land Acquisition Act intended to make it optional with the party to apply for a reference u/s 18 or to institute a suit is the ordinary civil Court.

The scope of the proviso may be amply justified by holding that it applies only to particular per'' sons. The Collector u/s 9 has to serve notice upon the persons known or believed to be interest in the land. There may be persons who are the known to the Collector and who might not be possession and the interests of this class of person are protected by the proviso to Section 31, Sub-section (2).

In Bago v. Keshan Beg AIR 1926 Lah 82 (R), the Lahore High Court accepted the view takt by Mukherjee, J., in 10 Cal WN 991 in prefi ence to the view expressed in AIR 1922 Cal 4 Campbell, J., held that the proviso to Section 31 (2) do not carry the restricted meaning put upon it by the learned Judges who decided AIR 1922 Cal 4 CM)? In AIR 1933 322 (Nagpur) , the Nagpur Judicial Commissioners'' Court (as it then was) preferred to follow the view taken in AIR 1922 Cal 4 (M). After referring to the decisions in 7 Cal WN 538 (Q) and lfri Cal WN 991 (A), Staples, A. J. C. observed:

In AIR 1922 Cal. 4 (M) upon which I rely; and which is a case very analogous to the present, case, the whole matter has been exhaustively sidered and it has been held that the Act has provided a special procedure for parties dissatisfied with the award, that such parties must avail them-''selves of that procedure and that, if they fail to do so, they cannot get relief from the civil courts in the prdinary way.

It was further held, following the decision of their Lordships of the Privy Council in ILR 7 Cal. 388 that the third proviso to Section 31(2) only applies to persons who had not an opportunity of appearing but who were interested in the property. ''The decision of their Lordships of the Privy Council is concerned with persons who are real owners of the land, but who through some disabilities, do not appear and are not dealt with in the land acquisition proceedings.

From this, I think, it may be rightly inferred that the view now taken in AIR 1922 Cal. 4 (M) is corset and that persons who have received notice and who wave appeared before the Collector at the time of the apportionment of the compensation money must, if they object to that apportionment, make an application u/s 18 of the Act and are not able to avail themselves of proviso 3 to Section 31 (2) of the Act.

In AIR 1933 100 (Oudh) Srivastava J. considered the decision in AIR 1926 Lah. 321 (R) but refused to follow the view taken by Campbell J. in that case, and accepted the view taken in AIR 1922 Cal. 4 (M).

There is nothing in the wording of the third proviso to Section 28(2) of the Travancore Land Acquisition Act (S. 31 (2) of the Indian Act) to justify the restricted interpretation put upon it in ILR 7 Cal 388 if we may say so with respect. The proviso only says that nothing contained in Section 28 (2) shall affect the liability of any person who may receive the whole or any part of the compensation awarded under the Act to pay the same to the person lawfully entitled thereto.

It will be stretching the language of the proviso to make it apply only to infants or persons under disability who do not appear before the Land Acquisition Officer. We venture to give a different interpretation to the proviso. Part v. of the Act relates to payment of compensation money. Section 28(1) provides that on making an award the Division Peishkar shall tender payment of the compensation awarded by him to the persons entitled thereto according to the award and shall pay it to them unless ''prevented by some one or more of the contingencies ''mentioned in Sub-section (2).

Sub-section (2) provides that if the parties do not "consent to receive the amount or if there be no person competent to alienate the land or if there be ,any dispute as to the title to receive the compensation or as to the apportionment of it, the Division Peishkar shall deposit die amount in court to which a reference u/s 18 would be submitted. The first proviso to the Sub-section says that any person admitted to be interested may receive payment of the money under protest as to the sufficiency of the amount. The second proviso says that no person who had received the amount otherwise than under protest shall be entitled to make an application under is. 18.

Then the third proviso says that nothing contained in the Sub-section shall affect the liability of a person who may receive the whole or any part of he compensation to pay the same to the person law- fully entitled thereto. In our opinion, the third proviso only means this: If any person receives the''" compensation, in full or in part, from the Land Acquisition Officer and if, after reference to the District Court by any party, that court finds that he is[,i not entitled to the whole or part of the amount he received, he will be liable to pay the whole or partjj1 of the amount, as the case may be, to the person who is found to be lawfully entitled thereto.

There is nothing in the wording of the proviso to show that the liability mentioned therein is the liability that is determined in a separate suit. Section 18 provides for a reference to the District Court relating to the apportionment of the compensation. Section 28. provides for payment of the compensation by the Land Acquisition Officer even before a reference is made to the District Court u/s 18.

Therefore, in the absence of any words in the proviso to indicate that the liability of the person who receives the whole or part of the compensation from the Land Acquisition Officer to pay the same to the person lawfully entitled thereto has to be determined not by means of a reference to the District Court as provided in the Act but by means of a separate suit, we find no reason to interpret the proviso as referring to a separate suit and not to the reference. This aspect of the question was not considered either in ILR 7 Cal. 388 (G) or in any| of the subsequent decisions referred to above.

We are also unable to accept, if we may say so, with respect, the view taken in 7 Cal WN 538 (Q), 10 Cal WN 991 (A) and AIR 1926 Lah 32l (R) regarding the interpretation of the proviso. We do not think that the proviso amounts to an unqualified reservation of the right of any person, whether he is a party to the land acquisition proceedings to whom notices under Sections 9 and 12 have been given, or not, to institute a civil suit for apportionment of the compensation amount.

We do not think that it was the intention of the Legislature in enacting the proviso to make it optional to a person who has objection to the apportionment of the compensation by the Land Acquisition Officer either to make a reference u/s 18 or to file a separate suit. The result of allowing such option will be that in a Case in which there are more than one. person objecting to the apportionment of the compensation one may apply for a reference and another may file a suit.

Again, we do not think that the jurisdiction of the District Court, which is constituted under the Act a special court for adjudicating on all matters referred to in Section 18, is exclusive only as regards some of the matters mentioned in the section viz., the measurement of the land and the amount of compensation, and not as regards the apportionment of the compensation which also is one of the matters in respect of which reference is provided for under the section.

We may refer in this connection to the-following observation of Balakrishna Iyer, J. in K. Nagarathnammal Vs. S. Ibrahim Saheb and Another, .

Where a Statute takes off and occupies a field-previously not regulated by legislation the rights and powers conferred and the obligations imposed by the-Statute must be worked out within the statutory 1''raine-worlc. If a statute confers a particular right and prescribes a particular mode of its enforcement, the enforcement of the right must be sought in that mode.

As we have already seen, this principle was accepted by Mukherjee, J. in 10 Cal. WN 991 We do not think that there is anything in the third proviso to Section 28 (2) to justify a deviation from this principle.

Section 18 provides the remedy which a person who has any grievance relating to the apportionment of the compensation should resort to, and there is no reason why he should not work out his remedy within the frame-work of the Statute itself and should be given the option either to avail himself of the remedy provided by the Statute or to institute a separate suit. For these reasons, we hold that the third proviso to Section 28 (2) of the Travancore Land Acquisition Act does not confer on the Plaintiff the right to institute, a separate suit in respect of the apportionment of the compensation made by the Land Acquisition Officer.

In the result, we confirm the judgment and decree of the lower appellate court and dismiss the second appeal with costs.