Somnath Iyer, J.
(1) On April 15, 1952 the first appellant in this appeal obtained from Government a grant of 11 acres and 38 guntas of land which is situate in the village of Hebbyle in the District of Shimoga. The grant was made in form appendix E and to the printed conditions of the grant was added one more stipulation which was written in ink and which was to the effect that in the event of the Government requiring the land for any reason whatsoever, the grantee should surrender the land to the Government without claiming any compensation.
(2) On January 11, 1958, there was a notification published under S. 4 of the Land Acquisition Act proposing an acquisition of this land. By a further notification made under S. 17(4) Government dispensed with adherence to the provisions of S. 5A of the Act, and pursuant thereto possession of the land was also taken from the appellants. It should be mentioned here that the second appellant is the undivided brother of the first appellant.
(3) When the appellants preferred a claim for the payment of compensation, the Land Acquisition Officer refused to award any compensation to them on the ground that under the terms of the grant made in the year 1952, the grantee was under a duty to surrender the land to Government without claiming any compensation. The appellants then sought a reference to the District Court which affirmed the view taken by the Land Acquisition Officer that the claimants were not entitled to any compensation.
(4) The claimants appeal.
(5) It should be mentioned that although the Land Acquisition Officer did not award any compensation for the land, he awarded a sum of Rs. 1,495/- for the improvements claimed to have been made to the acquired property by the claimants.
(6) The short question in this appeal is whether the condition in the grant which was made in favour of appellant 1 precludes the appellants from claiming compensation when their property was acquired under the Land Acquisition Act. In my opinion, it does not.
(7) It would be necessary in the first instance to refer to the relevant provisions of the Land Acquisition Act. Section 4 provides for the publication of the preliminary notification. Section 5A directs the bearing of objections to the proposed acquisition. Section 6 provides for a final declaration of the intended acquisition. Section 9 which is the next relevant section enjoins the Deputy Commissioner among other matters, to issue a notice to all persons interested in the land proposed to be acquired to appear before him and to state the nature of their interests in the land and the compensation claimed by them. Section 10 confers power on the Deputy Commissioner to requisition additional information as to whether any other persons have any interest in the land or any part of the land. Section 11 which is the next important section directs the Deputy Commissioner to make an award which should contain according to the provisions of that section the following particulars:
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii)the apportionment of the said compensation among all the persons interested in the land, of whom or of whose claims, he has information, whether or not they have respectively appeared before him.
The words occurring in this section are that 'the Collector shall proceed to enquire into objections (if any).... and shall make an award under his hand'. Section 15 which is the next relevant section reads:
'In determining the amount of compensation, the Collector shall be guided by the provisions contained in Ss. 23 and 24.'
(8) It should be pointed out here that S. 23 enumerates the matter to be considered for the determination of the compensation, and one of those matters is the market value of the land at the date of the publication of the notification under Sub-section (1) of S. 4.
(9) What therefore emerges from these provisions of the Act is that once there is a final notification under S. 6, it is the clear duty of the Deputy Commissioner who made the acquisition to issue a notice for the production of a statement in which should be stated the compensation claimed. After the production of that statement, it is again the duty of the Deputy Commissioner to make an enquiry under S. 11 and then make an award, and that award should state the compensation which, in the opinion of the Deputy Commissioner, should be allowed for the land.
(10) It is not disputed that the acquired property was required by Government for a big Hydro Electric Project known as the Sharavati Hydro Electric Project. If the Government had decided to enforce the condition of the grant and had called upon the grantees to surrender the land for the use of the Government for that purpose, whether the appellants before us would have been able to claim any compensation notwithstanding the term in the grant to the contrary, is a question which would have naturally arisen for consider. But since the Government did not elect to adopt that procedure but commenced proceedings under the Land Acquisition Act and obtain possession of the acquired property from the appellants under those statutory provisions, the question is whether it was possible for the Land Acquisition Officer in the land acquisition proceedings in the course of which possession was taken in that way, to deny to the claimants any compensation at all, although compensation was claimable under the provisions of the Act by the claimants.
(11) It seems to me that once a proceeding is commenced under the Land Acquisition Act, every step enjoined by that Act must be taken and every relevant statutory provisions contained in that Act must be obeyed. This is not a case in which the Government sought to enforce the condition of the grant even if it was enforceable. On the contrary, what was done by the Government was to keep aside that condition of the grant and to start proceedings under the Land Acquisition Act without reference to that condition which had no relevance in proceedings under the Act. Once a land is proposed to be acquired, the power exercised is the power available from the Act, and that power can be exercised only in the manner permitted. If an acquisition proceeding was started, it was incumbent on the Acquisition Officer conducting the acquisition to make an award it was his duty to determine the compensation payable and that compensation should be determined in manner specified in S. 15 and should be paid. If the claimant is dissatisfied with the determination of the compensation, he has a right to ask for a reference to the Court under S. 18 and the court is under a duty to determine the compensation by the employment of the process specified in S. 23. At no stage of these proceedings can any question arise whether by reason of any other independent contract between the Government and the claimant, the claimant could be refused the compensation the payment of which is directed by the Act. For the purpose of land acquisition proceedings, any such contract would have no relevance and cannot defeat the statutory right to compensation.
(12) The view that I take receives support from the decision of the House of Lords in Attorney General v. De Keyser's Royal Hotel, Ltd. 1920 AC 508. That was a case in which the Crown, purporting to act under the Defence of the Realm Regulations, took possession of a hotel for the purpose of housing the headquarters personnel of the Royal Flying Corps, and denied the legal right of the owners to compensation. The owners yielded up their rights, and by a petition sought a declaration that they were entitled to rent for the use and occupation of the premises or in the alternative to compensation under the Defence Act, 1842. The House while repelling the claim to rent for use and occupation, pronounced that the Crown had no power to take possession of the hotel in right of its prerogative simpliciter without the payment of compensation and that the suppliants were entitled to the compensation claimed by them. On page 549 of the report, Lord Moulton said this:
'There could henceforward be no doubt that the Crown possessed the powers formulated in the Regulations, and this was the object of the legislation. But when the Crown elects to act under the authority of a statute, it, like any other person, must take the powers that it thus uses cum onere. It cannot take the powers without fulfilling the condition that the statute imposes on the use of such powers.'
(13) If therefore the source of power of divesting the claimants of their possession of the property was the Land Acquisition Act and that law enjoins the payment of compensation for the acquisition made its provisions, the process by which the claimants are divested of the land is not that permitted by the conditions of the grant but that provided by that law. Once the Land Acquisition Officer obtained delivery of possession of the property under the Act as he did in this case, it was after that stage not permissible for the Government even to withdraw from the acquisition, as can be seen from the provisions of S. 48 of the Act. The power of the Government once there was taking of possession under the provisions of the Act, to withdraw from the acquisition and to enforce the conditions of the grant came to an end and it became incumbent on the Land Acquisition Officer to complete the acquisition according to the provisions of the Act.
(14) A similar view was expressed by the High Court of Madras in State of Madras v. Parisutha Nadar, 1961-2 Mad L J 285.
(15) But unfortunately neither the Land Acquisition Officer nor the Civil Judge determined the compensation payable to the claimant. They appear to have thought that that determination became unnecessary on account of the condition subject to which the grant was made and which it was believed precluded the claimants from claiming any compensation.
(16) What, in my opinion, we should therefore do is to set aside the decision of the Civil Judge and to remit the matter back to him so that he may now proceed to determine the compensation payable to the claimants and proceed to dispose of the matter according to law. It is ordered accordingly.
(17) The court-fee paid on this appeal will be refunded, and the appellants will be entitled to their costs in this Court.
Govinda Bhat, J.
(18) I agree.
( 19) Case remanded.