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In Re: Jerbai Framji Metha - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberLand Acquisition Ref. No. 2 of 1942
Judge
Reported inAIR1950Bom243; (1950)52BOMLR236
ActsLand Acquisition Act, 1894 - Sections 3, 18 and 20
AppellantIn Re: Jerbai Framji Metha
Appellant AdvocateH. D. Banaji and ;K. T. Desai, Advs.
Respondent AdvocateM. P. Laud and ;K. H. Bhabha, Advs.
Excerpt:
.....government entitled to appear on reference.;in a reference, under section 18 of the land acquisition act, 1894, relating to compensation, the collector as denned in section 3(c) of the act is entitled to appear. where, however, the reference relates to apportionment, neither the collector nor the government have any locus standi whatsoever. - - i am clearly of the opinion that this procedure is contrary to law. but having regard to the entire scheme of the land acquisition act i am satisfied that the only person who is entitled to appear in a reference relating to compensation is the collector as defined in section 3(c) of the act and that in cases relating to apportionment, neither the collector nor the government have any locus standi whatsoever. it is also the duty of.....ordertendolkar j.1. this is a reference under section 18, land acquisition act, 1894. upon its being called out for hearing, mr. banaji appeared for the government with mr. k. t. dasai. counsel foe the claimants raised a question as to who that government was entitled to appear on a reference under section 18; and the matter has now been fully argued before me.2. in order to determine whether the government has any locus standi in these proceedings, it is necessary to consider the provisions of the land acquisition act. under section 3(c) of that act the expression 'collector' has been defined as meaning the collector of a district and any officer specially appointed by the local government to perform the functions of a collector under this act. section 4 of the act provides for the.....
Judgment:
ORDER

Tendolkar J.

1. This is a reference under Section 18, Land Acquisition Act, 1894. Upon its being called out for hearing, Mr. Banaji appeared for the Government with Mr. K. T. Dasai. Counsel foe the claimants raised a question as to who that Government was entitled to appear on a reference under Section 18; and the matter has now been fully argued before me.

2. In order to determine whether the Government has any locus standi in these proceedings, it is necessary to consider the provisions of the Land Acquisition Act. Under Section 3(c) of that Act the expression 'Collector' has been defined as meaning the Collector of a District and any officer specially appointed by the Local Government to perform the functions of a Collector under this Act. Section 4 of the Act provides for the publication of a preliminary notification if the Local Government is of opinion that any land is needed for any public purpose. It also provides that the Collector shall cause such a notice to be published at a convenient place in the locality. Section 5A provides that any person interested in the land may object to such an acquisition. These objections are under Sub-section (2) to be made to the Collector and disposed of by him in the sense that he has to report the matter to the Local Government. The Local Government may, after this reports, make under Section 6 a declaration that the land is required for a public purpose. It appears that from this stage onwards the Local Government recedes into the background in the matter of acquisition and the Collector alone comes on the scene, Section 7 provides that after the declaration the Local Government or come officer authorised by the Local Government shall direct the Collector to take order for the acquisition of the land. Then Section 8 provides that the Collector shall cause the land to be marked out and measured and a plan prepared thereof. Section 9 provides that the Collector shall cause a public notice to be given that the Government intends to take possession. Section 10 empowers the Collector to require and enforce the making of statements as to the names of persons interested, etc., and Section 11 provides that the Collector shall, after following the procedure therein set out, make an award under his hand, on three matters, (1) the true area of the land, (2) the compensation which in his opinion should be allowed for the land and (3) the apportionment of such compensation amongst the persona interested. Section 12 provides that such award shall be 'final and conclusive evidence, as between the Collector and persons interested,' although, prima facie, it may appear strange that an award of the Collector should bind himself. Sections 13 and 14 confer powers on the Collector for the purpose of conducting the proceedings before him. Section 15 provides that the Collector shall be guided by the provisions of Sections 23 and 24 in determining the amount of compensation. Section 16 provides that the Collector shall take possession of the land after an award is made. This section further provides that upon such possession being taken, the land shall vest absolutely in the Government. This and Section 9 which speaks of the Government's intention to take possession are the only references to Government in the Act after Section 7, but quite obviously they have no relevance to any reference proceedings before me. Section 17 confers upon the Collector certain special powers in cases of emergency. Under section is any person interested may apply to the Collector that a reference should be made to Court. Section 19 provides for the particulars to be given by the Collector in any such reference. Section 20, which in this respect is material, provides that the Court shall thereupon cause a notice, specifying in it the day on which the Court shall proceed to deter-mine the objections and directing their appearance before the Court on that day, to be served, (a) on the applicant, (b) on all persons interested in the objections, except such if any of them Sections have consented without protest to receive payment of compensation awarded and (c) if the objection is in regard to the area of land or to the amount of compensation, on the Collector. It is material to note that Government is not one of the parties to whom the notice is to be given directing their appearance before the Court on the day of the hearing, but the Collector only is served and that too in oases where the reference is for compensation and not is cases where the reference relates to apportionment. Sections 22 to 26 provide for matters to be considered upon such a reference. Section 22(2) contains a provision that when the award of the Collector is not upheld, the costs shall ordinarily be paid by the Collector which would indicate that the Collector is or may be a party to the proceedings and is entitled to be heard in compensation cases in any event. Section 28 provides that if the Court awards any higher amount than the amount awarded by the Collector, the Court may direct the Collector to pay interest on such excess at the rate of 4 percent per annum. All these provisions to my mind make it abundantly clear that after the Government has made a declaration under Section 6 of the Act, they drop out of the proceedings completely and it is only the Collector who is entitle to appear on the reference.

3. Mr. Banaji on behalf of the Government has drawn my attention to the fact that the uniform practice since 1894 has been that the Solicitor to Government forwards the reference to the High Court and requests the Prothonotary to issue the requisite notices under Section 20'. Thereafter, notices on the claimants and other persons interested are issued by the Prothonotary and they are served at the instance and with the assistance of the Solicitor to Government; but no notice is issued to the Collector as required by Section 20(c) in any case. It further appeal's that the same procedure applies even in apportionment cases where quite obviously Government has no stake in the matter at all. I am clearly of the opinion that this procedure is contrary to law. It may be that this Court will have to frame rules for giving effect to the provisions of the Land Acquisition Act contained in Section 20 in the matter of giving notice. But having regard to the entire scheme of the Land Acquisition Act I am satisfied that the only person who is entitled to appear in a reference relating to compensation is the Collector as defined in Section 3(c) of the Act and that in cases relating to apportionment, neither the Collector nor the Government have any locus standi whatsoever.

4. My attention has also been drawn to the fact that the decrees drawn up on the awards made by the Court in land acquisition references in the past have directed Government to pay a particular amount of compensation. This does not appear to me to be justified by any provisions of the Land Acquisition Act, Section 27(2) of which states that where an award is not upheld, costs should be payable by the Collector and Section 28 of which states that the Court may direct the Collector to pay interest on excess compensation. It is to my mind clear from these provisions that the only party who can be directed to pay compensation is the Collector as defined in Section 3(c) for the purposes of the Act. It is also the duty of the Collector and not of Government to make a reference to Court under Sections 18 and 19 regarding compensation or apportionment as well as under Section 30 in respect of apportionment. Such a reference ought to be forwarded to the Court either by the Collector himself or by a person duly authorised by him in that behalf.

5. I, therefore, hold that the Government is not entitled to appear in this land acquisition reference. In the present case, the Collector, within the definition of Section 3(c), happens to be the Land Acquisition Officer for Bombay City and Bombay Suburban District by virtue of Notification No. 518/39 dated 9th November 1939, published in the Bombay Government Gazette. I, therefore, direct that the name of the Government should be removed from this reference and the name of the Special Land Acquisition Officer, Bombay City and Bombay Suburban District, for substituted in its place.


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