Basil Scott, Kt., C.J.
1. In the year 1906-.the Government of Bombay took action to acquire by the machinery of the Land Acquisition Act, 1894, Part of Surway No. 29 of Nisbat Manjre in the Poona Collectorate with the Buildings thereon.
2. The land, the subject of the acquisition, was registered in the Revenue records as Maharki Vatan. It was in the occupation of Messrs. Ladha Ebrahim and Co., to whom the buildings erected upon it admittedly belonged.
3. On the 19th of March the Assistant Collector passed an award whereby he awarded to Messrs. Ladha Ebrahim & Co., for the buildings Rs. 10,777 and to the Mahars collectively, who claimed to be interested as Watandars, Rs. 4,508 for the land. He directed that the latter sum should be credited in the Government Treasury in the names of the Mahar claimants and that the interest accruing thereon should be paid to them by the Mamlatdar. There is nothing to indicate that this was under any arrangement come to with the Mahar claimants under Clause (4) of Section 31 of the Land Acquisition Act but for the purposes of this judgment we will assume that these directions were not ultra vires.
4. The award was not accepted by Messrs. Ladha Ebrahim & Co., and the Assistant Collector accordingly, as required by them, referred the matter to the Court under Section 18 of the Act.
5. The objections of Messrs. Ladha Ebrahim & Co., were both as to the amount of the compensation and the persons to whom it was payable. Under the latter head the objectors claimed the whole of the compensation for the Maharki land on the ground that they had acquired it by adverse possession. This claim was decided in their favour by the award of the Court delivered on the 22nd of August 1907. Messrs. Ladha Ebrahim & Co. thus became entitled as against the Mahar claimants to the compensation money Rs. 4,508. On the 23rd of November 1907, however, the Collector of Poona forwarded to the Court of the District Judge a certificate purporting to be issued under Section 10 of the Watan Act in order that the 'order for the payment' of the compensation amounting to Rs. 4508 to Messrs. Ladha Ebrahim & Co., might be set aside ' in accordance with the provisions of Sections 10 and 13' of Bombay Act III of 1874. The District Judge heading that the Court had no jurisdiction to decide whether property is Watan or not in face of the Collector's certificate cancelled his former order directing the compensation money to be paid to Messrs. Ladha Ebrahim & Co.
6. From this decision Messrs. Ladha Ebrahim & Co. appeal contending that the Collector's certificate was issued without jurisdiction and is of no effect.
7. Section 10 of the Watan Act of 1874 empowers the Collector to issue a certificate when it appears to him that by virtue of or in execution of a decree or order any Watan property has passed or may pass without the sanction of Government into the ownership or beneficial possession of any stranger to the Watan.
8. In considering whether the action of the Collector in the present case was within his powers various questions arise.
9. Is there a decree or order in this case such as is contemplated by the section : if so has any property passed or can it conceivably pass by virtue or in execution of such decree or order : and if so has it passed or may it pass without the sanction of Government ?
10. With regard to the first question we think the reasoning of the majority of the Court in Nilkanth v. Collector of Thana ILR (1897) 22 Bom. 802 sufficiently establishes that an award under the Land Acquisition Act of 1894 is not a decree or order capable of execution under the Civil Procedure Code and is therefore not within the purview of the section. As regards the second question the award of the Court which was the cause of the certificate made it quite clear that the Mahars' property had been acquired by Messrs. Ladha Ebrahim and Co., by adverse possession before the commencement of the proceedings for the acquisition of the land by Government under the Land Acquisition Act.
11. The Collector is called upon to make some inquiry before issuing his certificate ' and thus exercising a judicial function is subject to control by this Court, should he make his authority a mere cloak for illegal and wholly unreasonable proceedings:' see Collector of Thana v. Bhasker Mahadeo ILR (1884) 8 Bom. 264. It could not appear to the Collector if he had perused the award of the Court which he wished to have set aside that Messrs. Ladha Ebrahim and Co. were in ownership of the land at the date of its acquisition by Government otherwise than by adverse possession. Even if it could be said that there was any danger of the passing of the ownership by virtue or in execution of a decree or order in the Land Acquisition proceedings it could not be said that that result was arrived at without the sanction of Government who set the machinery of the Act in motion for the acquisition of the land. Moreover, it has been said by a Full Bench of this Court in Rachapa v. Amingowdad ILR (1880) 5 Bom. 283 that it cannot be supposed that the ' Bombay Legislature had any such purpose in its contemplation when enacting Section 10 of the Act as to take advantage of the errors of the Civil Courts by maintaining a possession obtained by their wrongful operation or to interfere with the jurisdiction of the High Court to reverse and prevent the execution of erroneous decrees of Courts subordinate to it.' Yet if we allowed the Collector to intervene and say as in effect he does wish the award of the Assistant Collector to stand and that of the Court on the reference under Section 18 to be set aside ' we should be crediting the Legislature with such an intention. For these reasons we restore the award of the Court and direct the District Judge not to act on the certificate of the Collector.
12. The Government must pay the costs of the appellant. Ladha Ebrahim and Co.'s Appeal No. 15 of 1908, as to the amount of compensation, is dismissed with costs.