Norman Macleod, Kt., C.J.
1. Certain lands situated in the District of Thana were notified for acquisition under the Land Acquisition Act. Notice was served by the Collector on Mr. P.N. Gupte, in whose name the lands stood in the Government records.
2. On May 5, 1920, Mr. P.N. Gupte put in a claim for compensation under Section 9 of the Land Acquisition Act. Mr. B.D. Gupte, his uncle, who was present, stated that he and Mr. P.N. Gupte, his nephew, were interested in the same land.
3. After the award was made Mr. B.D. Gupte wrote, on July 8, 1922, to the Salsette Development Officer stating that he was the owner of one half of the land, and had appeared before the Collector to make a demand for compensation. He complained that without any further intimation to him a cheque for the full value of the land had been ordered to issue to his nephew, Mr. P.N. Gupte, and in spite of his protest made when he appeared again on June 30, the cheque was handed over to Mr. P.N. Gupte. He, therefore, made an application under Section 18 that the matter might be referred to the District Judge of Thana for settling the apportionment of payment. On that letter a note was made that nothing could be done by the Collector as Mr. P.N. Gupte only had been recognised as the claimant.
4. On July 14, Mr. B.D. Gupte wrote that he might be furnished with a true copy of the award made in respect of the land, and he was informed that the land which he said stood in the name of his late father Daji Govind Gupte, never so stood in his name. He was also informed that no land acquired for the protection of Vehar Lake stood in the name of Daji Govind. If he referred to the land in which he claimed half a share, he knew already that the land stood in the name of Mr. P.N. Gupte.
5. An appeal was made to the Commissioner, In August 1922 the Commissioner for the Bombay Suburban Division replied that he was unable to ask the Collector to make a reference to the District Court as desired by him. The applicant was referred to the civil Court.
6. We are now requested by the petitioner to interfere under the powers given us by Section 115 of the Civil Procedure Code, The first question that arises is whether the Collector acting under the powers given him by the Land Acquisition Act is a 'Court', and then if he is a 'Court' whether it is subordinate to the High Court. What constitutes a 'Court' does not appear to have been defined by any Act of Legislature, but it may be presumed that an officer to be a 'Court' must be competent to make a judicial decision. But even if the Collector is a 'Court' when an application is made to him to make a reference under Section 18 of the Land Acquisition Act, can he be said to be subordinate to the High Court? Under Section 107 of the Government of India Act each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do the various things mentioned in the section. So it may be presumed, in the absence of any statutory direction to the contrary, that unless the High Court has appellate jurisdiction over a Court, that Court will not be subordinate to the High Court.
7. In Sayed Mohamed Husen v. City Survey Officer (1919) Civil Extraordinary Application No. 165 of 1918 this Court was asked to interfere in revision with an order passed by the City Survey Officer of Broach who had been directed to acquire certain land for the Broach Municipality. The petitioner, after an award had been made by the City Survey Officer, made an application that the case should be referred to the Court, and the City Survey Officer passed $m order that the application was time-barred. The judgment of the High Court said: 'The first question is whether we can interfere with the decision of the City Survey Officer under Section 115 of the Civil Procedure Code, and we are clearly of opinion that the City Survey Officer was not 'a Court' within the meaning of that section.'
8. Again in Bibi Sardarbibi v. The Land Acquisition Officer, Ahmedabad (1922) Civil Extraordinary Application No 282 of 1921 the petitioner prayed that the order parsed by the Land Acquisition Officer on the applicant's application for making a reference to the District Court of Ahmedabad under Section 18 of the Land Acquisition Act should be set aside. Following the decision in the previous case it was held that the Land Acquisition Officer was not 'a Court' within the meaning of Section 115 of the Code, although it was said that if there had been any merits in the case, the Court would have expressed an opinion that the petitioner's request should be treated with some consideration at the hands of Government.
9. We have been referred to the decision in Parameswara Aiyar v. Land Acquisition Collector, Palghat. I.L.R. (1918) Mad. 231. In that case an application had been made to the Collector to refer the matter of compensation to the Court. An order was made on the application that the applicants did not appear to be the accredited representatives of the devaswom. The petition was, therefore, rejected. It was held that the act of the Collector in refusing to make a reference under Section 19 was a judicial act. It could not be denied that the proceedings under Part III of the Land Acquisition Act which resulted in an award of the Court were judicial proceedings, and by virtue of Section 54 the Court was subordinate to the High Court. Sections 18 and 19 provided for the procedure to be adopted to initiate those proceedings. Ordinarily a proceeding was commenced in a Court of law by the presentation of a plaint or a petition to it; but the Land Acquisition Act had adopted a somewhat different method, viz., the presentation of the application to the Collector. If the requirements of Section 18 were complied with, the Collector had no option but to make the reference, and in doing so, in addition to the statement to be sent by him under Section 19, Clause (1), he had to attach a schedule of the particulars of the notices served and of the statements made by the parties. It seemed clear, therefore, that the proceedings which culminated in the Court's award commenced With the filing of the application under Section 18. As soon as it was filed the matter of the amount of proper compensation assumed a litigious form and became a contentious proceeding between the owner and the Collector. It followed, therefore, that if the Collector decided to reject it or passed any orders regarding it, he did so judicially and not administratively; for a judicial proceeding once commenced could not be affected by administrative action. The view that the Collector was a 'Court' seems to have been adopted, as stated by Mr. Justice Krishnan at p. 235, because it was consistent with the language and scheme of the Act, and because, if the High Court did not do so, there would be no proper and adequate remedy to prevent a misuse of power by the Land Acquisition Collector who, by adopting the simple expedient of refusing to refer, might prevent an enquiry by the Court into the correctness of his own award, at any rate in all cases arising outside the Presidency towns. The remedy by 'mandamus' under Section 45 of the Specific Relief Act was available only within the ordinary original civil jurisdiction of the High Courts and not outside it.
10. With all due respect I cannot agree with this reasoning. I can quite understand that if the Collector refuses to do an act which is incumbent upon him under the provisions of the Land Acquisition Act, Part III, there (should be some remedy available to the party aggrieved. But it does not follow that the refusal of the Collector to do his duty is a judicial act, or that even if it is a judicial act, it is a judicial act of a Court subordinate to the High Court. In this case I admit there seem to have been no reasonable grounds for the refusal of the Collector, or the Commissioner to refer to the Court the question of the apportionment of the compensation awarded, though at the same time there is nothing to prevent the present petitioner filing a suit against his nephew for the division of the compensation money. As far as I can sea the High Court has not been given the power to interfere with the proceedings of the Collector, so that if he refuses to do what seems incumbent upon him under the provisions of Section 18 of the Land Acquisition Act, we cannot direct him to make a reference, and the proper remedy is either for the Legislature to give us powers of superintendence over the Collector's proceedings under the Land Acquisition Act, or for the Government to draw the attention of their officers to the provisions of the Act, and lay down rules for their guidance, if they have not already done so.
11. No doubt as the expression 'person interested' in Section 3(b) of the Land Acquisition Act includes 'all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act', and as under Section 18, Clause (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', the Collector, provided he does not consider the application as time-barred, is bound to make a reference. But if he fails in the duty imposed upon him by that section, in my opinion, this f Court has no power to direct him to perform it. I think, therefore, that the rule must be discharged with costs.
12. The question for our decision in this case is whether we have power to interfere with an order of the Collector refusing to refer to the Court the question of apportionment of compensation. That the petitioner here was a person interested cannot be denied, for he was a person claiming an interest in compensation made on account of the acquisition of land under the Land Acquisition Act, and he, therefore, fell within the definition of Section 3(b).
13. The real question is whether the Collector refusing to make a reference under Section 18 is a 'Court,' and as such subject to our powers of revision or superintendence. Now it is clear from the decision in Ezra v. Secretary of State for India (1905) 7 Bom. L.R. 422. that the functions of the Collector in making an award are administrative and not judicial. In that case their Lordships of the Privy Council say (p. 425):
The objection is based and depends upon the theory that the enquiry by the Collector was a judicial proceeding, and that the rules of judicial proceedings apply. The argument of the Appellant strata from the word 'award ' (which is used to describe the conclusion of the Collector)) and has nothing else to support it. When the sections relating to this matter are read together, it will be found that the proceedings resulting in this 'award ' are administrative and not judicial; that the 'award' in which the enquiry results is merely a decision (binding only on the Collector) as to what sum shall be tendered to the owner of the lands; and that, if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court1. The sections directly relevant (besides the 9th already set out! are the 11th, 12th, 13th, 14th, 15th, and 18th.
14. It is clear, therefore, that up to the time when the petitioner made his written application to the Collector requiring the matter to be referred for the determination of the Court, the Collector was acting administratively only, and speaking for myself, I can find nothing in Section 18 and 19 to lead me to hold that the Collector at that stage of the proceedings became 'a Court.' In the absence of any definition of 'Court', the question would be whether the Collector was clothed with any judicial functions, that is to say, had he power to hear and determine any question between conflicting parties?
15. A Now apart from the power to decide the question of limitation, which is dealt with by the proviso to Section 18, a matter with which we are not concerned in the present case, all that the Collector had to do was, on receipt of the application, to take the steps set out in Section 19. I cannot say that he had power to determine anything. He was bound to proceed, and as his refusal to proceed was contrary to the plain duty imposed upon him by the Statute, it seems to me a contradiction in terms to say that in refusing to do that which he was bound to do he was acting judicially.
16. Those shortly are the reasons for which I hold that the Collector acting under Section 18 of the Act cannot be held to be 'a Court', and if that is so, it necessarily follows that we have no power to interfere with his order in this case. That there is a hardship is plain. But that is not, in my opinion, a reason for placing upon the words of the Statute an interpretation which they do not reasonably bear. That is a matter for consideration of the Executive Government or for the Legislature, and one with which we have no concern. I agree therefore, that this Rule should be discharged with costs.