Union of India and Others vs Sis Ram

D. K. Kapur, J.

(1) This is a Revision under the CPC against the decision of the Additional District Judge, Delhi, dated 24th August, 1971 passed during the hearing of a reference under the Land Acquisition Act, 1894, whereby the application for a reference u/s 18 of of the Act was permitted to be amend- aj. The facts of the ca''e are a little unusual because the original reference petition Bioved by the respondent Sis Ram to the Land Acquisition Collector had mentioned in the application field No. 38/1 as one of the areas involved in the acquisition, la the reference, made u/s 19 of the Act, the Land Acquisition Collector stated that field No. 38/1 was sot included in the acquisition and. Therefore, no refe- rence concerning the same could be made. While staling the situation and extent of the land involved in the reference u/s 19(1) of the Act, the Collector stated in a note that this land was not being included in the reference as it was not acquired. The reference itself was made by the Collector some time in 1969 and the application u/s 18 praying for a reference t^ the Land Acquisition court was made to the Land Acquisition Collector on 24th December, 1968.

(2) Before the Additional District Judge, the claimant-responclent moved an application under Order 6, Rule 17 of the CPC for an amendment of the reference application on 11th August, 1971, i. e., nearly three years after the original application. In this application, it was stated that the petitioner had received a notice u/s 9 of the Act concerning the acquisition in which the land in question had been described as Khasra No. 38/1 and no notice had been served on the claimant with respect to KhasraNo. 38/2, and hence the claimant had been denied an opportunity to seek a reference with respect to Khasra No. 38/2. It was, Therefore, prayed that the reference petition should be allowed to be amended by subst- ituting Khasra No. 38/2 in place of Khaira No. 38/1, the mistake in the reference petition having occurred due to an incorrect number having been mentioned in the notice issued to the claimant u/s 9 of the Act by the Lard Acquisition Collector. The power of the Court to make such an amendment was challenged before the Additional District Judge, however, the amendment has been allowed on pay- ment of Rs. 10.00 as costs.

(3) The order allowing the amendment has been challenged by the Union of India on the the ground that the reference cannot be changed by the Land Acquisition Court which is bound by the terms of the reference made u/s 19 of the Act This proposition is disputed by the respondent and it is also submitted that costs have already been accepted and hence the petitioner is disentitled to challenge the amendment allowed.

(4) I have no doubt that the Court is bound by the reference which is mide by the Collestor. However, the Collector himself h.is no authority to refuse to nailts a reference in accordance with the application u/s 18 of the Act moved by the clumant. It was held by toe Supreme Court in Dr. G. H. Gra''lt v. The State of Bihar^, iat page 243 ai tollJWS :-

" AGAIN u/s Is the Collector i8 bound to make a reference on a petition filed by a person interested".

There is no doubt that the Collector is a mere functionary is the making of the reference. He is bound to make a reference and he can- not make any changes io the claim put forward by the cl ii n int before him. The difficulty which has arisen in this case is that there was a mistake in the notice served on the claimant which led him to seek a reference regarding the wrong area- Having subsequently learnt that the actual field acquired was No. 98/2 and not 38/1, it is not surprising that the claimant has asked for an amendment in the reference appH- catioii. There are two ways of dealing with this matter. Bither it mast be held that the a-ward is invalid qua this Khasra or that the amaod- ment should fae allowed so that the claimant is enabled to get the de- lerminalionofthiBcota^aasation payable with respect to this area by the Court. I do not see any reason why an amendment to that appli- cation under gection 18 of the Act cannot -be allowed by the Additional District Judge. u/s 53 of the Act, the Code of Civil Proce- dure is applicable to proceedings taken before the Court, if the Code is not inconsistent with the Act. The Code includes Order 6, Rule 1-7. For the purposes of proceedings under the Land Acquisition Act, Sec- corporation 18 is an enabling Section entitling the claimant to seek his remedy before the Court by requiring the Collector to mike a reference. T(ie Collector is bound to make a reference. u/s 19 as held by the Supreme Court. If there is a mistake in the application, it can bs remedied by an amendment. Obviously, if the mistake is dus to the mistake of the Collector himself in issuing the notice, then the mistake can be remedied even at a late stage. As the proceedings are now be- fore the Court, the reference petition can only be amanded by an appli- cation made to the Court. I, Therefore, cannot accept the contention ef the petitioner that the reference petition cannot be amended by the Court.

(5) I have been referred to an un reported decision of this Court. in which it was held that the Court did not have the power to amend a reference. The facts of that case are not set out in extenso is the judgment and it may be that the amendment was disallowed on the ground that on the facts of that case the amendment could not be allowed and was without jurisdiction. In the present case, it is the reference application which has been allowed io be amended which is quite different from the reference itself When the application for reference is allowed to be amended, the amendment dates back to the date of the original application and it is fur the Collector now to make a reference in accordance with the amended application. It would thus be necessary that the case bs placed before the Colhetor for mak- ing an amended reference in accordance wilh the amended application.

(6) I have also been referred to the judgment in Dr. Sewak Panhad v. panchayat Raipur Rani^, where it has been held that when costs have been accepted a party is precluded from challenging an order. The said judgment is based oa a series of reported judgement including a judgment of the Supreme Court basej on title principle that a party cannot approbate and reprobate. It has been uniformlyheld that if a party takes advantage of an order i.e., costs, it is precluded from challenging the order. I, Therefore, hold that sven on lUis ground the pail'' tioner is not entitled to challenge the order sought to be revised because cosis have already been paid to the petitioner in accordance with the impugned order.

(7) Thus, I uphold the order sought to be revised on both these grounds. I also make it clear that the amended reference application does not amend the reference itself and such an amendment has to be made by the Collector himself u/s 19 of the Act. It will be better if the amended application is placed before the Collector for making a proper reference I, Therefore, dismiss this Revision Petition with costs. Counsel''s fee Rs. 50/''-.