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Smt. Sugandhi Widow of Dammulal and ors. Vs. Collector, Raipur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 539 of 1966
Judge
Reported inAIR1969MP78; 1968MPLJ766
ActsLand Acquisition Act, 1894 - Sections 2, 3, 9, 11, 12, 13, 18 and 31; Madhya Pradesh Adaptation of Laws Order, 1956 - Sections 18 and 18(3); Constitution of India - Article 226;
AppellantSmt. Sugandhi Widow of Dammulal and ors.
RespondentCollector, Raipur and ors.
Appellant AdvocateJ.V. Jakatdar, Adv.
Respondent AdvocateK.K. Dube, Adv. (fore No. 1) and ;G.C. Koshal, Adv. (for Nos. 4 and 5)
DispositionPetition allowed
Cases ReferredState of Puniab v. Mt. Qaisar Jehan Begum
Excerpt:
- - it must, therefore, be held that the additional collector acted in excess of jurisdiction in refusing to make the reference on a wholly extraneous consideration not germane to section 18. 5. but it is argued on behalf of the respondents that the writ petition should fail as the petitioners had an alternative remedy of revision which they failed to exercise. 14,15 para 4-in the circumstances of this case, we are satisfied that it would not be a sound exercise of discretion to refuse interference simply because the petitioners did not adopt the alternative remedy of revision......application under section 18 of the act was dismissed by the additional collector (also called land acquisition officer) on 30th march 1966 on the sole ground that the appropriate remedy for the applicant was to file a suit as pointed out by the high court in m. p. no. 254 of 1963. dammulal died in the meantime and the petitioners, who are his heirs and legal representatives, have filed this petition under articles 226 and 227 of the constitution for having the order rejecting the application under section 18 quashed by this court.2. the first contention raised on behalf of the petitioners is that the additional collector, who dismissed the application under section 18 was not appointed by the state government to perform the functions of a collector under the land acquisition act.....
Judgment:

Singh, J.

1. This petition under Articles 226 and 227 of the Constitution arises on the following facts. In Revenue Case No. 13-A/82 of 1961-62 certain area out of plot No. 2/11 of Madhopara. Raipur was acquired for the purposes of the Telegraph Department under the Land Acquisition Act, 1894. On 13th May, 1963 an award of Rs. 55,135.60 P. as compensation was published by the Additional Collector, Raipur and on 12th June, 1963, the entire amount was paid to one Birdhichand Jain who received the same on behalf of his wife Smt. Radhabai who claimed to be the sole owner of the land. One Dammulal, who also claimed exclusive ownership of the acquired area, applied to the Collector on 26th July, 1963 that although he alone was entitled to the land, there was wilful and mala fide omission on the part of the authorities to give him notices of the acquisition proceedings under Sections 9(3) and 12(2) of the Act and, therefore, the entire proceedings were null and void. Dammulal also filed a petition under Article 226 of the Constitution in the High Court, being M. P. No. 254 of 1963, praying that the entire acquisition proceedings be quashed.

This petition was dismissed on 22nd December, 1965 mainly on the ground that the allegation of wilful omission to issue notices could more properly be investigated in a civil suit. Without prejudice to his right to challenge the validity of the entire acquisition proceedings, Dammulal had also applied on 7th November, 1963 to the Collector, Raipur for a reference under Section 18 of the Act. In this application he claimed to be the sole owner of the acquired land and, therefore, alone entitled to the whole of the compensation; further, he disputed the quantum of compensation and claimed that instead of Rs. 55,135-60 P., the proper compensation of the land should be fixed at Rs. 1,65,406-80 P. This application under Section 18 of the Act was dismissed by the Additional Collector (also called Land Acquisition Officer) on 30th March 1966 on the sole ground that the appropriate remedy for the applicant was to file a suit as pointed out by the High Court in M. P. No. 254 of 1963. Dammulal died in the meantime and the petitioners, who are his heirs and legal representatives, have filed this petition under Articles 226 and 227 of the Constitution for having the order rejecting the application under Section 18 quashed by this Court.

2. The first contention raised on behalf of the petitioners is that the Additional Collector, who dismissed the application under Section 18 was not appointed by the State Government to perform the functions of a Collector under the Land Acquisition Act and, therefore, he could not act as a Collector and dismiss the application. The jurisdiction to act under Section 18 is conferred on the Collector which expression is defined by Section 2(d) to mean the Collector of a district and to include 'a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector'. The question for consideration is whether the Additional Collector is an officer specially appointed under Section 2(d) to perform the functions of a Collector. In the Mahakoshal region of the State, under the revenue laws previously in force, the Revenue Officers new styled as Collectors and Additional Collectors were known as Deputy Commissioners and Additional Deputy Commissioners. By Revenue Department Notification No. 5103-4622-XII of 22nd September, 1950, the Government of the then State of Madhya Pradesh appointed all the Additional Deputy Commissioners to perform the functions of a Collector under the Land Acquisition Act.

After the re-organisation and formation of the new State in 1956, uniformity in nomenclature of revenue officers was achieved by Para 4-A of the Madhya Pradesh Adaptation of Laws Order, 1956, (as amended in 1957) made under Section 120 of the States Reorganisation Act, 1956 which reads as under:

'Whenever an expression mentioned in column (1) of the table hereunder printed occurs in any law in force in the Mahakoshal region immediately before the appointed day, then there shall be substituted therefor the expression set opposite to it in column (2) of the said table, and there shall also be made in any sentence in which the expression occurs such consequential amendments as the rules of grammar may require.'

TABLE

(1)(2)

'Deputy Commissioner. .. Collector.

Additional Deputy Commissioner,. Additional Collector.

Assistant Commissioner .. Assistant Collector.

Extra-Assistant Commissioner.. Deputy Collector.'

By virtue of the aforesaid provision the expressions Deputy Commissioner and Additional Deputy Commissioner in 'any law in force' in Mahakoshal region were replaced by the expressions Collector and Additional Collector. In the adaptation order, as provided in Para 2 (d), the word law has the same meaning as in Section 2(b) of the States Reorganisation Act, 1956 which defines 'Law' as follows:

' 'Law' includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having the force of law in whole or any part of the territory of India'.

By reading this definition in Para 4-A of the Adaptation Order, the alteration of the designation of the revenue officers directed by that Para is to be made not only in enactments but also in orders and notifications having the force of law. It has already been noticed that by notification No. 5103-4622-XII of 22nd September, 1950 all Additional Deputy Commissioners in the Mahakoshal region were appointed to discharge the functions of a Collector under the Land Acquisition Act. This notification was issued under Section 2(d) of that Act and has the force of law and is a 'law in force' within the meaning of that expression as it occurs in Para 4-A of the Adaptation Order. After the Adaptation Order, the notification will therefore be read to mean that all Additional Collectors in the Mahakoshal region were authorised to discharge the functions of a Collector under the Land Acquisition Act. By Section 3 of the Madhya Pradesh Extension of Laws Act, 1958, the Land Acquisition Act, 1894, as in force in the Mahakoshal region, was extended to all the other regions of the State. It is possible to hold that the notification empowering the Additional Collectors to perform the functions of a Collector as in force in the Mahakoshal region was a part and parcel of Section 2(d) of the Land Acquisition Act and was extended to the whole of the State. Be that as it may, so far as the instant case, which arises from the Mahakoshal region, is concerned, there is no difficulty. Having regard to the notification of 1950 and Para 4-A of the Adaptation Order it must be held that the Additional Collector, Raipur was empowered to discharge the functions of a Collector under the Land Acquisition Act and had jurisdiction to decide the application under Section 18 of the Act.

3. Then it is contended that the award in the instant case was made by the Collector and, therefore, the application for reference under Section 18 should have also been decided by him and not by the Additional Collector. This contention is factually wrong. On 22nd April, 1963, the Additional Collector made the award and as the compensation fixed exceeded Rs. 10,000/-, he submitted it to the Collector for approval. This procedure was required by the Executive Instruction No. 80, which occurs at page 60 of the Land Acquisition Manual. The award was approved by the Collector on 11th May 1963. After the file was received back by the Additional Collector, he declared the award on 13th May, 1963 and directed issue of notices. Simply because the award after it was made by the Additional Collector, was sent to the Collector for obtaining his approval in pursuance of the Government instructions, it cannot be said that the award was made by the Collector. Having regard to Sections 11 and 12 of the Land Acquisition Act it must be held on the facts of this case that the award though approved by Collector was made by the Additional Collector who decided the application under Section 18 of the Act.

4. Next it is urged that the ground on which the application under Section 18 was dismissed was wholly extraneous to that provision. It has already been mentioned that the Additional Collector dismissed the application for reference on the sole ground that the proper remedy for the petitioners was to file a suit as held by the High Court in Smt. Sugandhi v. Collector, Raipur, MP No. 254 of 1963 D/- 22-12-1965 (MP). Reference by the Additional Collector to the order of the High Court in the earlier writ Petition was really unfortunate. That petition had nothing to do with the right of the petitioners to claim a reference under Section 18 of the Act. In that petition the entire acquisition proceedings were challenged as invalid and void on the ground that notices of the proceedings were wilfully suppressed and in that connection it was said by this Court that as the petition raised questions of fact the proper remedy was to file a civil suit. Section 38 provides a statutory remedy to a person interested who has not accepted the award and if an application be made within limitation requiring a reference, the Collector has no choice and is bound to make the reference. The Section is mandatory; Kajari Lal v. Union of India, AIR 1966 SC 1538 at p. 1541 Para 12. The Section gives no option to the Collector to refuse to make the reference on the ground that the person applying for reference should file a suit. It must, therefore, be held that the Additional Collector acted in excess of jurisdiction in refusing to make the reference on a wholly extraneous consideration not germane to Section 18.

5. But it is argued on behalf of the respondents that the Writ Petition should fail as the petitioners had an alternative remedy of revision which they failed to exercise. It is true that under the Madhya Pradesh Amendment of Section 18, any order passed by a Collector under that Section is revisable by the High Court. But the provision of an alternative remedy does not take away the jurisdiction of the Court under Article 226 of the Constitution. As has so often been said and has quite recently been reaffirmed, the rule that an aggrieved person should exhaust all statutory remedies before he claims interference under Article 226 is not a rigid rule of law but merely a matter of discretion of the High Court; Collector of Central Excise and Land Customs Shillong v. Sanawarmal Purohit CA Nos. 1362 and 1363 of 1967 D/- 16-2-1968 = 1968 SC (Notes) 104.

In the instant case, the question whether the Additional Collector who passed the impugned order had the authority to function as Collector was itself doubtful and therefore the petitioners could not have been sure of the remedy of revision which is available against an order of Collector. The writ petition was filed within the period of limitation allowed for a revision application. The impugned order of the Additional Collector is patently in excess of jurisdiction. The remedy of revision, which the petitioners did not avail of, is not a remedy of right and does not ordinarily bar interference under Article 226: Bharatlal v. Land Acquisition Officer, Mahasamund, MP No 345 of 1964 D/-28-1-1965 = 1965 MP LJ (Notes) 131; Collector of Customs, Cochin v. A.S. Bava, AIR 1968 SC 13 pp. 14,15 Para 4-In the circumstances of this case, we are satisfied that it would not be a sound exercise of discretion to refuse interference simply because the petitioners did not adopt the alternative remedy of revision.

6. It is then argued that the petitioners were not noticed under Ss, 9 and 12 of the Land Acquisition Act and therefore they are not entitled to claim a reference under Section 18. There is no substance in this contention. Section 18 does not provide that a reference can be claimed 9nly by a person who has been served with notices under Sections 9 and 12. Any person interested who has not accepted the award has a statutory right if he applies within limitation to require the Collector to refer his objections to the Court. The expression 'person interested' is defined in Section 3(b) of the Act to include all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act. This definition also does not require that a person to come within the definition of 'person interested' must be one who is noticed under Section 9 or Section 12. The fact of notice may affect the question of limitation within which an application for reference should be made under Section 18, but in our view it has nothing to do with the eligibility of a person for making the application. In Shivdev Singh v. State of Bihar, AIR 1963 Pat 201 at p. 206 it was held by a Bench of the Patna High Court that a person even if not served with a notice under Section 9 can apply for a reference under Section 18. Indeed, in State of Puniab v. Mt. Qaisar Jehan Begum, AIR 1963 SC 1604 where the question dealt with was one of limitation under Section 18(2), reference was claimed and was allowed at the instance of a person who had not at all been given any notice of the acquisition proceedings. We, therefore, reject the argument that the petitioners were not entitled to apply for a reference as they were not noticed under Section 9 or Section 12 of the Act.

7. It is further argued for the respondents that as the petitioners made the application under Section 18 after the entire compensation amount determined by the award had been paid to Smt Radhabai, who was a rival claimant, they were not entitled to claim a reference to the Court. There is no merit in this argument. As enacted in Section 31, a person who receives the amount of compensation without protest disentitles himself for applying for a reference under Section 18. The reason is plain; for in such a case it would be said that the person taking payment without protest has accepted the award. But, the disability arising from acceptance of the compensation is limited to the person who receives the compensation. Other persons interested who dispute the award and who apply within limitation under Section 13 cannot be shut out in having their objection investigated by a Civil Court on the ground that the compensation amount was paid to a rival claimant before the application under Section 18 was made. The petitioners were thus not debarred in claiming the reference simply because the compensation amount had been paid to Radhabai.

8. Lastly it is urged that the petitioners have already filed a civil suit for challenging the entire acquisition proceedings on the ground of wilful suppression of notices and this fact also disentitles them to claim a reference under Section 18. The question whether the entire acquisition is invalid is wholly outside the scope of Section 18 and a reference under that Section is limited to quantum and apportionment of compensation. The question raised in the civil suit will not be triable in the reference and conversely questions raised in the reference will not be triable in the Civil Suit. The petitioners who challenge the entire acquisition proceedings in the civil suit have also a statutory right to claim the determination of their obiections as to the quantum of compensation and apportionment by a reference under Section 18 of the Act on the footing that acquisition proceedings are valid. In our view that right conferred by statute is not lost simply because the petitioners are seeking by a suit nullification of the entire acquisition proceedings.

9. In the result, this petition succeedsand is allowed. The order of the Additional Collector, dated 30th March 1966,dismissing the application under Section 18 isquashed and he is directed to determinethat application according to law. Thepetitioners will have their costs of thispetition from the respondents Nos. 3 to6. Counsel's fee Rs. 100/-, if certified.


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