1. This is an appeal by the State under the Land Acquisition Act and it arises under the following circumstances:
2. One Abdul Qayoom Mahomed Ali of Bombay purchased Survey No. 9 at Aurangabad situated very near the Station under exh. 34 on Khurdad 26, 1351 F. (in or about 1942). Survey No. 9 measures 11 acres 31 gunthas. A notification was published on June 11, 1959, under Section 3 of the Hyderabad Land Acquisition Act for acquiring a piece out of it, measuring 3 acres 12 gunthas, for constructing a low-income group rest house at Aurangabad. The land is situated on the main road from the city to the station. The notification under Section 5 of the Hyderabad Land Acquisition Act (s. 6 of our Land Acquisition Act) was published on August 3, 1959. The land seems to have been entered in the revenue record in the name of Abdul Qayoom Abdul Rahim. Attempts were made therefore to issue notices to the purchaser but they failed. Eventually the notice was affixed on a prominent portion of the land. Before the notification under Section 5 was made, respondent No. 1, Zulfequar Hussain, made an application, exh. 53, on July 30, 1959, objecting to the acquisition. Apparently no notice seems to have been taken of this application as his name did not appear in the revenue record. In this application he had stated that he was the owner and in possession of the land. In a later paragraph he stated that besides the applicant, there were other shareholders in the land. Thereafter he made application, exh. 55, on January 16, 1960, making his claim for compensation of Rs. 33,000 as the minimum compensation to which he would be entitled. He was replied that as the Land Acquisition Officer had already framed his award, no notice could be taken of his application. Eventually the Land Acquisition Officer published the award on February 17, 1960, valuing the land at Rs. 4,840 per acre i.e. Re. 1 per sq. yard. As respondents Nos. 1 to 5 were claiming title to their property and they also asked for a reference, the Land Acquisition Officer made the reference both tinder Section 15 of the Hyderabad Land Acquisition Act (s. 18 of the India Act), and Section 25 of that Act (s. 30 of the India Act), both regarding quantum as well as apportionment of the compensation.
3. It appears that it was realised that since the sale-deed was in the name of Abdul Qayoom Mahomed Ali, a notice to him was also necessary. Accordingly the trial Court issued notice of the proceeding to Abdul Qayoom. He did not appear in Court but his power-of-attorney holder one Mahomed Ladha signed a vakalatnama in favour of one Mr. Jain and later filed his written statement admitting the claim of respondents Nos. 1 to 5.
4. The two issues in this reference therefore were whether respondents Nos. 1 to 5 were owners of land in dispute and secondly whether the compensation awarded by the Land Acquisition Officer was adequate. Both these issues the learned Judge answered in favour of respondents Nos. 1 to 5. The State has come in appeal.
5. A preliminary objection has been raised on behalf of respondents Nos. 1 to 5 that the whole appeal must be regarded as having abated because one of the co-owners, Abdulali son of Abdul Rahim, respondent No. 3, died on July 6, 1965, after the appeal was filed and the Civil Application No. 2647 of 1967 for bringing his heirs on record was rejected by this Court on October 24, 1967, and secondly his name was ordered to be struck off from the record. It is argued that inasmuch as the question of compensation affects all the five respondents together, any variation of the decree by reducing the amount of compensation would create conflicts and therefore the whole appeal must abate. This contention, no doubt, would have been sound if we had been satisfied that the land belonged to the first five respondents. Moreover respondent No. 1 has all along acted as representative of the family. Unless it is held that they are the owners of the land, there is no question of joint right to the compensation or any part thereof. Under the circumstances, therefore, we must proceed to hear the first question as to whether respondents Nos. 1 to 5 established their case.
6. It is then contended that the State is not entitled to appeal as in acquisition proceedings it has no status. Reliance is placed by Mr. Tambe on the decision in In re Jerhai Framji Mehta (1949) 52 Bom. L.R. 236. It is argued that the Collector or the Land Acquisition Officer alone is entitled to proceed in the matter. Section 3-A gives power to an authorized officer to enter upon land for survey etc. to enable the State Government or the Commissioner to decide whether the land is needed for any public purpose. Hero it is obvious that the Commissioner is not acting for his own purposes but for the State only. Notification under Section 4 is to be issued by the State Government or the Collector that the land is needed for a public purpose. Final decision regarding the need is to be made by the Commissioner, or the Government. Similarly final declaration is to be made by the State Government or the Commissioner under Section 6. Subsequent proceedings are to be taken by the Collector and finally he has to fix the compensation and make the award under Section 11. The proviso to this section, however, is important and requires the Collector to obtain the approval of the State Government or such officer as is authorized in this behalf in cases where the compensation exceeds a certain amount. Section 15-A gives the State Government the power to revise the proceedings of the Collector. Under Section 16 on acquisition, the land is to vest in the State Government. Section 20 requires the Court in cases where the area of the land or the amount of the compensation is questioned, to serve notice on the Collector. Section 12(2) shows that it is the Government who makes the payment of the price and over-payments are to be paid back to the Government. It is true of course that the Collector is directed to pay the compensation. But that is to be paid on behalf of the State Government and not on his own account. It is true that notice under Section 20 has to be issued to the Collector but then he acts on behalf of the Government and it is the Government who would be aggrieved by the award since the land is to be its property. The Collector in all proceedings under the Land Acquisition Act acts as the agent of the State Government and not in his own right or as an independent Corporation sole which he is not. (See Ezra v. The Secretary of State I.L.R.(1902) Cal. 36 and Ezra v. Secretary of State for India I.L.R.(1905) Cal. 605: 7 Bom. L.R. 422 If the Collector is merely an agent of the State Government, the State Government as principal would be entitled to appeal. Thus in British India Steam Navigation Go. v. Secretary of State for India I.L.R.(1910) Cal. 230, Narsingh Das v. Secretary of State for India (1924) L.R. 52 IndAp 133 : 27 Bom. L.R. 783, Banshidhur Marwari v. Secretary of State for India I.L.R.(1926) Cal. 312 Nowroji Bustomji v. The Government of Bombay I.L.R. (1925) Bom. 700 : 27 Bom. L.R. 1140, p.c. and Ahidhar Ghosh v. Secretary of State for India the Secretary of State was made party. This question was raised in Collector and Chairman, District Board, Gujranwala v. Hira Nand I.L.R.(1928) Lah. 667, and it was held that Section 79 of Civil Procedure Code was applicable and the only person who could be impleaded as respondent would be the Secretary of State. It is true that in a good many cases either the Collector or the Special Land Acquisition Officer is made a party. But that should not mean that where the State Government appeals or is made respondent, the appeal should be treated as defective, though we are of the view that it would be appropriate to show only the State Government as a party. In In re Jerbai Framji Mehta's case relied upon by Mr. Tambe, we think with respect, that too much stress is laid on the fact that Collector has to pay the costs, interest and the additional amount. This however does not mean that Government cannot file the appeal against the award. Moreover, the question in that case was who should be issued notice in a reference and who should appear, whether the Collector or the Government. Of course, in substance it did not make any difference for the reasons stated above. We are, therefore, of the view that the appeal is properly filed.
7. [The rest of the judgment is not material to this report].