Skip to content


Mrs. Ka Kriksibon Kharkongor and anr. Vs. the Deputy Commissioner and Collector, Khasi Hills and anr. - Court Judgment

LegalCrystal Citation
Subject;Property;Criminal
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 136 of 1979
Judge
ActsLand Acquisition Act, 1894 - Sections 18 and 30; Constitution of India - Articles 226 and 227; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantMrs. Ka Kriksibon Kharkongor and anr.
RespondentThe Deputy Commissioner and Collector, Khasi Hills and anr.
Appellant AdvocateS.K. Homchoudhary, Adv.
Respondent AdvocateGovt. Adv., Meghalaya and M.S. Jahrin, Advs.
DispositionPetition allowed
Prior history
K.N. Saikia, J.
1. This application under Section 115 of the C. P. C. and/or Article 227 of the Constitution of India impugns the order of the Deputy Commissioner, hereinafter referred to as 'the Collector', Khasi Hills, Shillong rejecting the petitioner's application in Land Acquisition case No. L. 14/5/51 of 1965 for reference under Section 30 of the Land Acquisition Act, 1894, hereinafter called 'the Act', on the ground of limitation.
2. The petitioner -- Ka Kriksibon Khar-kongor @ Mrs. R.
Excerpt:
- - medhi's contention that the petitioner is not a person interested has also to be rejected being contrary to the principles of natural justice, equity and good conscience and in view of the definition of 'person interested' in section 3(b) of the act to include all persons claiming an interest in compensation to be made on account of acquisition under the act. if the averments made by the petitioner are found to be correct, she may as well be held to be a person interested......and the alternative application under article 227 is therefore to be disposed of. under that article the high court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction except over any court or tribunal constituted by or under the law relating to the armed forces. the collector, acting under section 30 of the act is not excepted. in the instant case the error of law as to limitation is apparent, there being no limitation prescribed under section 30 of the act. in mrs. khorshed shapoor v. assistant collector of estate duty, air 1980 sc 775 it was held that on acquisition of land the claimant has only one right, which is to receive compensation for the lands at their market value on the date of the relevant.....
Judgment:

K.N. Saikia, J.

1. This application under Section 115 of the C. P. C. and/or Article 227 of the Constitution of India impugns the order of the Deputy Commissioner, hereinafter referred to as 'the Collector', Khasi Hills, Shillong rejecting the petitioner's application in Land Acquisition case No. L. 14/5/51 of 1965 for reference under Section 30 of the Land Acquisition Act, 1894, hereinafter called 'the Act', on the ground of limitation.

2. The petitioner -- Ka Kriksibon Khar-kongor @ Mrs. R. E. Haffield states to have lived together in public as husband and wife so as to constitute a valid marriage under Khasi customary law, with late R. E. Haffield till the lalter's death in the year 1953 in Valley View Bungalow at Upper Shillong, whereafter she has been living therein; and by Khasi customary law, is the sole heir of all the movable and immovable properties of her late husband, including the 93 acres of land of Spread Eagle Falls, commonly known as Umkaliar, acquired in the case for defence purposes. She further states that she was unaware of the acquisition and did not receive any notice issued under Section 4 of the Act, the declaration under Section 6 of the Act and the notice under Section 9 of the Act; and consequently, she could not file any objection in the acquisition proceedings. She happened to know about the proceedings from Mr. A. S. Khongphai and Ka Dallis Nora Rumnong only when they filed claim application for compensation of the land and the Collector passed award in favour of the former on 8-2-1974 awarding Rupees 25,48,429.92 p. The petitioner also states that Mr. A. S. Khongphai also has, in collusion with the brother of her late husband obtained Letters of Administration, whereto she filed an application for revocation under Section 263 of the Indian Succession Act

3. The petitioner filed an application under Section 30 of the Act on 12-9-1977 stating her case and praying for reference, but received no response. Another similar application dated 30-11-1977 under the same section was submitted praying for reference to allow her claim to compensation on the basis of her succession to the estate of her late husband.

4. On 1-12-1977 the Collector in his order observed--

'prima facie if the contention of the aggrieved party is correct, the case in hand is a fit one for action under Section 30 of the Act However in the interest of justice let the opposite party show as to why the case should not be entertained as such.'

He fixed 17-4-1978 for appearance and argument of both parties. He was transferred thereafter and on 10-7-1979 his successor passed the impugned order holding that the Notification under Section 4 of the Act was published on 10-10-1969, the declaration under Section 6 was published on 10-3-1971 and the award in favour of Shri A. S. Khongphai under Section 11 was given on 8-2-1974, while the petitioner filed her objection under Section 9 only on 12-9-1977 followed by another petition on 30-11-1977. It may be observed that both the applications dated 12-9-1977 and 30-11-1977 were not objections under Section 9 but explicitly applications for reference under Section 30 and the learned Collector was in error in this regard. He also did not accept her plea of ignorance of the doings of Shri Khongphai and consequently rejected the petitions as barred by limitation.

5. Mr. S. K. Homchoudhary, learned counsel for the petitioner submits, inter alia, that (i) though the Collector fixed 17-4-1978 for appearance and arguments of both parties, no hearing took place on that day or any subsequent date and the impugned order dated 10-7-1979 was passed behind the back of the petitioner in violation of the principles of natural justice;

(ii) that the Collector erred in holding that the applications were barred by limitation which is contrary to the provisions of Section 30 of the Act and the rulings in AIR 1966 SC 237 and AIR 1977 Gau 47.

6. Mr. S. N. Medhi, the learned counsel for the opposite party No. 2 contends, (i) that neither an application under Section 115, C. P. C. nor an application under Article 227 of me Constitution is maintainable against the impugned order; and (ii) To file an application under Section 30 the petitioner must be a person interested; but in the instant case she was not, and she never participated in the proceeding at any earlier stage.

7. The questions for judicial determination are, (1) whether on facts and in the circumstances of the case and without hearing the petitioner the Collector erred in dismissing the two petitions for reference as barred by limitation (2) whether this application is maintainable ?

8. The submission that no hearing was given to the petitioner white passing the impugned order is apparent from the order itself, namely, that the case records were put up to him on call. If that he so, there may have been violation of the principles of natural justice. The Collector while deciding whether or not to make a reference is a quasi-judicial authority. The impugned order further shows that the Collector disabled him-self from arriving at a correct decision by erroneously treating the applications dated 12-9-1977 and 30-11-1977, which were under Section 30 of the Act, as objections under Section 9 of the Act, which those were not. The Collector also erred in implying a period of limitation in that section.

9. Section 30 of the Act reads:--

'30. Dispute as to apportionment.-- When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.'

10. Thus this section contemplates two types of cases, namely, (a) dispute regarding apportionment of compensation; and (b) the person to whom compensation is payable.

The petitioner having laid a claim to the entire compensation, her case is covered by (b) and the reference would be proper. The section does not provide fox any specific period within which such a reference has to be made and consequently references under the section are not subject to limitation and the Collector may make them at any time. The Collector erred in holding to the contrary.

11. In the section itself there is no bar to a new person not previously appearing before the Collector to apply for any reference. There is also nothing in this section to limit the dispute between the persons inter se to whom compensation is payable under the award. Considering the whole scheme of the Act and the definition of 'person interested', it appears that a reference under Section 30 can be made by the Collector if a dispute is raised by any person other than who have been mentioned as persons interested in the award by the Collector. In Dr. G. H. Grant v. State of Bihar, AIR 1966 SC 237, it was ruled that there are two provisions, Section 18(1) and 30, which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable. Section 30 authorised, the Collector to refer to the Court after compensation is settled under Section 11, any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under Sub-section (2) of Section 12, if he does not acept the award, apply to the Collector within the time prescribed under Section 18(2) to refer the matter to the Court. But a person who has not appeared in the acquisition proceeding before the Collector may, if he is not served with notice of the filing, raise a dispute as to apportionment or as to the persons to whom it is payable and apply to the Court for a reference under Section 30, for determination of his right to compensation which may have existed before the award or which may have devolved upon him since the award. Whereas under Section 18 an application made to the Collector must be made within the period prescribed by subsection (2), Clause (b), there is no such period prescribed under Section 30 and references thereunder will not be subject to limitation. Again under Section 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under Section 30 not enjoined to make a reference : he may relegate the person raising a dispute as to apportionment or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.

12. As was observed in Himalaya Tiles and Marbles v. Francis Victor, AIR 1980 SC 1118, the definition of 'person interested' in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation.

13. The exercise of power under Section 30 to refer the dispute is discretionary, the Col-lector may, but is not bound to, exercise that power. The Supreme Court also did not agree that the power under Section 30 has to be exercised on a motion within the period prescribed by Section 18(2) of the Act and ruled that the powers exercisable by the Collector under Section 18(1) and Section 30 are distinct and may be invoked in contingencies which do not overlap. It has, therefore, to be held that the Collector erred in rejecting the applications dated 12-9-1977 and 30-11-1977 under Section 30 of the Act as barred by limitation. Mr. Medhi's contention that the petitioner is not a person interested has also to be rejected being contrary to the principles of natural justice, equity and good conscience and in view of the definition of 'person interested' in Section 3(b) of the Act to include all persons claiming an interest in compensation to be made on account of acquisition under the Act.

14. Mr. Homchoudhary rightly does not seriously dispute that an application under Section 115 of C. P. C. is not maintainable against the impugned order. Under Section 115, C. P. C. the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto if the Court appears to have erred as stated thereunder. But the Collector while considering an application for reference under Section 30 may not be regarded as a Court and hence no revision may lie. The great divergency of judicial opinion as to whether the High Court has jurisdiction to revise the order of the Collector when he refused to refer under Section 18 is known. In Khetsides Gangaram v. First L. A. Collector, Calcutta, 50 Cal WN 758 : (AIR 1946 Cal 508) (FB), Calcutta High Court held that in dealing with an application under Section 18 of the Act, the Collector does not act as a Court, and even if he does, he does not do so as a Court subordinate to the High Court. The Madras view is that even if the Collector exercising his function under Section 19 although those functions are judicial functions, is a Court, he is not a Court subordinate to the High Court and therefore no revision lies to High Court. Abdul Sattar v. Spl. Deputy Collector, ILR 47 Mad 357 : (AIR 1924 Mad 442). In AIR 1960 Bom 499, Jankibai Tukaram v. Nagpur Improvement Trust it was held that a revision against an order rejecting an application requiring the Collector to make a reference under Section 18 lies to the High Court and not to the Tribunal constituted under the Nagpur Improvement Trust Act, 1936. In Kashi Prasad v. Notified Area of Mahoba. ILR 54 AH 282 : AIR 1932 All 598 Allahabad High Court held that the Collector while acting under Section 18 is not a Court subordinate to the High Court within the meaning of Section 115, C. P, C. and the High Court has no jurisdiction to revise his order even if he improperly fails to make a reference or having made it withdraws it before it has reached the District Judge. This was followed in D. J. Bhajani Lal v. Secretary of State, 54 All 1085 : AIR 1932 All 568 (SB). In Amar Nath v. Governor General, AIR 1940 Lah 299, Punjab High Court held that no revision lies as the Collector cannot be treated as a Court and a fortiori not subordinate to the High Court, Patna and Nagpur view also is that no revision lies.

15. I am inclined to hold that the Collector while refusing to refer under Section 30 of the Act, though acts judicially, is not a Court and, a fortiori, not subordinate to the High Court for the purpose of Section 115, C. P. C. Hence the application under that section is not maintainable,

16. As regards maintainability of the application under Article 227 of the Constitution Mr. Medhi submits that when an application under Section 115, C. P. C. is not maintainable the application cannot be converted into one under Article 227. He relies on Vishesh Kumar v. Shanti Prasad, (1980) 2 SCC 378 : (AIR 1980 SC 892) where it was held that a revision petition under Section 115 was a separate and distinct proceeding from a petition under Article 227 of the Constitution and one could not be identified with the other. Mr. Homchoudhary however points out that in the instant case the question is not of conversion of a revision petition into one under Article 227 inasmuch as he has already invoked Article 227 in the alternative. The submission is ex facie correct and the alternative application under Article 227 is therefore to be disposed of. Under that Article the High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction except over any Court or Tribunal constituted by or under the law relating to the Armed Forces. The Collector, acting under Section 30 of the Act is not excepted. In the instant case the error of law as to limitation is apparent, there being no limitation prescribed under Section 30 of the Act. In Mrs. Khorshed Shapoor v. Assistant Collector of Estate Duty, AIR 1980 SC 775 it was held that on acquisition of land the claimant has only one right, which is to receive compensation for the lands at their market value on the date of the relevant notification and it is this right which is quantified by the Collector under Section 11 and by the Civil Court under Section 36 of the Act. The claimant's right to receive compensation can be effectuated in Civil Court on reference under Section 30 of the Act. The expression 'person interested' includes all persons claiming interest in compensation to be made on account of the acquisition of land under the Act and a person shall be deemed to be interested in land if he has interest in an easement affecting the land. If the averments made by the petitioner are found to be correct, she may as well be held to be a person interested. The Collector while acting under Section 30 of the Act has the judicial discretion to refer or not to refer, which surely concerns the rights of the petitioner; and the Collector forms a part of the infra-structure of the sovereign's dispensation of justice, falling within the canopy of the Courts and Tribunals amenable to judicial supervision of the High Court. In AIR 1976 SC 425 this principle was applied to an arbitrator functioning under Section 10-A of the Industrial Disputes Act. The Collector having; been a functionary under the Act, when his order is stained by an apparent error of law, and violation of the principles of natural justice, it is amenable to judicial review under Article 227. In Gian Singh Mann v. The High Court of Punjab and Haryana, AIR 1980 SC 1894 their Lordships negatived the contention that when there is a voluntary joint submission of an industrial dispute to an Arbitrator named by them under Section 10-A of the Industrial Disputes Act, he does not

function as a Tribunal and is not amenable to the jurisdiction of a Court under Article 227 or under Article 226, on the same ground. In AIR 1968 SC 1481, the Collector in the matter of awarding compensation under Bombay Talukdari Tenure Abolition Act was held to be a Tribunal.

17. In the instant case the Collector erred in treating the two applications, as objections under Section 9, and in rejecting the applications as barred by limitation. These errors apparent have surely affected the petitioner's right to receive compensation as claimed. She also has a right to her applications to be considered according to law. The impugned order, therefore, has to be quashed, and I do so. The applications dated 12-9-1977 and 30-11-1977 under Section 30 of the Act are remanded to the Collector to be disposed of according to law after nonce to parties The petition is allowed and the Rule is made absolute, but under the circumstances of the case, without any cost


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //