1. This is an appeal from a judgment of the learned Joint District Judge, Nasik, dated August 22, 1969, in a Reference under Section 18 of the Land Acquisition Act. The land under acquisition comprises of the whole of S. No. 65 of Khayade village admeasuring 16 acres and 53 gunthas, and Potkharaba 1 acre and 34 gunthas, aggregating to 18 acres and 27 gunthas. According to the revenue records, the western part of that survey number was sub-divided into Hissa No. 1 admeasuring 9 acres and 2 gunthas, which together with Potkharaba 1 acre 7 gunthas, totalled to 10 acres and 9 gunthas; and the eastern part thereof was sub-divided into Hissa No. 2 admeasuring 7 acres and 31 gunthas, and Potkharaba 27 gunthas, admeasured in all 8 acres and 18 gunthas. It was the case of respondent No. 1 in this appeal that the whole of the land comprised in Hissa No. 1 of the said S. No, 65 belonged to him and was in his possession till the date of acquisition and he was entitled to compensation in respect thereof. In the course of the land acquisition proceedings, however, the Special Land Acquisition Officer came to the conclusion that respondent No. 1 (Bhogilal) was found to be in possession only of 5 acres and 37 gunthas of the land in Hissa No. 1 of S. No. 65 which, together with Potkharaba of 1 guntha, aggregated only to 5 acres and 88 gunthas, and that all the rest of the land in Hissa No. 1, as well as the entire land comprised in Hissa No. 2 of S. No. 65, was in possession of respondent No. 2 (Nathu Lala) and compensation was awarded by him on that footing. The amount of compensation which was determined by the award to be payable to Nathu Lala was paid to him by the Government. At the instance of Bhogilal, a Reference was made to the District Court of Nasik under Section 18 of the Land Acquisition Act in which the said Bhogilal claimed compensation in respect of the remaining portion of Hissa No, 1 of S. No. 65 consisting of 3 acres and 5 gunthas of land, which together with Potkharaba 1 acre and 6 gunthas, aggregated to 4 acres and 11 gunthas. The said Bhogilal also claimed a higher amount by way of market value of the said land, but that claim was given up by him at the hearing of the Reference. The dispute which was raised in the said Reference was, therefore, not a dispute in regard to the apportionment of compensation in respect of the same piece of land, but was a dispute in regard to the title to the said 4 acres and 11 gunthas which were part of Hissa No. 1 of S. No. 65. The lower Court framed two issues : (1) Whether Bhogilal had proved his title to the said 4 acres 11 gunthas of land; and (2) whether Nathu Lala had proved that he had acquired title to the said 4 acres 11 gunthas of land by adverse possession. The learned Judge in the lower Court came to the conclusion that Bhogilal had proved his title to the said 4 acres 11 gunthas being part of Hissa No. 1 of S. No. 65, and he also came to the conclusion that Nathu Lala had failed to prove that he had acquired title by adverse possession to the same. The lower Court, therefore, held Bhogilal entitled to compensation for the disputed land admeasuring 4 acres 11 gunthas, the amount of such compensation being Rs. 2,388,80, and took the view that the mere fact that compensation in respect of the said 4 acres 11 gunthas had already been paid to the said Nathu Lala by the Government did not absolve the Special Land Acquisition Officer or the Government from paying the amount of that compensation to Bhogilal who was entitled to the same. The learned Judge, therefore, ordered that both the Special Land Acquisition Officer as well as the said Nathu Lala 'do pay to the claimant Bhogilal Lalchand Rs. 2,388.80,' and the costs of the proceedings before him, on or before the date fixed by him. The State has come in appeal from that order on the ground that the lower Court erred in directing that the Special Land Acquisition Officer should pay the amount in question to the claimant, and has submitted that such an order was contrary to law, and the State could not be called upon to pay the amount twice over, if it had already paid the same to Nathu Lala. It was sought to be contended on behalf of the State that the remedy, if any, of Bhogilal, was against Nathu Lala only, and not against the State or the Special Land Acquisition Officer acting on its behalf.
2. It will be convenient, at this stage, to deal with this question first on a plain reading of the provisions of the Land Acquisition Act, apart from authority, and then turn to the authorities on the point that were cited before me. Section 11 of the Act lays down what the contents of an award made by the Collector or the Special Land Acquisition Officer, as the case may be, should be. It enacts that the award should contain, (1) the true area of the land, (2) the compensation which should be allowed for the land, and (3) apportionment of that compensation amongst the persons interested in that land. Section 18 thereof provides that, if any person interested in the land so desires, he may by written application call upon the Collector (which term as defined in Section 3(c) includes the Special Land Acquisition Officer) requiring him to make a Reference to the Court, whether his objection be to the measurement of the land, the amount of compensation, the 'person to whom it is dayable,' or the apportionment of compensation among the persons interested. Section 30 of the Act also provides for a Reference being made thereunder, if the dispute is confined to apportionment of the compensation awarded by the Collector, but it may, at this stage, be clarified that the reference in the present case has been made under Section 18 of the Act in so far as, on a proper view of the matter, the dispute is not in regard to the apportionment of compensation in respect of the same land, or part of the land, but is a dispute in regard to 'the person to whom it is payable' within the terms of Section 18(1). In short, the dispute which was raised in the Reference before the lower Court was a dispute in regard to the title to the said 4 acres and 11 gunthas of land which was part of Hissa No. 1 of the said S. No. 65. Section 23 of the Act lays down that, in determining the amount of compensation 'to be awarded' for the land in question, the Court must take into consideration certain matters specified in that section, the main one being the market value of the land at the relevant date. It may well be noted that Section 23 as well as Section 26, to which I will presently refer, occur in the Part that deals with proceedings by way of Reference to Court, and when Section 23 uses the expression 'to be awarded' it is laying down, in effect, the form which the order of the Court should take on a Reference made to it under the Act. Section 26 makes that position amply clear when in the first sub-section thereof it lays down that 'every award' under the said Part must be in writing signed by the Judge, and must specify the amount awarded by way of market value of the land, and also the amounts, (if any), respectively 'awarded' under the other heads in Section 23, together with the grounds of 'awarding' the same. It, therefore, leaves no room for doubt whatsoever that the order of the Court has to be in the form of an award and not in the form of an executable decree or order for payment, and it is for that precise reason that it became necessary for the Legislature to enact Sub-section (2) of Section 26 which is in the following terms :
(2) Every such award shall be deemed to be a. decree and the statement of the grounds of every such award a judgment within the meaning of section 2, Clause (2), and section 3, Clause (9), respectively, of the Code of Civil Procedure, 1908.
The deeming provision contained in Section 26(2) would have been wholly unnecessary if the order which the Court was to pass on a Reference made to it was to be in the form of an executable order or an order for payment. On a plain reading of the relevant sections of the Act, I have, therefore, no hesitation in coming to the conclusion that the order passed by the learned Judge in the lower Court that the Special Land Acquisition Officer as well as the said Nathu Lala 'do pay' to Bhogilal the said sum of Rs. 2,388.80, together with the costs of the proceedings before him is wrong as a matter of form, and it is because the learned Judge has made his order in an erroneous form that all the difficulties in this case have arisen. His order should merely have been in the form of an award as laid down by Section 26(i), without containing an order against anybody to pay the amount in question. Section 26(2) would then have come into play and given to that order the force of a decree against whoever is liable under the relevant statutory provisions.
3. There is one more section of the Act to which reference must be made, in so far as it was relied upon strongly by the learned Government Pleader on behalf of the State, and that is, Section 81. It was the contention of Mr. Gumaste on behalf of the State that the Collector having paid off the amount of compensation in respect of the disputed 4 acres 11 gunthas to the said Nathu Lala under Sub-section (1) of Section 31 of the Act, he could not be ordered to pay the same over again to Bhogilal (respondent No. 1) before me. Mr. Gumaste contended that, when the Collector made that payment to Nathu Lala, there was no dispute as to the title to receive the compensation in respect of the said 4 acres 11 gunthas, and in support of that contention he referred to the portion of the award dealing with 'Kabjedar Bhogilal Lalji Shah,' as well as to the portion thereof dealing with 'Kabjedar Nathu Lala,' neither of which, according to him, indicated the subsistence of any dispute in regard to the title to the 4 acres and 11 gunthas in question. I am afraid, I cannot accept that contention of the learned Government Pleader for the simple reason that, as stated by the said Bhogilal in his evidence in the lower Court, he had, immediately on receipt of the notice under the Act, represented to the authorities that the whole of the said Hissa No. 1 of S. No. 65 belonged to him, and had actually made an application dated January 28, 1961 to that effect, which was produced in the lower Court. The date of the award in the present case is March 81, 1962, and the said application had, therefore, been made over a year prior to the making of the award itself. There can, therefore, be no doubt whatsoever that a dispute in regard to the title to the said 4 acres and 11 gunthas did exist, even prior to the making of that award. Once there was such a dispute in existence, it was not open to the Special Land Acquisition Officer to make payment of the amount of compensation in respect of the said 4 acres and 11 gunthas to Nathu Lala, as he in fact did. To do so would be to overlook the concluding words of Sub-section (1) of Section 31 viz., 'unless prevented by some one or more of the contingencies mentioned in the next sub-section' one of which is, 'if there be any dispute as to the title to receive the compensation.' As soon as there is such a dispute, the Collector or the Special Land Acquisition Officer, as the case may be, is bound, under Sub-section (2) of Section 81, immediately on the making of the award, to deposit the amount of the compensation relating to the land in dispute in the Court to which a Reference under Section 18 would be submitted.
4. The learned Government Pleader, however, sought to rely on the third proviso to Sub-section (2) of Section 81 as showing that the only remedy of Bhogilal was against Nathu Lala.
5. There is, however, a clear answer to that contention of the learned Government Pleader which is provided by the scheme of Section 81 itself. A proper construction of the said section leaves no room for doubt that the third proviso to Sub-section (2) thereof applies only when a deposit has been made under Sub-section (2) to which that proviso is annexed. It is not a proviso to Sub-section (1) of Section 81 and if, therefore, the Collector chooses to make a direct payment under Sub-section (1) of Section 81 to one of the parties in accordance with his award, in spite of there being a dispute in regard to the title to the land, or a portion of it, proviso 8 to Sub-section (2) is not attracted at all. That is the view which was taken by a Division Bench of the Madras High Court in the case of Deputy Collector, Cocanada v. Maharaja of Pittapur A.I.R.  Mad. 492. What happened in that case was that the Deputy Collector had not obeyed Section 31 of the Land Acquisition Act, and instead of depositing in Court the amount to be apportioned, had paid over to the tenants the amounts awarded by him to them. The result was that for the Zamindar's share of the total compensation, the balance due to him was not available in Court for payment over to him, and the Government sought to rely on proviso 8 to Section 31(2) of the Act, and contended that the Zamindar must recover it from the tenants to whom it was paid in excess. Rejecting that contention, it was observed in the judgment of the Court that the Government was bound, prima facie, to supply the money required to pay each party the amount of the compensation due to him, and that proviso 8 to Section 31(2) had no application, because it came into operation when Section 31(2) itself had been obeyed and did not apply to a case of excess payment wrongly made by the Government. The Court stated that if the Referring Officer had obeyed Section 81 of the Act, the necessary money would have been there, and it was not right that Government should throw on a party whose property had been compulsorily acquired the risk and the burden of recovering the compensation from some one else to whom the Government had wrongly paid it. I agree fully with the observations made in the judgment in the said case and I, therefore, hold that proviso 3 to Sub-section (2) of Section 31 has no application to the present case in which the Special Land Acquisition Officer has purported to act under Sub-section (1) of Section 31 and has wrongly paid the amount directly to Nathu Lala instead of depositing the same in Court, as he was required to do in view of the pendency of the dispute relating to the title to the said 4 acres and 11 gunthas of land.
6. The learned Government Pleader, in the course of his arguments before me, relied upon three authorities, but I may state at once that two of them viz. the decisions in the cases of Satish Chandra Singha v. Ananda Gopal Das (1916) 20 C.W.N. 816 and Secy. of State v. Kuppuswami A.I.R.  Mad. 521 are of no assistance on the point which I am called upon to decide in this case and need not be dealt with by me at all. The third decision on which the learned Government Pleader relied was the decision in the case of K. M. K. B. M. K. Chettyar Firm v. The Secretary of State for India I.L.R. (1933) Rang. 344 where the proposition is laid down (at p. 350) that the Court cannot direct, when the Collector has paid out money under Section 31, that he should again pay out the same sum to someone else. If the judgment in the said case is perused carefully it, however, shows (at pp. 348-349) that there was no dispute before the Collector as to title to receive compensation and it was, therefore, held that, under the provisions of Clause (1) of Section 31, the Collector was bound to pay the money to the person who was entitled to the same under the award made by him. Chettyar's case is clearly distinguishable on facts, as, there being no dispute in regard to the title to the land, there was a statutory obligation incumbent upon the Collector to pay the same under Sub-section (1) of Section 31, and no question of his having had to deposit it in Court under Sub-section (2) of that section could possibly arise in that case. Mr. Mandrekar on behalf of Bhogilal relied upon the decision of a Division Bench of the Madhya Pradesh High Court consisting of Hidayatullah C, J. and Chaturvedi J. in the case of Hitkarini Sabha v. Jabalpur Corporation : AIR1958MP339 the facts of which were very similar to the facts of the present case. The decision in that case also was, as in the present one, that the Collector acted against the express provisions of Section 81 (2) in making the payment when there was a dispute as to who should receive the compensation money (para. 5). The dispute in that case was in regard to apportionment, and when a reference was made to the District Court under the Land Acquisition Act, the Additional District Judge felt that his jurisdiction was ousted by payment of compensation already made by the Collector, and he accordingly directed one of the two claimants to whom the disputed amount had been paid to deposit the same in Court before a particular date. The High Court was approached in Revision from that order, and it took the view (para. 7) that when the Collector was in error in making the payment when there was a dispute in regard to apportionment, the Courts must rectify the same so as to bring the action of the Collector in line with the statutory requirements, and it was open to the Reference Court, and even to the High Court, to order that the money be forthwith brought into Court 'as an interim measure.' As, however, the parties were agreed that the money could be left where it was on condition that it was invested in fixed deposit for a period of one year, the learned Judges of the High Court did not think it necessary to interfere in Revision. They, however, felt that the view of the learned Judge that he had no jurisdiction to hear the case in view of the wrong payment made to one of the parties was erroneous and they, therefore, directed the Additional District Judge to hear the case as early as possible. As already observed by me above, the facts of that case were very similar to the facts of the present case, with this difference which must, however, be pointed out, that the question in that case arose at an interim stage before the Reference was disposed of by the District Court, and the observation made in the judgment which has already been set out above, to the effect that where the Collector had erroneously made the payment to one of the parties when there was a dispute, the Court should rectify the same and bring the action of the Collector in line with the statutory requirements, must be read in the context of the situation as it prevailed in that case viz. 'as an interim measure' pending the disposal of the Reference on merits by the District Court. I am in full agreement with the view expressed by the learned Judges in the said case, but the question that I have to consider is whether I should take the same view in the present case in which the position is that the Reference has already been disposed of by the lower Court. I have no doubt that the lower Court itself should, before it disposed of the Reference, have called upon the Collector to bring the money into Court and bring his action in line with the statutory requirements of Sub-section (2) of Section 31 so that 'the necessary money would have been there' to abide the decision of the Court hearing the Reference, as observed by the Madhya Pradesh High Court in Hitkarini Sabha's case, and no question of passing an executable order or an order for payment would have arisen at all. The question, however, is, now that the stage of making such an interim order has passed, what should be the form of the order which I must make in the present case. In my opinion, there is no reason why, even at this stage, the Court should not ask the Special Land Acquisition Officer to rectify the mistake that has given rise to the difficulty in the present case and order him to do what he should have done in accordance with the statutory requirements of Section 31(2). In my opinion, the fact that in Hitkarini Sakha's case the question arose at an interim stage makes no difference to the applicability of the principle laid down therein even at the stage at which the question arises before me. There is also no reason why Nathu Lala who has wrongfully received payment of the sum of Rs. 2,388.80 in excess to which he was entitled should not be made to deposit the said sum in Court, as a necessary corollary to the principle which has been laid down in the judgment in Hitkarini Sabha's case to which I have already referred.
7. In the result, I hold that, for the reasons stated above, the order for payment made by the learned Judge of the lower Court directly against the Special Land Acquisition Officer is wrong and must be set aside. I, however, order that the Special Land Acquisition Officer do deposit the said sum of Rs. 2,888.80 in the lower Court on or before June 10, 1970. I direct that the amount so deposited be dealt with by the lower Court in the same manner in which it would have been dealt with if the deposit had been made by the Special Land Acquisition Officer in the Court on the making of the award in compliance with Sub-section (2) of Section 31. Respondent No. 1 Bhogilal will, of course, be entitled to interest at the statutory rate of 4 per cent. under Section 34 of the Land Acquisition Act on the said sum of Rs. 2,388.80 from the date on which possession of the land was taken by the Government, till the deposit directed by me is made by the Special Land Acquisition Officer in the lower Court.
8. I also order respondent No. 2 Nathu Lala to deposit in Court the sum of Rs. 2,888.80 which he has received in excess as aforesaid, on or before June 10, 1970, the said deposit, if and when made, also to abide the orders of the lower Court.
9. As far as costs of this appeal are concerned, the order of the lower Court has been set aside by me only because it is erroneous as a matter of form. In substance, what I have held is that the Special Land Acquisition Officer acted contrary to the statutory requirements of Sub-section (2) of Section 31 in making a direct payment to Nathu Lala, which has created all the difficulty in this case. Under the circumstances, I order that the Special Land Acquisition Officer do pay respondent No. 1's costs of this appeal. There will, however, be no order in regard to the costs of respondent No. 2 who has not appeared before me. Order accordingly.