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Baru Mal JaIn and ors. Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 322 of 1958
Judge
Reported inAIR1962All61
ActsLand Acquisition Act, 1894 - Sections 3, 11, 12 and 12(2)
AppellantBaru Mal JaIn and ors.
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateShanti Bhushan, Adv.
Respondent AdvocateS.N. Kacker, Adv.
DispositionPetition allowed
Excerpt:
.....or administrative order acts under instructions from other and does not exercise his independent judgment the order is liable to be quashed (see mahadayal v. such a procedure is clearly against the principles of natural justice (see d. of income-tax, madras [1959]37itr151(sc) ). the second award is bad on this ground also. 8. before parting with the case i would like to point out that the procedure adopted by the land reforms commissioner was not only illegal but highly improper. secretary of state, (air 1936 pesh 217). when the act does not give the land reforms commissioner any power to interfere he cannot do so even under the cover of paras 430 and 497 of the manual of government orders which are no better than departmental instructions and have no statutory force having no..........acquiring the plots mentioned above were started and notifications under sections 4 and 6 of the land acquisition act (hereinafter referred to as the act) were issued, and proceedings for payment of compensation were also started. the land acquisition officer, who in this particular case is not the collector and district magistrate of muzaffarnagar but a deputy collector, held an enquiry under section 11 of the act and not only prepared but also signed an award. purporting to act under section 12(2) of the act as amended by u. p. as also under paras 430 and 497 of the manual of government orders of u. p. in the revenue department, the land acquisition, officer sent a copy of the award to the land reforms commissioner, u. p., and a letter to the tahsildar, muzffarnagar, who is the.....
Judgment:

Jagdish Sahai, J.

1. It is not necessary to narrate all the allegations made in the affidavit, the counter-affidavit, the supplementary affidavit and the rejoinder-affidavit filed in this case. For the purposes, of the decision of this petition the following admitted facts alone are material:-

2. The petitioners were the owners of certain plots of land measuring 5 bighas and 5 biswas situated in the Civil Lines of the town of Muzaffarnagar. On the request of the respondent No. 4 the District Exhibition Committee, Muzaffarnagar (hereinafter called the Committee), proceedings for acquiring the plots mentioned above were started and notifications under Sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as the Act) were issued, and proceedings for payment of compensation were also started. The Land Acquisition Officer, who in this particular case is not the Collector and District Magistrate of Muzaffarnagar but a Deputy Collector, held an enquiry under Section 11 of the Act and not only prepared but also signed an award. Purporting to act under section 12(2) of the Act as amended by U. P. as also under paras 430 and 497 of the Manual of Government Orders of U. P. in the Revenue Department, the Land Acquisition, Officer sent a copy of the award to the Land Reforms Commissioner, U. P., and a letter to the Tahsildar, Muzffarnagar, who is the ex-officio Secretary of the Committee (hereinafter referred to as the Secretary) directing him to deposit Rs. 18,000 and odd as the cost of the land in dispute.

The Secretary wrote back to the Land Acquisition Officer saying that the amount was excessive and should be reduced. The Land Reforms Commissioner, U. P., also asked the Land Acquisition Officer to review his award and to reduce the amount of compensation payable to the petitioners. At first the Land Acquisition Officer wrote back saying that the petitioners had filed copies of sale deeds from which it was apparent that adjoining plots of land had been sold at the rate of Rs, 3/8/-to Rs. 12/- per square yard whereas compensation had been awarded to the petitioners at the rate of Rs. 1/4/- per square yard only and further that no evidence had been produced on behalf of the respondent No. 4 which could have thrown any light on the value of the petitioners' land which was sought to be acquired. The Land Acquisition Officer also pointed out that in some cases in the vicinity of the land in dispute land had been sold at the rate of Rs. 40/- to Rs. 56/- per square yard. That did not however satisfy the Land Reforms Commissioner who persisted in asking the Land Acquisition Officer to reframe the award with the result that the Land Acquisition Officer yielded and gave an altogether fresh award dated 24-12-1957 drastically reducing the amount of compensation.

3. The only two questions that require consideration in this case are, firstly, whether after having given his award but before it was filed under Section 12 of the Act, it was open to the Land Acquisition Officer to review or revise the earlier award and substitute it by a completely fresh one and, secondly, whether he could do so on the instructions of the Land Reforms Commissioner or at the request of the Secretary. Learned counsel for the parties have stated that no other question is involved in the case.

4. Under the provisions of Section 8 of the Ace the land which is sought to be acquired has got to be marked out and measured. Thereafter under Section 9 of the Act notices have got to be issued to all the persons interested in receiving compensation for the land which is sought to be acquired. Under the provisions of Section 10 the Collector has been given the power to require any person to make or deliver to him at any time and place a statement containing, so far as may be practicable, the names of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise and of the nature of such interest and of the rents and profits, (if any) received or receivable on account thereof for three years next preceding the date of the statement. After the Collector has issued notices under Section 9 and also, if asked for, received the statements and the names as contemplated by Section 10, he has to make an enquiry under Section 11 of the Act. Section 11 of the Act reads as follows :

'11. Enquiry and award by Collector.--On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, Sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-

(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 known or believed to be interested in the land, of whom or of whose claims, he has information whether or not they have respectively appeared before him.' After that is done he is required to file the award under Section 12 of the Act. Section 12 of the Act reads as follows :

'12. Award of Collector when to be final,--

(1) Such award shall be filed in the Collector'soffice and shall, except as hereinafter provided, befinal and conclusive evidence, as between the Col-lector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land and the apportionment of the compensation among the persons interested

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.'

A perusal of Section 11 along with Section 12 of the Act clearly reveals that an award becomes final only after it has been filed in the Collector's office. It may also be noticed that Section 11 does not specifically require the award to be dated. In fact it is not clearly mentioned therein that it should also be signed though the expression 'under his hand' occurring in that section may lead to the inference that he has to sign, the award. It cannot be denied that proceedings under the Act for awarding compensation are administrative in their nature. Even if they were judicial (by now it has been held in several decided cases that they are not) there would be no bar to the Land Acquisition Officer tearing out or destroying an award which he had written out and signed.

Such a view was taken by the Bombay High Court in the case of Kooverbai Sorabji v. Asstt. Collector, Surat, 59 Ind Cas 429 : (AIR 1920 Bom 265). The Supreme Court in the case of Surendra Singh v. State of U. P. : 1954CriLJ475 was called upon to decide as to whether an opinion written out on behalf of a Bench of this Court and signed by one of the Judges constituting the Bench could be validly pronounced after he had died by the other learned Judge who constituted the Bench. On the ground that until the judgment was pronounced it was open to the learned Judge who had written and signed it to change his mind, the Supreme Court held that that document was a mere opinion and could not be treated to be a valid judgment. From this decision it is clear that till that particular act which gives a judgment or order final solemnity is not performed the judgment or order even though, written and signed can be changed.

The requirement of Sections 11 and 12 of the Act is that after an award is made the same has got to be filed in the Collector's office and once that is done it becomes final. In the present case it cannot be said that the Land Acquisition Officer had not given the touch of finality to his award made earlier because not only he wrote it out and signed it but he also issued a notice calling upon the respondent No. 4 to deposit a sum of Rs. 18,000 and odd and further sent information to the Land Reforms Commissioner, U. P. as required by Section 12(2) of the Act and Paras 430 and 497 of the Manual of Orders of the Government of U. P. in the Revenue Department. In other words he not only prepared the award but also acted upon it with the result that the award was finally made as contemplated by Section 11 of the Act. It is true that an officer can after writing out and signing an award change his mind and destroy it but this can be done only up to a particular stage i.e., before it is filed. In the present case he not only prepared, signed and filed the award but also took further steps to implement it. To my mind in these circumstances, he has no power left to change the award. If that view were not to be taken disputes between parties could never be finally settled.

There is a difference between the writing out and signing of an award and making an award. Making of an award presupposes a final determination to decide the dispute in a particular manner. Making an award may include the process of writing out and signing the award but so long as the mind has not been finally determined and the process of consideration is still going on the signatures must be held to be provisional and it cannot be said that the award has been made. On the facts of the present case I am satisfied that the earlier award had been made under Section 11, It is true that in connection with Section 18 of the Act there is some conflict of opinion as to when an award would be deemed to have been made. We are however not concerned with Section 18 of the Act in the present case.

5. The next question to consider is whether the award was filed in the Collector's office as required by Section 12 of the Act. The expression 'Collector's office' has given me some difficulty, The question for consideration is whether the words ''Collector's office' denote the collectorate i. e., the office attached to the Collector and District Magistrate or it includes the office of the Land Acquisition Officer performing the functions of the Collector. The word 'Collector' has been defined in the Land Acquisition Act as follows:-

Section 3(c). The expression 'Collector' means the Collector of a district, and includes a Deputy Commissioner and any officer specifically appointed by the appropriate Government to perform the functions of a Collector under this Act.'

The definition clearly discloses that any person other than the Collector or the Deputy Commissioner of a district can also be appointed to perform the functions of the Collector under the Act and that person will also be deemed to be a Collector for purposes of the Act. That being so it must be held that the expression 'Collector's office' also includes the office of the Land Acquisition Officer. Learned counsel has placed reliance upon the definition of the word 'Collector' occuring in the U. P. General Clauses Act. There is good authority for the proposition that the provisions of the General Clauses Act do not apply when a particular statute deals with the matter (see Smt. Hira Devi v. District Board, Shahjahanpur : [1952]1SCR1122 ). In the present case the earlier award was put on the file of the case and acted upon by issuing notices to the Secretary as also to the Land Reforms Commissioner, U. P. It must therefore be held that it was filed within the meaning of Section 12 of the Act.

It is true that the position with regard to the two awards in this case is the same. If one of them will be deemed to have been filed in the office of the Collector the other must also be deemed to have been filed there. However in view of the fact that in my opinion the first award had become final and it was no longer in the power of the Land Acquisition Officer to have changed it the second award must be held to have been given without jurisdiction.

6. The next point that requires consideration is whether the second award given by the Land Acquisition Officer was at his own instance or under the pressure or advice of the Land Reforms Commissioner. In fact it is not really necessary to go into this question in view of my finding that the second award is without jurisdiction. However in view of the, fact that this order of mine is appealable and the point has been raised at the bar I think it proper to deal with it though only briefly. It is well established that if an authority called upon to pass a judicial, quasi-judicial or administrative order acts under instructions from other and does not exercise his independent judgment the order is liable to be quashed (see Mahadayal v. Commercial Tax Officer : (1958)ILLJ260SC ). In that case their Lordships of the Supreme Court observed as follows :-

'From the detailed narration of the facts regarding this particular assessment it is quite clear that the first respondent did not exercise his own judgment in the matter of the assessment in question. Even though he was convinced to the contrary, he asked for the instructions of the Assistant Commissioner (C. S.) and followed the same and assessed the appellants to sales tax in respect of the disputed transactions. The order which he ultimately passed on 15th January, 1955, further showed that he was merely voicing the opinion of the Assistant Commissioner (C. S.) without any conviction of his own and the only thing he had to say in regard to the various grounds mentioned in the letters dated, 21st November, 1953 and 19th June, 1954, was that they appeared to him to be not at all satisfactory. This was hardly a satisfactory way of dealing with the matter. If the Assistant Commissioner (C. S.) had been dealing with the same he could have by all means given in the assessment order which he made his reasons for doing so and these reasons would have been open to scrutiny in further proceedings taken by the appellants either by way of appeal or otherwise ........

We are really surprised at the manner in which the first respondent dealt with the matter of this assessment. It is clear that he did not exercise his own judgment in the matter and faithfully followed the instructions conveyed to him by the Assistant Commissioner (C. S.) without giving the appellants an opportunity to meet the points urged against them. The whole procedure was contrary to the principles of natural justice. The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the Sales Tax Department concerned. We would have, simply on this ground, set aside the assessment order of the first respondent and remanded the matter back to him for his due consideration, in accordance with law.'

7. In the case of Samiullah v. Collector of Aligarh , their Lordships of the Privy Council emphasised the importance of the awards being made by Land Acquisition Officers under Section 11 on the basis of their own judgment and not even on the agreement of the parties. In the present case it is clear that the Land Acquisition Officer abdicated his functions, in favour of the Land Reforms Commissioner. It has been contended by Mr. Kacker the learned counsel for the respondent No. 4 that the subsequent award of the Land Acquisition Officer would show that he had applied his own mind to the facts of the case and even though a suggestion had been received from the Land Reforms Commissioner the Land Acquisition. Officer did not surrender his judgment to that of the Land Reforms Commissioner. Mr. Kacker has also filed a supplementary affidavit along with a true copy of the award dated 24th December, 1957. I am unable to agree that the Land Acquisition Officer set aside the earlier award on the basis of his own judgment.

I have already mentioned above that not only he wrote out and signed his first award and further sent notices to the respondent No. 4 and the Land Reforms Commissioner but also replied back to the Land Reforms Commissioner that his award was a correct one and he had no reason to change it. It is only later on when pressure was brought upon him that he changed his mind. Considering the circumstances of this case I have no hesitation in rejecting the suggestion that the subsequent award was made by the Land Acquisition Officer exercising his own judgment without having been dictated to by the Land Reforms Commissioner. It also appears that the Land Acquisition Officer received some fresh material on the record at the time of preparing the second award without giving the petitioners an opportunity to meet that material. Such a procedure is clearly against the principles of natural justice (see D. C. Mills Ltd. v. Commissioner of Income-tax, West Bengal, (S) AIR 1955 SC 65 and Omar Salay Mohd. v. Commr. of Income-tax, Madras : [1959]37ITR151(SC) ). The second award is bad on this ground also.

8. Before parting with the case I would like to point out that the procedure adopted by the Land Reforms Commissioner was not only illegal but highly improper. There is no provision in the Act under which he could have issued directions to the Land Acquisition Officer to change his award. It is true that there are some paragraphs of the Manual of Orders of the U. P. Government under which the Land Reforms Commissioner can make suggestions. Similar paragraphs or rules have been held to be ultra vires by several High Courts in this country (see Dossabhai Bejanji v. Special Officer, Salsette Building Sites, ILR 36 Bom 599, Katherasan v. Special Collector, Twante, AIR 1936 Rang 206 and Sujan Singh v. Secretary of State, (AIR 1936 Pesh 217). When the Act does not give the Land Reforms Commissioner any power to interfere he cannot do so even under the cover of paras 430 and 497 of the Manual of Government Orders which are no better than departmental instructions and have no statutory force having no statutory foundation. The Land Reforms Commissioner should have realised that he was a superior officer to the Land Acquisition Officer who was only a Deputy Collector and if he interfered in the manner in which he has done it would become impossible for the Land Acquisition Officer to exercise his own judgment and not to be swayed by what the Land Reforms Commissioner told him. Acts like these are likely to lead the public to lose confidence in land acquisition proceedings and the Land Reforms Commissioner should realise this.

9. The result is that the petition is allowed and the subsequent award i.e. the one dated 24th December, 1957, is quashed. A writ of mandamus is also issued commanding the Land Acquisition Officer to take proceedings under Section 12 of the Act in respect of the first award. In the circumstances of this case I direct the parties to bear their own costs.


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