1. A simple but an interesting question arises in this revision petition for consideration. It is whether the Land Acquisition Officer can withdraw a Reference as if he is the petitioner with regard to that Reference.
2. The claimant, Srimathi V. Chandramani Devi Garu, filed a petition on 11-5-1955 under the Land Acquisition Act before the Land Acquisition Officer, Vijianagaram alleging that the compensation was accepted by her under protest and Reference to the Civil Court may be made. The reference made on that representation had been filed in the Sub-Court, Visakhapatnam as O. P. No. 32 of 1955. While this O. P. was pending, the Land Acquisition Officer filed I.A. No. 125/55 in O. P. No. 32 of 1935 on 5-12-1955 purporting to be under Order XXIII Rule 1 and Section 151 C. P.C. praying that the reference made in O. P. No. 32 of 1955 may be allowed to be withdrawn or rejected as unnecessary, incompetent and untena-ble. In support of this application, the Land Acquisition. Officer alleged that it was wrongly mentioned that there was a protest by the claimant or by her agent prior to the receipt of the amount on 31-3-1955. The lower court by its order dated 4th July 1956 allowed the Land Acquisition Officer to withdraw the Reference. The present revision petition is filed against that order.
3. Mr. Reddi Pantulu for the revision petitioner has contested the order of the lower court mainly on the ground that the provisions of Order XXIII Rule 1 will not apply and that Section 151 C.P.C. cannot be invoked in this case. What is contested is that the Land Acquisition Officer is not a plaintiff nor is he in the position of a plain-tiff when a reference way made to the Court in respect of the compensation payable to a claimant, but on the other hand, has to be considered only as a defendant or in the nature of a defendant to an action instituted at the instance of the claimant. The implication is that though the power given to the Land Acquisition Officer to refer the matter to the Court is made use of for purposes of initiating the Reference nevertheless the claimant alone is the person that is enforcing the claim as against the Government and the Land Acquisition Officer is properly in the position of a person who is defending the action taken out against the Government. Support is sought by the learned counsel for this in the decision reported in Ezra v. The Secretary of State, ILR 30 Cal 36 wherein at page 89 it is stated that in a reference under the Land Acquisition Act, the claimant is to be re-graded as a plaintiff and the Government as a defendant. It is also found on a reference to Chapter VII Volume II of the Board's Standing Orders at page 206 the following:
'When a case has been referred to the civil court, the Collector should arrange for the de-fence of his award as if it were a suit against state Government.'
In regard to this position which the Land Acquisition Officer occupies while he is the referring Officer, it is necessary to investigate if there is anything going against this view in the provisions of the Land Acquisition Act. The scheme which provides for a reference at the instance of a claimant by the Land Acquisition Officer does not make the reference a claim or a complaint made by the Land Acquisition Officer, but he becomes only the condult pipe as it were to bring to the consideration of the Court disputes which involve a point or require elucidation from the Court. It is thus claimed that, all the time the reference is made, it is only on behalf of the claimant and it is the claimant alone that has to substantiate his or her contention that the compensation is inadequate and the value of the property is more and therefore the claimant is entitled to much more than is awarded by the Land Acquisition Officer. This also therefore seems to be in consonance with the view that though a Land Acquisition Officer has he choice to refer the matter to the court, he acts only on behalf of the claimant for that limited purpose and is not only precluded thereafter from being the defendant in that reference and defend the rights of the Government, but his role thereafter accords with that of the defendant.
4. Thus it is now argued by the learned counsel for the petitioner that the Land Acquisition Officer appearing in this proceeding viz. O. P. No. 32 of 1955 is only a defendant and therefore no application to withdraw the suit, as if he were the plaintiff, could be entertained or ordered when filed by him under Order XXIII Rule 1 or section 151 C.P.C. Order XXIII Rule 1 C.P.C. is in the following terms:
(1) 'At any time after the institution of the suit the plaintiff may, as against all or any at the defendants, withdraw his suit or abandon part of his claim.'
The language of the rule is unambiguous and cannot at all be taken to provide for withdrawal of a suit by a defendant. It is not even urged by the learned Government Pleader, rightly I should think, that this rule could be invoked. This contention of the petitioner in the instant case should therefore be upheld without any hesitation.
5. On the other hand, the learned Government Pleader maintains that the order of the lower court could be justified as being one in exercise of the power under Section 151 C.P.C. But such an argument, in my view, would be untenable, as what is denied to a defendant under Rule 1 of Order XXIII could not be resuscitated by invoking Section 151, C.P.C. It is such a use of that provisions that is objected to by a Division Bench consisting of Subba Rao, C. J. and Bhimasankaram J. in Gopalacharyulu v. Veeranna, : AIR1955AP142 . The following excerpt from than judgment at page 3 (of Andh LT (Civil)): (at p. 143 of AIR) need be extracted:
'We may premise the discussion by stating that it has been firmly settled that inherent power vested in Courts under Section 151 of the Code ot Civil Procedure cannot be invoked where the pro-cedure to be adopted in a particular ease or class of cases is expressly provided for by the Code. In such matters, the Court cannot act except under the conditions specified by the express provisions. In other words, a court cannot, under the guise of inherent power, extend the scope of a provision which imposes specific limitation.' The limitations therefore to which the inherent powers available to a Court under Section 151 C.P.C. make it clear that when the code gives power only to a plaintiff to withdraw a suit, the same powers cannot be conceded by any extension of this principle to the case of a defendant by the use or application of Section 151 C.P.C. This ground upon which the learned Govt., Pleader would support the order of the lower court therefore fails.
6. It is, however, pointed out by the learned Govt., Pleader that the matter dealt with by the lower court really concerns the question whether the claimant was competent to ask for a reference when as a fact it could be established that she had received the amount without a protest, and that this question of fact could, in any case, be made the subject matter of a preliminary issue in the reference itself. In other words, the contention of the learned Government Pleader is that the question whether the Court has jurisdiction to deal with the reference itself should be gone into at first at the initial stage and therefore if it decides that the reference is incomptent, it can certainly reject it on that preliminary point. No doubt, this contention so put has support in the decision reported in Kana Navanna Narayanappa Naidu v. Revenue Divisional Officer, Sivakasi, : AIR1955Mad23 . But then even in that reported case, a preliminary point has been heard and determined in the reference it-sett, but the reference as such has not been allowed to be withdrawn at the instance of the Land Acquisition Officer who, while contesting the reference, must be taken to be a defendant or acting on behalf of the defendant, viz., the Government. If this distinction is borne in mind, the present! order of the lower court allowing the Land Acquisition Officer to withdraw the reference becomes wholly unsustainable.
7. It follows that interference is called for and that the order of the court below should be set aside. The lower court is directed to restore O. P. No. 32 of 1955 to file and deal with it in accordance with law. The Civil Revision Petition is therefore allowed with costs.