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Secretary of State Vs. Karim Bux - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1939All130
AppellantSecretary of State
RespondentKarim Bux
Excerpt:
- - counsel for the appellant had to admit that it might well be that karim bux's objection was overlooked and his claims never considered. however, that course is not necessary to this case because we are satisfied upon other grounds which we have already mentioned that no valid reference was ever made in this case. for the reasons which we have given, we are satisfied that there was no valid reference in this case, and therefore the decision of the improvement trust cannot be sustained......over on the terms of the original tenancy. on 15th march 1928 the respondent appeared before the land acquisition officer and filed objections to the acquisition which are printed at page 1 of the paper-book. in those objections he stated that he was in occupation of part of the premises to be acquired and that in consequence of the acquisition he would suffer serious loss amounting to about rupees 19,000 odd. on 17th march 1928 the land acquisition officer ordered that the objection be put up with the file. on 24th april 1929, the land acquisition officer made an award in favour of mohammad hasan, the owner of the property, and in this award no mention whatsoever is made of karim bux'g objection and nothing was given to him. in september and october 1929 the collector took possession.....
Judgment:

Misra, J.

1. This is a first appeal brought by the Secretary of State for India in Council against a decision of the Allahabad Improvement Trust Tribunal, dated 6th October 1932, awarding to the respondent a sum of Rs. 11,174 as compensation for the compulsory acquisition of the respondent's interest in certain property.

2. In the year 1927 notice was given by the Local Government to acquire certain premises and a large enclosure owned by Mohammad Hasan and situate at No. 10, Mirgunj, Allahabad. In part of these premises the respondent, Karim Bux, resided and in another portion he carried on the, business of manufacturing steel trunks. It would appear that Karim Bux had previously held under some former lease; but such had expired, and the most that can be said of his rights at the time of the notice is that he was holding over on the terms of the original tenancy. On 15th March 1928 the respondent appeared before the Land Acquisition Officer and filed objections to the acquisition which are printed at page 1 of the paper-book. In those objections he stated that he was in occupation of part of the premises to be acquired and that in consequence of the acquisition he would suffer serious loss amounting to about Rupees 19,000 odd. On 17th March 1928 the Land Acquisition Officer ordered that the objection be put up with the file. On 24th April 1929, the Land Acquisition Officer made an award in favour of Mohammad Hasan, the owner of the property, and in this award no mention whatsoever is made of Karim Bux'g objection and nothing was given to him. In September and October 1929 the Collector took possession of the property on behalf of the Improvement Trust. On 24th October 1930 the respondent, Karim Bux, presented an application praying that his objections or application of 15th March 1928 be taken up and disposed of. This document is printed at pages 23 and 24 of the paper-book. Upon this application the Land Acquisition Officer passed an order on 28th October 1930 in these terms:

The tenant was dispossessed from the building more, than a year ago. He should have filed an appeal within the fixed period. Nothing can be done now. Rejected. File.

3. On 29th October 1930, the respondent applied for copies of this order, and on 11th November 1930 copies were supplied to him. On 17th December 1930 the applicant made an application which is printed at p. 2 of the paper-book. This application is headed 'before the Tribunal, Improvement Trust, Allahabad, through the Land Acquisition Officer, Allahabad.' It was sent to the Land Acquisition Officer and the office made a report which is printed at page 3 of the paper-book. This application appears to have been treated as an application for reference to the Tribunal, and on 17th December 1930 the Land Acquisition Officer directed it to be forwarded to the Tribunal. On 12th January 1931 notice was issued by the Tribunal to the Secretary of State for India, and in duo course a written statement was filed, issues framed, and the matter heard by the Tribunal. After a considerable body of evidence had been taken, Mr. Zahur Ahmad, the Chairman of the Tribunal, wrote a draft judgment on the questions of law and fact which had arisen and sent the judgment to his two colleagues for their perusal and approval. One of his colleagues, Hafiz Ghazanfarullah, returned the judgment on 19th September 1932 requesting the President to give his opinion as to the amount of compensation which he thought should be given. In the draft judgment the Chairman had not indicated what he considered to be the correct amount of compensation to be awarded. The Chairman, Mr. Zahur Ahmad, then wrote an addition to his judgment in which he stated that the amount of compensation which should be awarded was Rs. 11,174. He again forwarded the draft judgment to his colleagues, Hafiz Ghazanfarullah and Mr. M.D. Jaiswal. On 29th September 1932 Hafiz Ghazanfarullah noted that in the opinion of himself and his colleague it was premature to give judgment in the case, and he points out that the plaintiff had applied to have a witness recalled and they could not understand why this objection had been rejected. They further thought that the evidence of the owner, Mohammad Hasan, would be valuable in determining the case. Hence he thought that the case was not ripe for judgment without this further evidence. Mr. Jaiswal on 30th September 1932 was also of the same opinion. He points out that the question of procedure was a matter to be regulated entirely by the President; and that being so, he was unable to offer any opinion at that time. Mr. Zahur Ahmad did not communicate further with his colleagues and on 6th October 1932 he signed the judgment which is now under appeal, awarding to the respondent Rs. 11,174.

4. On behalf of the appellant, it has been argued that the Tribunal had no jurisdiction whatsoever to award the respondent anything in this case. It is said that the proceedings did not arise out of an award made under the Land Acquisition Act and that in the circumstances no valid reference could be made to the Tribunal. As we have stated earlier, the award of the Land Acquisition Officer was made on 24th April 1929, and by this award a certain sum was given' to the owner, Mohammad Hasan, and nothing was given to the present respondent, Karim Bux. There is no mention of Karim Bux's claim in this award and there is nothing upon the record to show whether Karim Bux's objections and claims were considered at all. Counsel for the appellant had to admit that it might well be that Karim Bux's objection was overlooked and his claims never considered. Be that as it may, the Land Acquisition Officer made his award and by that award Karim Bux received nothing. There can be no doubt that Karim Bux, if he was aggrieved by this award, could have asked the Collector under Section 18, Land Acquisition Act, to make a reference to the Tribunal. However he did not do so, and in fact did nothing until a year after possession of the premises was taken on behalf of the Allahabad Improvement Trust. On 24th October 1930 he applied that his original application should be heard and disposed of, and as we have stated the Land Acquisition Officer on 28th October 1930 ordered that nothing could be done and that an appeal should have been filed.

5. The respondent then sent to the Land Acquisition Officer on 17th December 1930 the document printed at p. 2 to which we have referred. It is clear from the heading of this document that it was intended to be a demand for a reference under the Land Acquisition Act and was addressed to the Tribunal of the Improvement Trust, through the Land Acquisition Officer. In this document the respondent mentions that he had been residing at No. 10, Mirgunj, Allahabad, and that he had filed a claim for Rs. 18,950 as compensation on various grounds. He states that the Land Acquisition Officer made an award on the claim of the owner, Mohammad Hasan, but made no award or passed any order on the claim of the applicant. He then goes on to say that on 28th October 1930 he had applied to the Land Acquisition Officer to pass orders on his application, but that such application had been summarily rejected and no orders passed on the merits of the claim. The respondent concludes by saying that the Land Acquisition Officer was wrong in holding that the application was filed after the period of limitation because no order had yet been passed on the claim of the applicant by the Land Acquisition Officer. For these reasons the applicant; prayed that the order of the Land Acquisition Officer dated 28th October 1930, should be set aside and that the Tribunal should exercise its inherent powers in giving the respondent relief and quashing the illegality committed by the Land Acquisition Officer. As we have stated the Land Acquisition Officer or the Collector made no order of reference in the true sense of the word and only directed that this application should be forwarded to the Tribunal. It is clear therefore that what the respondent was challenging in this case was not the award of the Land Acquisition Officer, dated 24th April 1929, but the order of the Land Acquisition Officer, dated 28th October 1930, summarily rejecting his claim. It has been argued on behalf of the appellant that the order of 28th October 1930 could not be made the subject of a reference and that the Tribunal had no jurisdiction whatsoever to entertain the respondent's claim.

6. Section 11, Land Acquisition Act, 1894, provides that where objections are made to the compulsory acquisition of any property, the Collector must enquire into such objections and make his award. This award must deal with the value of the land, including all interests in it, and then he must apportion the amount awarded between the various persons interested in it. Section 12 provides that the award must be filed and notice given to all interested parties. Section 16 empowers the Collector to take possession of the property, and Section 18 provides that any person, who does not accept the award, can demand a reference upon certain specific points. It is argued on behalf of the appellant that if the respondent had a grievance he should have applied under Section 18 to the Collector for a reference upon the ground that no portion of the compensation awarded had been given to him. On the other hand, there is no document upon the record to show that the respondent had notice of the award of 24th April 1929, although from Karim Bux's evidence it is fairly clear that he knew of these proceedings. He stated in evidence:

I made an application, dated 15th March 1928, to the Compensation Officer but no order was passed thereon. I made the application in 1928 but I received no order. I received information that the case of Nanhey Khan alias Muhammad Husain Khan was going on. On getting this information I made another application on 24th October 1930 on which the Compensation Officer passed an order on 28th October 1930.

7. It is also to be observed that the applicant was ejected from the premises a year before his second application of 24th October 1930; and it is therefore reasonable to assume that he was aware that Mohammad Hasan's claim had been entertained. However, as we have pointed out, there is no document to show that he did have notice of the award. It may be that if Karim, Bux, who claimed an interest in this property, did not receive notice of the award such award may not be a valid and binding one; but even so that cannot help the respondent in this case. Had the respondent received notice of the award his proper course would have been to demand a reference to the tribunal under Section 18, Land Acquisition Act. Assuming that there was no valid award at all, his proper course would have been to call upon the Collector to make an award and challenge that award, if necessary, by means of a reference. What the respondent did however was to challenge the order of the Land Acquisition Officer summarily dismissing his application upon the ground that an award had been previously made and that such award should have been challenged. He treated the order of 28th October 1930 as an award and claimed a reference in respect of it.

8. In our judgment, the order of 28th October 1930 cannot possibly amount to an award. It is in short a refusal to entertain the respondent's claim upon its merits. Section 11, Land Acquisition Act, sets out what should be contained in an award; and it is clear that the order of 28th October 1930 in no way complies with terms of that Section. From the terms of the order itself it is clear that the Land Acquisition Officer slid not intend to make an award and in fact he in terms states that an award had already been made and that the matter could not be re-opened. As this order of 28th October 1930 does not amount to an award no valid reference could be made; and therefore the Tribunal had no jurisdiction to entertain the matter. It has been argued on behalf of the respondent that the alleged reference made by the Land Acquisition Officer in this case should be treated as a reference made in respect of the original award, dated 24th April 1929. But it is very difficult to consider the reference made is being in any way connected with the award of 24th April 1929. The complaint made is that the Land Acquisition Officer was wrong in rejecting the respondent's claim on 28th October 1930 without going into the merits and the tribunal is asked to exercise its inherent powers and quash that order and do justice. It is urged that we should construe these documents liberally. But even so it is impossible to regard the alleged reference in this case as a reference challenging anything in the award made on 24th April 1929.

9. It has also been argued that the order of the Land Acquisition Officer, dated 28th October 1930, summarily rejecting the applicant's claim is an award. But it has to he admitted that it is not an award upon the merits; it is a summary rejection of the claim. We are asked to construe this order is an award giving the applicant no compensation. But in our view the order does not mean that. It means that an award had already been made and that as the applicant had not challenged that award he had no other remedy. In our judgment it is impossible no treat the order of 28th October 1930 as an award. There is also a further difficulty in treating the order of 28th October 1930 as an award which could be made the subject-matter of a reference to the tribunal under Section 18, Land Acquisition Act. It is clear from the terms of Section 11 and the succeeding Sections that the Collector must, when he makes his award, take into account the interest of all parties. He must assess the total amount of compensation and apportion it between the various persons interested. The Act does not contemplate a series of awards in respect of the same property. The total amount of compensation must be assessed and then apportioned. If any person claiming an interest in the property is not given anything by apportionment his remedy is to claim a reference challenging the award and not to ask for another award in his favour. The position therefore is that if the award of 24th April 1929 is a valid and binding award, the respondent cannot ask this Court to treat the order of 28th October as a further award. If the award of 24th April 1929 is for some reason not binding then in our view there is no valid and binding award in this case which can be made the subject-matter of a reference. In whatever manner the matter is looked at the tribunal had no valid reference before it upon which it could adjudicate.

10. It has also been contended on behalf of the appellant that even assuming there was something which amounted to an award, the application of the respondent, dated 17th December 1930, is not an application fore reference. Section 18, Land Acquisition Act, empowers a person who has not accepted an award to require the Collector to refer to the tribunal any objection to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the amount of compensation to persons interested. Section 19 deals with the form of reference which the Collector has to make; and it is clear that neither Section 18 nor Section 19 was complied with in this case. What the respondent asked for was that the Court should exercise its inherent powers, quash the illegal orders of the Land Acquisition Officer and give such relief as it deemed just. Such matters are not within the purview of Section 18, Land Acquisition Act. All that the Land Acquisition Officer did with regard to this application was to direct that it should be forwarded to the tribunal. He made no reference in the true sense of the word. Had the application substantially complied with Section 18, we would have been inclined to hold that forwarding to the tribunal would amount to a reference by the Collector. But in the circumstances of this case we find it impossible to hold that the Collector ever made a reference as contemplated by the Act.

11. It has further been argued by the appellant that even if the order of 28th October 1930 summarily rejecting the respondent's application be regarded as an award, yet the respondent could not demand a reference because his application of 17th December 1930 was out of time. The proviso to Section 18, Land Acquisition Act, requires a person who was present before the Collector when he made his award to claim his reference) within six weeks from the date of the Collector's award. It is common ground that the applicant was present when the Land Acquisition Officer passed his order of 28th October 1930; and that being so, he had six weeks to apply for a reference. He did not make his application until 17th December 1930; and it is contended that it was therefore out of time. Before the Tribunal it was argued that the time taken to obtain copies of the order, namely from 29th October 1930 to 11th November 1930, should be excluded for the purposes of computing the period of six weeks; and the -President following a case in the Burma High Court held that such time should be excluded. This Court has taken a contrary view in Kashi Prasad v. Notified Area of Mahoba : AIR1932All598 which followed the case in Nafis-ud-din v. Secy. of State (1927) 14 A.I.R. Lah. 858. Before us it was not contended that the time taken to obtain copies of the order should be excluded in computing the time within which a reference must be made. On behalf of the respondent however it was argued that even if the application for a reference was out of time, it was now too late to raise the question. It was contended that the Collector is the solo judge of whether an application requiring a reference is or is not within time; and once he has made a reference the question cannot be further raised. Reliance was placed on two cases of this Court, namely Secy. of State v. Bhagwan Prasad : AIR1929All769 and Secy. of State v. Bhagwan Prasad : AIR1932All597 . In these two cases it was undoubtedly i held that where a person, who has not accepted an award, makes a time-barred application to the Collector under Section 18, Land Acquisition Act, and the Collector makes a reference no objection on the ground that the application to refer was time barred can be made to the Tribunal or to an Appellate Court hearing an appeal from such Tribunal. Other High Courts have taken a contrary view and there is a sharp conflict of opinion upon this question. Had it been necessary to decide this case purely on this point, we should have been inclined to refer the matter to a larger Bench. However, that course is not necessary to this case because we are satisfied upon other grounds which we have already mentioned that no valid reference was ever made in this case.

12. We might observe at this stage that the Chairman of the Tribunal dealt at length in his judgment with the question of notice to the respondent. He appears to have thought that the respondent did not receive proper notice; but it is clear from the respondent's own evidence that he had ample notice of these proceedings. Section 9, Land Acquisition Act, contemplates a public notice and a special notice sent to persons interested. The Chairman of the Tribunal appears to have thought that the respondent did not receive this special notice. But his evidence makes it clear that he must have received such a notice. He stated : 'Five or six years ago a notice was received for the acquisition of this house.' Later he says:

When I came to know, that is I received a notice, that this entire land was going to be acquired, I began to construct the house in Hammam.

13. Again, towards the end of the evidence he stated:

When notice began to be received from the Improvement Trust I came to know that the house was going to be acquired then.

14. These statements coupled with the fact that the applicant filed an objection on 15th March 1928 claiming a large amount of compensation makes it clear that he had ample notice that the property was to be compulsorily acquired. Even if a special notice was not received by the applicant such would not assist him if he had in fact sufficient notice of the proposed acquisition : see Ganga Ram Marwari v. Secy. of State (1903) 30 Cal. 576 and Kasturi Pillai v. Municipal Council, Erode (1920) 7 A.I.R. Mad. 417. In our view the respondent had a notice in this case; consequently he has no complaint upon that ground. For the reasons which we have given, we are satisfied that there was no valid reference in this case, and therefore the decision of the Improvement Trust cannot be sustained.

15. The appellant has taken a further point that the decision of the Tribunal in this case is not a valid and binding one because it was not made in accordance with law. By the provisions of the United Provinces Town Improvement Act, 1919, references under the Land Acquisition Act are made in Allahabad to a Tribunal consisting of a President or Chairman and two other members. The President is the sole judge of law and procedure; but on questions of fact such as the amount of compensation to be awarded to any particular person the opinion of the majority of the members if to prevail. The relevant Section is Section 64, U.P. Town Improvement Act, 1919, the material portion of which is in these terms:

For the purpose of determining the award to be made by the Tribunal under the Land Acquisition Act, 1894,

(a) if there is any disagreement as to the measurement of land, or the amount of compensation or costs to be allowed, the opinion of the majority of the members of the Tribunal shall prevail;

(b) questions relating to the determination of the persons to whom compensation is payable, or the apportionment of compensation, may be tried and decided in the absence of the assessors if the President of the Tribunal considers their presence unnecessary;

and, when so tried and decided, the decision of the president shall be deemed to be the decision of the Tribunal.

16. It is common ground in this case that the assessors sat with the President throughout; and that therefore all questions relating to measurement of land, the amount of compensation, costs and questions relating to the determination of persons to whom compensation was payable or the apportionment of compensation had to be decided in accordance with the opinion of the majority of the members of the Tribunal. As we have stated earlier in this judgment, Hafiz Ghazanfarullah and Mr. Jaiswal could not come to any decision as to the amount of compensation on the materials before them and the judgment under appeal contains only the opinion of the President. It has been argued however on behalf of the respondent that there was no disagreement in this case because all that the assessors did was to decline to give an opinion on the materials before them. In our judgment however there was a disagreement because neither of the assessors would agree that the amount of compensation suggested by the Chairman was the correct amount. They wished to hear further evidence before they assessed the compensation and without such further evidence they were unable to agree with the Chairman. It is true that matters of procedure are to be regulated by the Chair, man and the proper course for the Chairman to have taken in this case would have been to inform the assessors that he ruled that no further evidence should be admitted and then call upon them to state the amount of compensation which they thought should be given upon the evidence as it then stood. The Chairman did not; follow this course, but proceeded to assess the compensation himself. As there was a disagreement in this case the President; could not assess the compensation and on that ground also the decision under appeal cannot be sustained. Had this been the only ground for challenging the decision we should have ordered that the decision be set aside and the matter sent back to the Tribunal to be determined according, to law. However as we have found that, there was no valid reference whatsoever in this case the matter cannot be sent back to be determined in accordance with the-provisions of Section 64, U.P. Town Improvement Act.

17. Lastly, it was argued on behalf of the appellant that the amount of compensation in this case was grossly in excess of what should have been awarded. The Chairman of the Tribunal appears to have assumed that the respondent had a substantial interest in the property. The evidence adduced before the Tribunal was of a very vague character; but in our opinion it is-unnecessary to go into this question because we hold that the Tribunal had no power whatsoever to assess any compensation. Further, we do not wish to prejudice the respondent in any future proceedings which, he might be advised to take by saying anything in this judgment as to the amount o compensation. There is authority for the proposition that where a Collector refuses to entertain a claim under the Land Acquisition Act a claim may be made in the Civil Courts : see Rameswar Singh v. Secy. of State (1907) 34 Cal. 470 at p. 484. Counsel for the respondent has specifically asked us not to deal with this question of' the amount of compensation because his client might be advised to bring a suit in. the Civil Court; and in such an event any observations made by us might prejudice him. In these circumstances we are of opinion that it is unnecessary for us to consider the argument addressed to us by the counsel for the appellant as upon the amount of compensation awarded.

18. For the reasons which we have given, we hold that the Tribunal had no jurisdiction to award any compensation to the respondent in this case; and that being so, the decision of the Tribunal cannot be sustained. We therefore allow this appeal, set aside the decision of the Tribunal and dismiss the respondent's claim. The respondent must pay the costs of this appeal and of the proceedings before the Tribunal.


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