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Sankatha Prasad Pande Vs. Brij Mohan Pandey - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1946All246
AppellantSankatha Prasad Pande
RespondentBrij Mohan Pandey
Excerpt:
- - kelianee is placed upon the case in best & co. best & co. 388 clearly supports this view......the plaintiff is entitled to a moiety share of the compensation awarded to the defendant under the land acquisition act and that the defendant be restrained from withdrawing that amount from the deposit in court.2. the plaintiff's case was that house no. k 61/67 in deonathpura in the city of benares belonged to one jokhan pande, who died issueless in 1925, and that this house devolved upon the plaintiff and the defendant, who are own brothers, in equal shares. this house was acquired under the land acquisition proceedings for the arya samaj but compensation in respect of the entire house was awarded to the defendant alone. the plaintiff had filed an objection to the award before the land acquisition officer but on a reference being made to the district judge it was summarily rejected by.....
Judgment:

Wali Ullah, J.

1. This is an appeal by the plaintiff and arises out of a suit for declaration that the plaintiff is entitled to a moiety share of the compensation awarded to the defendant under the Land Acquisition Act and that the defendant be restrained from withdrawing that amount from the deposit in Court.

2. The plaintiff's case was that house No. K 61/67 in Deonathpura in the city of Benares belonged to one Jokhan Pande, who died issueless in 1925, and that this house devolved upon the plaintiff and the defendant, who are own brothers, in equal shares. This house was acquired under the land acquisition proceedings for the Arya Samaj but compensation in respect of the entire house was awarded to the defendant alone. The plaintiff had filed an objection to the award before the Land Acquisition Officer but on a reference being made to the District Judge it was summarily rejected by the Judge by his order dated 26th April 1910. The suit was contested on various grounds but for the purpose of this appeal it is only necessary to state one plea taken in defence, namely that the order of the District Judge in the land acquisition proceeding dated 26th April 1940 was final and the matter could not be reagitated in civil Court. The Court of first instance found on all the issues in favour of the plaintiff and it gave him a declaration that he was entitled to a sum of Rupees 1028-13-9 out of the compensation money in respect of the acquisition of house No. K 61/67. A permanent injunction was also issued restraining the defendant from receiving the said share from the amount of compensation in deposit. On appeal by the defendant to the learned civil Judge, all other pleas in defence were given up and the only question argued before him was that the order of the learned District Judge dismissing the plaintiff's objection to the award was final and that the matter could not be reagitated by means of the present suit in the civil Court. Before proceeding further some relevant facts might be set out here. The award made by the Land Acquisition Officer (Ex. A) was given on 28th October 1938. Objections to the award were filed both by Sankatha Prasad, the plaintiff, and one Mt. Kulwanta on 19th December 1939 long after the expiry of six months from the date of the award. The Land Acquisition Officer forwarded the objections to the District Judge by means of the following order:

This application cannot be entertained here. This may be forwarded to the District Judge where the file is pending in reference.

The matter thus came before the District Judge, who dismissed the plaintiff's objections on the sole ground that they were time-barred. The present suit was instituted. This appeal came on for hearing before a learned Single Judge of this Court who has thought fit to refer it to a Bench of two Judges. The sole question which we have to decide in this appeal is whether the present suit was maintainable in view of the fact that the District Judge, on the reference made by the Land Acquisition Officer, dismissed the claim of the plaintiff as mentioned above. Learned Counsel for the appellant has strongly contended, in the first place, that there was no reference strictly so called by the Land Acquisition Officer (or Collector) under Section 18, Land Acquisition Act, and that, therefore, the order of the District Judge dated 26th April 1910 dismissing his claim cannot bar the present suit. Kelianee is placed upon the case in Best & Co. Ltd. v. Deputy Collector Madras ('17) 4 A.I.R. 1917 Mad. 824. In this case it was held that:

where a Land Acquisition Collector merely forwards to the Judge a statement of a claim preferred under Section 18, Land Acquisition Act (Act 1 [I] of 1894) with an expression of opinion that the claimant is not interested in the enquiry, he cannot be said to refer the case within the meaning of Section 19 of the Act. The proper remedy of the person aggrieved by such a proceeding is not to invoke the power of the High Court in revision, under Section 439, Criminal P.C., but to apply under Section 45, Specific Relief Act, for a writ of mandamus to enforce the reference.

In view of the facts and circumstances of that case it was held that the Land Acquisition Collector being of opinion that Messrs. Best & Co. Ltd., were not interested in the enquiry only forwarded their application and did not refer their case as he referred the case of National Bank of India. It is clear that on the finding that there was no reference made to the District Judge under Section 19 there was no bar to any fresh proceedings being started at the instance of the claimant whose case was not referred to the District Judge and was not decided by him. Our attention has also been invited to the case in Secy. of State v. Karim Bux : AIR1939All130 where a Bench of two learned Judges of this Court observed as follows:

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 would it impossible to hold that the Collector ever made a reference as contemplated by the Act.

The facts of that case were very different. In that case the order of the Collector which was attacked by means of the objections filed by Karim Bux was not the award made by him on 24th April 1929 under Section 11, Land Acquisition Act, in favour of the owner of the premises acquired, but it was an order passed by him on 28th October 1930 rejecting an application by Karim Bux on the ground that the application was time-barred and that an appeal should have been filed against the award. The learned Judges have made it clear in the course of their judgment that the order dated 28th October 1930 could not possibly amount to an award. It was in view of this feature of the case that it was held in that case that the Collector never made a reference to tie District Judge as contemplated by the Act. In the present case it must not be forgotten that the Land Acquisition Officer had already made a reference which was pending before the learned District Judge and when he received the application containing the objections of the plaintiff' to the award he passed a short and summary order forward-ling the same to the District Judge. In our opinion, in the circumstances of this case, the order forwarding the appellant's objection to the District Judge under Section 19, Land Acquisition Act, substantially complied with the requirements of the law and it must be held to be a proper reference made under Section 18, Land Acquisition Act. The observations of the Bench of this Court in Secretary of State v. Bhagwan Prasad : AIR1932All597 .

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.

would lend support to the view which we are inclined to take in this case. It has been strongly contended before us that the order of the District Judge rejecting the claim of the plaintiff, appellant on the ground that it was barred by time was entirely erroneous. Our attention has been drawn to the case in Secretary of State v. Bhagwan Prasad : AIR1932All597 , decided by two learned Judges of this Court where it was held that

after a reference has been made under the Land Acquisition Act it is not open to the Collector or the Secretary of State to say that the reference was wrongly made although the ground for saying so may be that the application by the owner was belated, i.e., in contravention of Section 18(2). The court does not sit on appeal over the Collector and the Act does not give any authority to the court either in express terms, or by implication, to go behind the reference and to see whether the Collector acted rightly or wrongly.

3. To the same effect is the decision of two learned Judges of this Court in Secretary of State v. Bhagwan Prasad : AIR1929All769 . It is, however, obvious that if the plaintiff-appellant was dissatisfied with the decision of the District Judge on the reference made to him he could and should have taken recourse to the remedy provided for in the Act He should have filed an appeal against the order of the District Judge. The question whether the District Judge gave a correct or incorrect decision is not one which can be raised at this stage by means of a separate suit. In Bhandi Singh v. Ramadhin Rai ('06) 10 C.W.N. 991 Bench of two learned Judges of the Calcutta High Court has discussed the entire scheme and scope of the Land Acquisition Act. Mookerjee, J., after an examination of the various provisions of the Act, has observed at p. 996 thus:

From this review of the principal provisions of the Act, three propositions are established beyond the possibility of dispute, namely, that the Statute creates a right in the Local Government to acquire land needed for public and other purposes, secondly, that it confers upon the private individual whose land is thus compulsorily acquired a corresponding right to receive compensation therefor, and thirdly, while the Act provides for a summary determination by the Collector of the area and the value of the land and of the apportionment of the compensation, it also provides for a judicial determination by a special civil Court of the measurement of the land, of the amount of the compensation, of the persons to whom it is payable, and of its apportionment among the persons interested. The question therefore arises whether under these circumstances, when statutory rights and liabilities have been created and jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, is such jurisdiction exclusive or is it concurrent with that possessed by the ordinary Courts In my opinion, such jurisdiction is exclusive and has to be exercised subject to the exception contained in the Statute itself.

4. The learned Judge has referred to the observations of Lopes L.J. in R. v. County Court Judge of Essex (1887) 18 Q.B.D. 704

that in the case of an Act which creates a now jurisdiction, a new procedure, new forms or new remedies, the procedure, forms or remedies there prescribed and no others must be followed.

Again at page 998 Mookerjee J. observes:

I must hold accordingly that in the case of a dispute as to the persons among whom the compensation is to be apportioned, or the extent of their interests, the Land Acquisition Judge and the ordinary civil Court have practically concurrent jurisdiction, by reason of proviso 3 to Section 31, Clause (2), read with Section 18 of the Act. This, however, necessarily leads to the position, that if a litigant has made his choice and availed himself of a reference to the Court under Section 18, he cannot again ask for an opportunity to litigate the same matter in the ordinary Court; the decision of the Judicial Committee in Raja Nilmoni Singh v. Ram Bundhu ('81) 7 Cal. 388 clearly supports this view. On the other hand, if there has been no reference to the Court under Section its, a suit would be maintainable for the adjudication of the rights of the claimants inter se, because Section 12 to which I have already referred makes the award of the Collector final and conclusive only as between himself on the one hand and the persons interested on the other and not as between the claimants inter se.

5. Substantially the same principle has been recognised in various cases particularly in the decision of the Judicial Committee in Raja Nilmoni Singh v. Ram Bundhu ('81) 7 Cal. 388, where at p. 39 a their Lordships have observed in relation to the proviso to Section 31, Sub-clause (2), Land Acquisition Act, that this proviso applies only to persons whose rights have not been adjudicated upon in pursuance of the Sections (38 and 39). Their Lordships decided that case with reference to the old Act, and the proviso contained therein but the proviso which their Lordships had to construe was word for word the same as the last proviso to Section 31, Sub-clause (2). In view of the authorities mentioned above, the position, therefore, is that it is optional with a party claiming apportionment either to apply for a reference under Section 18 or to institute a suit in the civil Court. In Bhandi Singh v. Ramadhin Rai ('06) 10 C.W.N. 991 the claimant had obtained a reference under Section 18 but on the matter coming before the Court in due course, it was struck off on his non-appearance. He then instituted a civil suit on the strength of proviso 3 to Section 31, Sub-clause (2). It was held that the party having once availed himself of one course of remedy, namely reference to the Court under Section 18, he could not again ask for an opportunity to litigate the same matter in the ordinary Court. Again in Chhedi Ram v. Ahmad Shafi ('33) 20 A.I.R. 1933 Oudh 100 the Oudh Chief Court has observed:

When jurisdiction has been conferred upon a special Court for investigation of particular matters such jurisdiction is exclusive. The Land Acquisition Act has enacted a special jurisdiction and provided a special remedy for persona aggrieved with anything done in the exercise of that jurisdiction. If a person having full opportunity of getting his rights adjudicated in accordance with the machinery provided by Section 18, disables himself from availing himself of it by accepting the compensation without any protest or, if for any other reason, he does not make the necessary application under Section 18, he cannot maintain his suit in the ordinary civil Court, and cannot reopen the question by asking to recover compensation, on the allegation, that it was wrongly paid to other persons. The contention, that it debars the plaintiff from making any claim against the Collector only, is not tenable. Reliance cannot be placed on Section 31(2) proviso, as the proviso must be given a limited application. A person who was a party to the apportionment proceedings, cannot, under that proviso be allowed to reopen the question by a regular suit.

6. In view of the authorities discussed above it is quite clear to our minds that the order of the District Judge dated 26th April 1940 dismissing the plaintiff's objection to the award was final and it was not open to the plaintiff-appellant to reagitate the same question by means of a suit in the civil Court. In this view of the matter, it is obvious that the view of law taken by the lower appellate Court was correct. The result is that the appeal is dismissed with costs.


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