The Land Acquisition Officer and Another vs Narayanan

A.R. Lakshmanan, J.—The Land Acquisition Officer, Special Tahsildar, National Highway, Kannur and the District Collector, Kannur are the Appellants in this appeal. The Respondent filed O.P. 4423 of 1997 to quash the original of Exts. P-3, P-4 and P-6 issued by the Appellants and for a mandamus directing the first Appellant to refer the claim of the Respondent under Ext. P-2 for reference to the Court u/s 18 of the Land Acquisition Act, 1894 (for short ''the Act''). Compensation amount was fixed by the authorities for the property at Rs. 28,299. Respondent was directed to appear before the Land Acquisition Officer on 22nd November, 1995. Ext. P-1 is the notice of award issued by the first Appellant dated 1st November 1995. According to the Respondent, Ext. P-1 was served on him on 17th November 1995 and as soon as the said notice was received, he approached his lawyer and as per instructions given by him, a lawyer notice detailing the objections of the Respondent was issued. It was further requested that the matter may be referred to the Land Acquisition Court to enable the Respondent to claim enhanced compensation. Ext. P-2 is the lawyer notice issued by the Respondent through his Counsel. Under Ext.P-2, it has been specifically stated by the Counsel for the Respondent that the Respondent has received the award amount under protest and since the property is situated very close to the National Highway and has other valuable improvements, etc., the Respondent will be entitle to a higher compensation. Respondent''s Counsel, therefore, called upon the first Appellant to refer the matter to the Sub Court to enable the Respondent to claim enhanced compensation for the property acquired. Under Ext. P-3, the first Appellant informed the Counsel for the Respondent that the notice sent by him is not entertainable as an application for reference to the Court u/s 18 of the Act since the person interested in the property, namely, the Respondent has to make a written application for referring the matter to the Court as provided in the Section. Therefore, the first Appellant advised the Counsel for the Respondent to file a fresh application for reference to the Court. In paragraph 3 of Ext. P-4, the first Appellant has stated as follows:

The notice of award issued in this case on 1st November 1995 was got served on Sri. Ponniadath Narayanan, Power of Attorney Holder of Chakkadath Ramakrishnan on 17th November1 1995 directly, as stated already. Any application for reference to Court u/s 18 of the L.A. Act in the case should have been filed within 6 weeks from the said date (i.e. 17th November 1995) of receipt of the notice of award issued u/s 12 of the L.A. Act. The application for reference to the Court u/s 18 of the Act, mentioned (2) under reference, was received from Sri. Ponniodath Narayanan, Power of Attorney Holder of Sri. Chakkadath Ramakrishnan only on 12th January 1996. One of the conditions precedent to make a valid reference to the Court is that the application u/s 18(1) shall be in writing and made within the time stipulated under the provisos to Sub-section (2) of Section 18 of the L.A. Act. The application for reference to the Court received on 12th January 1996 in this case is consequently time barred and not entertainable as per the provisions of the Land Acquisition Act, 1894.

Thus, it is seen that the subsequent application made by the party himself (the Respondent) which was received on 12th January 1996 by the first Appellant was rejected on the ground that the same has not been filed within the time stipulated under the proviso to Sub-section (2) to Section 18 of the Act. Ext. P-5 dated 13th December 1996 is the representation made by the Counsel for the Respondent to the Appellants herein wherein it is stated that the claim lodged through the advocate would suffice the requirement to refer the matter to the Court and that it is not mandatory that the claim should be in formal terms. The decision rendered by this Court in State of Kerala Vs. C.R. Viran, was relied on for the proposition that a claim for reference may be made in the form of a letter or intimation. In the light of the above facts, Counsel for the Respondent brought to the notice of the authorities that they are legally bound to refer the claim to the Court. By Ext. P-6, the second Appellant, by his proceedings dated 21st December 1996, again rejected the claim of the Respondent as time barred and not entertainable as per the provisions of the Act. Therefore, the Respondent filed the Original Petition with the prayers mentioned above, which was allowed by the learned Single Judge.

Section 18 of the Act, which deals with reference to Court and the procedure thereon, reads thus:

Reference to Court.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court 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 the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made,�

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector''s award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector tinder Section 12, Sub-section (2), or within six months from the date of the Collector''s award, whichever period shall first expire.

Thus, Section 18(1) provides that whether the objection be to (i) the measurement of the land, (ii) the amount of the compensation, (iii) the persons to whom it is payable, or (iv) the apportionment of the compensation among the persons interested, written application may be made for a reference to the Court and Sub-section (2) of Section 18 provides that the application shall state the grounds on which objection is taken. Any person interested who has not accepted the Collector''s award may apply in writing that the matter be referred to the Court for determination. The Section says that a person interested must within six months from the date of the Collector''s award apply for a reference to Court even though he has not appeared or been represented before the Collector''s proceedings. Nor does the fact that the money has been paid away by the Collector prevent a reference being made.

To demand a reference u/s 18 of the Act, a written application is mandatory and the demand for a reference in such application should be clear. The existence of an award is an essential first requisite to confer the jurisdiction on the Collector to make a reference. There is no provision in the Act authorising the aggrieved claimant to approach directly the civil Court of original jurisdiction for a reference u/s 18 of the Act. The aggrieved party is to apply to the Land Acquisition Officer or the Collector inviting him to make a reference. But, before the Collector can make a reference, he must be satisfied that the application is by a person interested, that such person has not accepted the award and that the dispute raised by the person is with regard to the amount of compensation. In the instant case, the Collector has refused to make a reference on the ground that the applicant has not applied in writing, but has applied through his lawyer and, therefore, the said application for reference is not competent. As already stated, a reference can be invited only by a person interested. A person interested is one who is directly or indirectly interested in the title of the land or in the amount of compensation, the person to whom it is payable of the apportionment of compensation. In our opinion, "any person interested" appearing in Section 18 has to be given a plain and natural meaning, namely, a person who had an interest in the land. In this case, a person interested has invited the reference through his attorney and, therefore, the said attorney, on instructions from his client, is competent to invite a reference u/s 18 of the Act and the act done by the said attorney shall be construed as an act of the person interested himself.

As already noticed, a reference to Section 18 would indicate that a written application against an award claiming reference for enhancement of compensation is the corner-stone of the claim. Here, a written legal notice was issued by the attorney on instruction from the person interested claiming a reference for enhancement of compensation. Since there is a written application inviting reference through an attorney on behalf of the person interested being on the record, the Court can proceed u/s 18 and decide the same on merits. In cases like this, the Collector has first to see if the claimant has accepted the award and if the reference is in time and if the person interested has not protested against the award but receives the compensation under oral protest, leaves the Collector no option but to satisfy himself if the party accepts or refuses to accept the awards. In this case, the land owner has accepted the award under protest and has also invited the reference within time and under such circumstances, the Collector cannot reject the application because it has been made through a lawyer. In our opinion, if the conditions stipulated u/s 18 are fulfilled, the Land Acquisition Officer/Collector is bound to make a reference. He cannot come to his own conclusion that the person seeking reference is not the person interested and refuse to make the reference. When there is a proper application u/s 18(1), it is obligatory on the Land Acquisition Officer to make a reference and any refusal by him will be illegal. In other words, if an application for reference u/s 18(1) is made by a person entitled to make such application, the Collector has no option in the matter, but to refer it to the Court. It is incumbent on the Collector to make a reference to the Court when a proper petition is presented in that behalf. The Land Acquisition Officer will certainly be exceeding his powers in declining to make a reference to the Court on the ground that the person interested did not prefer his claim within the time stipulated though the fact remains otherwise. In The Huqdars of Peria Pallivasal and Others Vs. Revenue Divisional Officer, , the Madras High Court has held that when the Land Acquisition Officer acts arbitrarily in refusing to make reference u/s 18, in appropriate case, a Writ of Mandamus can be issued.

As already noticed, the petition submitted u/s 18 by the Respondent through his lawyer for reference was rejected as not entertainable as an application for reference to the Court.

Decisions have laid down that an advocate in India possesses the same rights as a barrister in England. An advocate in India combines in himself the capacities of a barrister and solicitor. In AIR 1930 158 (Privy Council) , the Privy Council, while deciding the validity of an agreement to compromise concluded by a legal advisor, held that an agreement to compromise a suit must be, established by general principles which govern the formation of contracts, though there are special rules governing its enforcement by the Courts which arise out of its intrinsic nature. If the agreement purports to be concluded on behalf of one or both the parties by their respective legal advisers, the first two questions that arise, as on the formation of any contracts by agents, are (1) Had the agent, the actual authority of his principal, express or implied to conclude the contract? (2) If no actual authority, had he ostensible authority so as to bind his principal against the other party, relying on ostensible authority? The Privy Council further held thus:

An advocate of the High Court has, when briefed on behalf of a party in a subordinate Court, the implied authority of his client to settle the suit. He must be treated as though briefed on the trial of the suit, though he may be engaged to press an interlocutory application. The power to compromise a suit is inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocate of England, Scotland and Ireland, apply in equal measure to India.

The implied authority of Counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate. Secondly, the implied authority can always be countermanded by the express directions of the client. No advocate has actual authority to settle a case against the express instructions of his client. If he considers such express instructions contrary to the interests of his client, his remedy is to return his brief.

In S.P.M. Muthiah Chetti and Others Vs. Muthu K.R.A.R. Karuppan Chetti and Others, Counsel''s powers were enunciated by the Madras High Court thus:

He has authority to make admission in Court on matters of fact but he has no such authority on questions of law so to bind his client.

He has authority to confer judgment, withdraw or compromise or refer to arbitration if it is advantageous or beneficial to his client. This he can do even in the absence of express authority from his client.

He cannot agree to compromise or refer to arbitration matters outside the scope of the suit, without express consent of his client.

Where Counsel makes an admission as to collateral matter, or gives up a doubtful claim which is not the subject-matter of suit, if only it is beneficial to client, a presumption can be drawn that he acted on client''s instructions.

In matters of compromise or arbitration that are outside the scope of suit, it is a question of fact whether Counsel acted on instructions. The Court can determine this on probabilities and circumstances even in the absence of direct evidence on the point.

Where client instructs Counsel not to compromise or arbitrate or make admissions, Counsel can claim no implied power to do so.

Thus, it is seen that the action taken by the Counsel and assented to by his client/"person interested" is binding upon the client/"interested person" since it is expressly authorised and ratified by the client. Hence, we are of the opinion, that the notice sent through the lawyer on behalf of the person interested is valid in law. In the instant case, the Respondent has specifically authorised his Counsel to make an application u/s 18 and accordingly the said application was made within the time stipulated under the provisions of the Act. It is not in dispute that the Respondent''s lawyer has within ''the time stipulated'' made an application u/s 18 to refer the matter to the Court and that the said application was addressed to the first Appellant on 20th December 1995. It is, therefore, clear that the Respondent had submitted his application through his Counsel to the Land Acquisition Officer and made it clear that the matter may be referred to the Court for adjudication. It is also pertinent to point out that the claim made through Ext. P-2 was within the time prescribed under the Act. It is further to be noticed that the Respondent has accepted the amount of Rs. 28,299 under protest. The Supreme Court in Ashwani Kumar Dhingra Vs. State of Punjab, has laid down that when the compensation awarded in pursuance of the award is accepted under protest, then the right to seek reference is not affected. The first Appellant in pursuance of receipt of Ext. P-2, instead of referring the matter to the civil Court, issued Ext. P-3 stating that the notice submitted by the Respondent is not entertainable as the Respondent has not made the application in writing for reference.

This Court in State of Kerala Vs. C.R. Viran, has clearly held that a claim need not be in formal terms, it could be in the form of a letter or intimation. In the instant case, on receipt of Ext. P-5 representation made by the Counsel for the Respondent to the Appellants, the second Appellant sent a reply on 21st December 1996 stating that the application for reference is time barred and hence not entertainable.

Mr. Alexander Thomas, learned Government Pleader, submitted that the application u/s 18 for reference should be filed as stipulated in the said section and since there is no written application by the Respondent for reference, the lawyer notice under Ext. P-2 cannot be treated as a written application of the Respondent. He would further submit that there was no authorisation or vakalath accompanied by the notice to assume that the lawyer was authorised by the Respondent. We are unable to accept both the above contentions. As already stated, the lawyer is an agent of his client and any representation or action taken by him is binding on the party and will have the same effect as if the said act is done by the party himself. It is seen from Ext. P-2 that the lawyer has issued the said representation on instructions from the Respondent himself. Therefore, Ext. P-2 is to be treated as a notice sent by the Respondent himself. It is not in dispute that the Respondent had lodged his claim at the first instance as per Ext. P-2 which was well within the statutory period of six weeks as per the provisions of Section 18 of the Act. Therefore, when a claim is made within the prescribed time through ones Counsel, it cannot be rejected by saying that the claim is time barred. We are, therefore, of the opinion that the Appellants ought to have noted that a valid legal claim having been lodged as per Ext. P-2 within the statutory period, the same should have been entertained and a reference should have been made to the civil Court. The action of the Appellants in not entertaining the claim made through Ext. P-2 is illegal and arbitrary and against the provisions of the Act.

For the foregoing reasons, we are of the opinion that the Writ Appeal filed by the State is liable to be rejected and accordingly, we dismiss the Writ Appeal. We direct the Appellants to refer the matter u/s 18 of the Act to the Land Acquisition Court concerned immediately.