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Judgment
Mian Jalaluddin, J.
(1) The petitioners have filed this Writ petition under Art. 32 (2A) of the Constitution of India read with Section 103 of the Constitution of Jammu
and Kashmir for the issuance of a Writ directing the Collector, respondent No. 2 to award compensation of the land belonging to the petitioners
acquired by him by apportioning the amount of compensation according to circular dated 12865 published in the Government Gazette No. 20 of
1965 between the petitioners and respondents Nos. 3 to 6, or any other writ or direction as the court may deem appropriate in the circumstances
of the case.
(2) The petitioners have averred that Kh. Nos. 202/73, 369/78 and 203 Min/79 measuring 28 kanals and 11 marlas situate in village Jakheni
Tehsil Udhampur belonged to the petitioners and the respondent Nos. 3 to 6 are tenants and pay cash rent @ Rs. 18/ per annum. The above
mentioned land was acquired under the Jammu and Kashmir Land Acquisition Act, for the construction of grid station at Udhampur and that a
draft award was prepared by the Collector respondent No. 2. It was submitted to the Secretary to Government Revenue Department on 16869
for approval of the Revenue Minister who accorded his approval vide his No. Rev. (LA) 304/69. The award was announced on 151069. The
total amount of compensation awarded was Rs. 69,409.25. Respondent No. 2 prepared apportionment statement of compensation which was to
be treated as a part of the award announced on 15101969 (vide annexure A) Respondent No. 2, however, omitted to apportion the amount of
compensation between the petitioners (the landlords) and the respondents Nos. 3 to 6 (the tenants). The award as such is an incomplete document
and could not be sustained. Reference under section 18 of the Land Acquisition Act in so far as it relates to the disputes regarding the
apportionment could not be possible in the absence of a decision regarding apportionment. After the passing of the award when the petitioners
approached the Collector respondent No. 2 with a request for the disbursement of the amount of compensation to them, the Collector offered to
the petitioners only 18/73 shares of the total amount of compensation and 55/73 shares were offered to the tenants. The basis of the
aforementioned apportionment even though unwritten was, according to respondent No. 2 the circular No. 3 dated 26th August 1969 issued on
8th September 1969 (vide annexure 'C'). Before issuance of the circular annexure 'C' the relevant provision regarding apportionment was
contained in the circular in the form of instructions dated 12th August, 1965 published in the Government Gazette No 20 of 1965. Para No. 3 of
the aforementioned circular reads as under :
Apportionment in the case of holdings under protected tenants:
(i) In case of holdings under protected tenants the apportionment between the landlord and tenant shall respectively :
(a) Where the tenants pay one half of the produce or its equivalent in cash as rent be 90% and 10% ;
(b) Where the tenant pays 2/3rd of the produce or its equivalent in cash as rent be 85% and 15%.
(c) Where the tenant pays l/4th of the produce or its equivalent in cash as rent be 80% and 20% and
(d) Where the tenant pays only revenue at Parta Deh rates be 75% and 25%.
(ii) In all other cases where the rates of rent may be different the aforementioned percentage as laid down in subparts (I) will guide the calculation
of apportionment, etc. etc......
x x x x
(3) It is further averred that the draft award having been prepared and submitted by the Collector respondent No. 2 on 16869 the apportionment
had to be done according to the provisions contained in the above mentioned circular which was in force at the time of the draft award and was
superseded only by the circular of 1969. The apportionment as made in respect of the amount of compensation between the petitioners and the
respondents 3 to 6 according to the circular No. 69 of 1969 is illegal and without jurisdiction. The circular of 1969 apart from being inapplicable to
the case of the petitioners, is ultravires of the provisions of the Land Acquisition Act and amounts to an offensive piece of delegated legislation inter
alia on the following grounds:
(a) That Section 53 of the Land Acquisition Act conferring power on the Government to frame rules makes it obligatory on the Government to
make rules consistent with the principal Act and for the purpose of guidance of the officers in all matters connected with its enforcement and the
same are to be published in the Government Gazette. The aforesaid circular was never published in the Government Gazette, therefore omission on
the part of the Government to have the circular published in the Government Gazette render it wholly ineffective and unenforceable. The
apportionment of compensation between the landlords and the tenants in respect of the land acquired by the Collector, quantum of compensation
for the landlord and the tenants affected the substantive rights of the parties which could be done by the Legislature itself and not by an Executive
fiat. The scope of Section 53 therefore was not wide enough so as to include the power of creating substantive rights. The Section confers
unfettered powers on the Government without laying rational and guiding principle for the executive Government to exercise the powers. The
power, it is averred, is hit by Article 14 of the Indian Constitution. The circular is in the form of instructions and as such cannot have a legislative
affect so as to avoid the passing of the necessary legislation. The apportionment in the manner proposed by the Collector orally amounts to
violation of fundamental rights of the petitioners in regard to the immovable property in as much as the share of compensation offered to them can
hardly be said to be adequate compensation for the ownership rights which would stand extinguished on the completion of the Acquisition
proceedings. The petition is supported by an affidavit. Alongwith the petition the petitioners have filed Annexure 'A' copy of the final award,
Annexure 'B' apportionment statement for (he land in dispute and Annexure 'C' the impugned circular.
(4) The respondents filed their objections through Raizada Amar Chand Addl. Advocate General. The respondents have questioned the
maintainability of the petition on the ground that the petitioners did not persue the remedy available under Section 13 of the Jammu and Kashmir
Land Acquisition Act. It is, however, admitted that the land was acquired and award made after obtaining approval of the Revenue Minister. It is
conceded that the respondent No. 2 apportioned the compensation between different persons interested in accordance with the impugned circular.
The petitioners did not raise any objection at the time of filing their objections with regard to apportionment of compensation between the landlords
and tenants. The impugned circular has superseded and has replaced the earlier instructions contained in circular of 1965 relating to apportionment
of compensation. It is, however, admitted that the impugned circular was not published in the Government Gazette. About the impugned circular it
is stated that it contains only executive instructions issued by the respondent No 1 for guidance of collectors and therefore it is not necessary under
law to publish the same in the Government Gazette. The above circular is legally valid and binding upon respondent No. 2 inspite of the fact that it
was not published in the Government Gazette, Respondent No. 1 was fully competent to issue impugned circular. It is denied that Section 53 of
the Land Acquisition Act is hit by Article 14 of the Constitution of India It is denied that the circular in any way offends the provisions of the
Constitution. Later on additional objections were filed by the State to the effect that the impugned circular was published in the Government
Gazette on 24th Dec., 1970 (that is after the writ petition was admitted). By the above publication in the Government Gazette the impugned
circular has acquired the force of rule made under Section 53 of the Land Acquisition Act. A supplementary affidavit from S. Sohan Singh
Secretary to Government Revenue Department was also filed alongwith the additional objections.
(5) The case originally came up for hearing before my learned brother Jaswant Singh J. The points raised were that the Government was not
competent to issue executive instructions relating to apportionment of compensation payable for the land acquired under the provisions of Jammu
and Kashmir Land Acquisition Act amongst the persons interested in such land ; that the impugned circular was invalid and it not only affected the
rights of the parties but also the discretion of the Collector u/s 11 of the Act. The instructions contained in the impugned circular could not be
characterised as rules under Sec. 53 of the Land Acquisition Act as it had not been made after the previous publication.
(6) Considering all these matters that were raised before him, my learned Brother was of the opinion that these points were of great importance
and required authoritative pronouncement and therefore he referred the case to the Hon'ble Chief Justice who was pleased to refer this case to the
Full Bench for determination of these points and for disposal of the petition.
We have heard the learned counsel for the parties at great length.
(7) Appearing for the petitioners Mr. Thakur has submitted that the award was announced by the Collector on 251069, but the Collector omitted
to apportion to the amount of compensation between the landlords and the tenants i. e. the petitioners and respondents 3 to 6. The award could
not therefore be said to have been made in pursuance of Section II of the Land Acquisition Act as it was an incomplete document. An obligation
was cast under the Section on the Collector to apportion the amount of compensation amongst the interested persons. Nor was this notified to the
interested persons with the result that no reference regarding the dispute of apportionment could be made u/s 18 of the Land Acquisition Act to the
civil court. It was only after the passing of the award that the Collector when approached by the petitioners for the disbursement of the amount of
compensation offered to the petitioners only 18/73 share out of the total amount of compensation and he reserved 55/73 shares for the tenants.
The Collector informed the petitioners that his basis of the apportionment was the circular of 26th August, 1969 (Annexure 'C'). It is contended
that this Govt. circular has not force of law Even if it be assumed that this circular was issued by the Government in exercise of the powers vested
in it under section 53 of the Land Acquisition Act nevertheless this could not acquire the statutory force in as much as it was not published in the
Government Gazette and also it fettered the judicial discretion of the Collector. Attention is invited to an earlier circular of the Government dated
12865 which was published in the Government Gazette. It is submitted that it was most appropriate on the part of the Collector to have disbursed
the amount of compensation in accordance with the instructions laid down in this earlier circular which had acquired the force of rules under section
53 of the Jammu and Kashmir Land Acquisition Act. The manner in which the impugned circular has been issued and the way in which the
Collector has proceeded in the matter has adversely affected the proprietory rights of the petitioners. It is a case where the fundamental rights of
the petitioners have been violated Mr. Thakur has further submitted that the court may declare the impugned circular of 1969 (Annexure 'C' as
ultra vires and therefore liable to be quashed and the Collector also directed to pass a fresh award in the case in which the question relating to
apportionment of compensation amongst the parties could be decided in pursuance of Section 11 of the Land Acquisition Act and the rules made
there under.
(8) As against this Mr Amar Chand counsel for the respondents has questioned the maintainability of the petition on the ground that the petitioners
remedy in the matter was not by way of writ but by way of asking the Collector to make a reference to the civil court under section 18 of the
Jammu and Kashmir Land Acquisition Act. As the petitioners have failed to avail of this remedy in time, therefore the present petition cannot lie. It
is further submitted that the petitioners did not object to the apportionment of compensation at the time of filing of the objections when the question
of apportionment of compensation between the persons interested was determined in accordance with the instructions laid down in the impugned
circular. The position is not, however, denied that the impugned circular was not published in the Government Gazette and therefore it has not
acquired the force of a rule, but notwithstanding this the circular is valid and binding on the Collector as in this document executive instructions have
been laid down by the Government for the guidance of Collector. Even this circular was later on published and now it would be deemed to be a
rule on the subject in pursuance of the provision of Section 53 of the Land Acquisition Act. The circular does not, it is urged, of find any of the
provisions of the Constitution.
(9) I have given my thoughtful consideration to the points raised at the bar. It is true that the Collector while making the award has failed to decide
the question of apportionment of compensation between the landlords and the tenants. Under Section 11 of the Land Acquisition Act it is the
statutory responsibility of the Collector to proceed to enquire into the respective merits of the claims of the interested persons regarding
compensation. While making the award under this Section the Collector has to indicate therein:
(1) The true area of the land acquired.
(2) The compensation which in his opinion would be allowed for the land, and
(3) The apportionment of the said compensation among all the persons known or believed to be interested in the land of whose claims he has
information whether or not they have respectively appeared before him.
The last requirement contained in para 3. it seems, has not been fulfilled by the Collector, The draft award was prepared and sent to the Revenue
Minister for his sanction on 1681969. After the sanction was accorded it was announced on 151069 The impugned circular No. 3 though bearing
the date of 26th August, 1969 was in fact issued on 8969 From this it is clear that when the draft award was prepared and sent to the Revenue
Deptt. on 16869 at that time the impugned circular had not seen the light of the day. If the Collector had followed the provisions of Section 11 in
time while making the award and had made apportionment of compensation he would have necessarily followed the instructions as laid down in the
earlier circular of 1965, but because of his omission to do so he had later on to take resort to and seek guidance from the impugned circular of
1969. The statement of compensation appended with the case file shows that no apportionment was made by the Collector between the landlords
and the tenants when he finally announced the award ( vide annexures 'A' and 'B* ) Section 18 of the Land Acquisition Act gave the petitioner a
right to ask the Collector to refer the dispute regarding apportionment of compensation to the Civil Court. This of course the petitioners could have
done within the prescribed time of six weeks as laid down in Section 18. That time had already expired. It is to be seen now as to what course of
action is open to the petitioners and to the Collector in the context of the matter. This also brings us to the consideration of the question as to what
is the nature and legal effect of the impugned circular and how it affects the powers of the Collector.
(10) In my opinion it must be laid down that the impugned circular has got no statutory force and the same is not binding on the Collector. Under
Section 53 of the Land Acquisition Act the Government has got power to make rules consistent with the Act for the guidance of the officers in all
matters connected with its enforcement and it has got power to make, alter or add to the rules, but all such rules require to be published in the
Govt. Gazette in order to acquire the force of law In the instant case it is conceded that at the time when the award was made or even the
apportionment of compensation was made the impugned circular had not acquired the force of law in as much as it had not been published in the
Gazette. Therefore when the circular has no statutory force, the question is are the powers and the judicial discretion of the Collector fettered by
the executive instructions? In my opinion they are not. The circular has got no legal or binding force on the Collector especially in a case where
right to property is involved. It is true that the impugned circular was later on published on 24th of December 1970 but that will not improve the
position as the circular had not acquired the force of rule at the time when the award was made and when money was offered to the petitioners.
The argument of Mr. Amar Chand that although the impugned circular was not published in the Govt. Gazette yet it was valid and binding on
Collectors and could be pressed into service by them because it contained executive instructions for the guidance of Collectors which the State
Government was competent to lay down does not appeal to me. I am not able to subscribe to this view because the fundamental rights of a citizen
cannot be abridged by an executive fiat. In this context it is useful to reproduce the observations made by SHAH J (as His Lordship then was) in
A.I.R. 1967 SC 1170 on page 1173.
We (in India) have adopted under the Constitution not the continental system but the British system under which the rule of law prevails. Every
Act done by the Govt. or its officers must if it is to operate to the prejudice of any person be supported by some legislative authority.''
(11) The above observations were mad? after examine the provisions of Art. 162 of the Constitution of India which provides that subject to the
provisions of the Constitution the executive power of the State shall extend to the matters with respect to which the legislature of the State has
power to make laws His Lordship observed that the observations of Mukerjee C. J. in A. I. R. 1955 SC 549, which were relied upon by the
Counsel for the State in that case had restricted application. The observations made to the effect that powers of the State Executive did extend to
matters upon which the State Legislature was competent to legislate and were not confined to matters over which legislation had been passed
already were not to be construed as laying down a broad proposition of law. Those observations had to be read in the light of the facts of that
case. The executive action in that case (1955 SC 549) which was upheld was, it was true, not supported by any legislation but did not operate to
the prejudice of any person'. Their lordships in 1967 SC 1170 were clearly of the view that viewed in the light of those facts the observations
made in AJR 1955 SC (Supra) did not support the contention that the State or its officers might in exercise of executive authority infringe the rights
of a citizen merely because the legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. In
the instant case the impugned circular does operate to the prejudice of the petitioners and therefore the executive action or direction given in the
unpublished circular cannot be upheld.
(12) As regards the course of action to be followed by the petitioners or the Collector in the case Section 30 of the Land Acquisition Act is clear.
That section is wide enough to cover the case of the petitioners. Section 30 provides that when the amount of compensation has been settled under
section 11, if any dispute arises as to the apportionment of the same part thereof, or as to the person to whom the same or any part thereof is
payable the Collector may refer such dispute for the decision of the court.
(13) In this connection it is useful to reproduce the following passage from AIR 1966 SC 237:
''There are two provisions, Ss 18 (1) and 30 of the Act which invest the Collector with powers to refer to the Court a dispute as to apportionment
of compensation or as to the persons to whom it is payable. The Collector is enjoined under Section 18 (1) to refer a dispute relating to
apportionment, or title to receive compensation, on the application within the time prescribed by SubSec. (2) of that section of a person interested
who has not accepted the award. The Collector is authorised under Section 30 to refer to the court after compensation is settled under Sec. 11
any dispute relating to apportionment of the same or any part thereof or relating to the persons to whom the same or any part thereof is payable. A
person who is shown in that part of the award which relates to apportionment of compensation and who is present either personally or through a
representative, or on whom a notice is served under Subsec. 12, if he does not accept the award, must apply to the Collector within the time
prescribed under Sub s. (2) of Sec. 18 to refer the matter to the court But a person who has not appeared in the acquisition proceeding before the
Collector, if he is not served with notice of the filing, may raise a dispute relating to apportionment or to the person* to whom it is payable and
apply to the court for a reference under Sec. 30 for the determination of his right to compensation which may have existed before the award or
which may have devolved upon him since the award. Under Sec. 18 an application made to the Collector has to be made within period prescribed
by Cl. (b) of Subsec (2) of S. 18 But no such period is prescribed under Sec. 30, Again whereas under Sec. 18 the Collector is bound to make a
reference on a petition filed by a person interested, the Collector is, under Sec. 30, not enjoined to make a reference, he may relegate the person
raising the dispute to agitate the same in a suit and pay the compensation in the manner declared by his award The powers which are exercised by
the Collector under S. 18 (1) and under Sec. 30 are distinct and may be invoked in contingencies which do not over lap.
X X X X
(14) The Collector is not authorised finally to decide the conflicting right of the persons interested in the amount of compensation. His primary
concern is with the acquisition of the land. It is true that while determining the amount of compensation which may be offered, he has to apportion
the amount of compensation between the persons known or believed to be interested in the land, or whom, or of whose claim, he has information,
whether they have appeared before him or not. But the apportionment by him does not determine finally the rights of the persons interested in the
amount of compensation ; as award is only conclusive between the Collector ( and the persons interested and not among the persons interested.
The Collector has no power to adjudicate finally upon the title to compensation that dispute has to be decided either in a reference under Section
18 or under Section 30 or in a separate suit. Consequently the payments of compensation under Section 31 to the persons declared by the award
to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), leaving it open to the
claimant to compensation to agitate his right, though devolved on him after the award in a reference under Section 30 or by a separate suit.''
(15) Again in AIR 1926 Lahore 321 where the Collector had not adjudicated upon the claims of different claimants in respect of apportionment
before the award was made but he adjudicated the dispute after the award was made it was held that Collector's adjudication was without
jurisdiction and it was further held that the application presented before the Collector for adjudication of the respective claims which were made
before the award was filed, should have been referred to the civil court under Section 30 of the Land Acquisition Act.
(16) Again in AIR 1941 Lah. 268, a Division Bench of the Lahore High Court opined :
''The three main points of distinction between Sections 18 and 30 are that Section 30 leaves the Collector with a power of discretion in the matter
which he does not possess under S. 18 j that the subject matter of reference under Section 30 is limited to cases in which Government is not
directly interested and that Section 18 alone contains a definite provision for limitation. No specific time is provided within which a reference under
Section 30 should be made when the question is purely one of title, it is open to the Collector to forward the reference whether the period has
expired or not.
(17) When a statute confers an unqualified discretion upon some authority, this is usually interpreted as meaning that the authority may act either
entirely on his own motion or upon being moved by some interested party and his powers are regarded as limited if this is required by some
necessary implication. No such implication arises in Section 30, Section 30 simply means that the Collector must refer a question of title if required
to do some by an application received within the prescribed time, but if an application is received after that time, he then has the option of referring
the matter to District Judge or refusing to do so and if the Collector while forwarding the reference himself mentions that the application is received
after the prescribed time, it is to be presumed that he is intentionally making a reference under Section 30.
(18) The propositions enunciated above would make it clear that the Collector has got power under Section 30 of the Land Acquisition Act to
refer the dispute of apportionment to the Civil court and his power to do so is unfettered by any statutory inhibition.
(19) The result is that the petition is allowed and the order of the Collector apportioning the amount of compensation between the petitioners and
the tenants is hereby quashed. It will be open to the petitioners to move the Collector under Sec. 30 of the Land Acquisition Act for referring the
matter relating to the apportionment of compensation to the Civil court. Having regard to the fact that the Collector, as found by us, was guided by
a legally erroneous consideration in passing the order of apportionment (i. e. by relying on the circular of 1969 which has been held by us to be
illegal) and also having regard to the fact that the Collector did not pass an order of apportionment as required by Section 11 of the Act at the time
when he gave the award, this is a fit case in which the Collector would seriously consider the desirability of making a reference to a civil court after
he makes a fresh apportionment order, if and when he is moved in the matter by the petitioners u/s 30 of the Act. Pending final decision by the
Collector under Sec. 30 of the Act, he is restrained from disbursing the amount of compensation to any of the parties.