1. The petitioners are some of the residents of village Komapalli within the Municipality of the Berhampur town. The deity Shri Baidyanadhe-swaraswami, installed in that village, owned some lands which were the subject-matter of a land acquisition proceeding conducted by opposite party No. 1 as Collector under the Land Acquisition Act (1 of 1894). Before opposite party No. 1, the petitioner, amongst some other villagers, claimed to be entitled to the compensation on behalf of the deity, whereas opposite party No. 2 was the rival claimant. The Land Acquisition Collector, after an elaborate enquiry, decided in favour of opposite party No. 2 and against the petitioners.
The petitioners, on the very day the award was passed, filed a petition under Section 18 of the Land Acquisition Act, requiring a reference of the matter for determination of the Court (Court of the District Judge). The Collector rejected the petition observing:
'After making due enquiry under Ss. 9 and 10 of the L. A. Act, I came to the finding that) these objectors (petitioners and other members of the party) are not persons interested in this property under acquisition. Therefore the question of making a reference to Civil Court on the requisition of these objectors does not arise.'
The Collector also rejected the petitioners' incidental prayer to withhold payment of compensation under the award to opposite party No. 2. It is against the aforesaid order of the Collector that the present writ petition has been filed by the petitioners. One of the prayers in the writ petition was to stay payment of compensation to opposite party No. 2 or direct payment thereof on terms and any remedy on that score has now become infructuous, since the compensation has long since been paid.
The other prayer is to set aside the order of the Collector under Section 18 of the Land Acquisition Act refusing to make a reference, and to issue him a direction to make the required reference. Incidentally, it may be noted that though in the body of the writ petition this was the main grievance of the petitioners, in the prayer portion of the petition, the relief sought on that score was not quite explicit, and so the petitioner's learned counsel was allowed, at the time of hearing, to clearly State the relief prayed for.
2. It may be noted at the outset that if a Collector declines to make a reference under Section 18 of the Land Acquisition Act, there is no provision in the Act to compel him to do so, and so the petitioners are entitled to any appropriate remedy in a writ petition. It was held in Samanta Radha v. Province of Orissa, AIR 1952 Orissa 98:
'It is fairly well settled now that an order passed by the Collector, while acting under the Land Acquisition Act is not an order of a Court subordinate to this High Court and that his order is not open to revision under Section 115, C. P. C. Under Article 227 of the Constitution, however, the High Court hay got the power of superintendence over all Courts and Tribunals within its jurisdiction and the Collector, exercising his powers under the Land Acquisition Act, is such a Tribunal. Where, therefore, an order of the Collector refusing to make a reference to the Court of District Judge under Section 18(1) of the Land Acquisition Act is manifestly opposed to law and results in great injustice to a party, it is incumbent on the High Court to rectify the mistake and to afford relief to the party under Article 227 of the Constitution.'
3. Now coming to the merits of the case, Section 18 of the Land Acquisition Act provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Section 18 further provides that the application so made shall state the grounds on which objection to the award is taken and the time limits within which such an application is to be made.
If the conditions under Section 18 of the Land Acquisition Act are fulfilled, that is, if the petitioner is a person interested, he has not accepted the award, the application has stated the grounds of objections and it is within time, then the Collector is bound under the provisions of Section 18 to make the reference. The language of the section is that the petitioner may require the Collector to make the reference, and so there is no discretion of the Collector in the matter, if the conditions are fulfilled. It was observed in Jagamath Lall v. Land Acquisition Dy. Collector, Patna, AIR 1940 Pat 102:
'The wording of Section 18(1) leaves the Collector no alternative but to refer the matter if the application is made within time prescribed by the section and is not barred by proviso 2 of Section 31 of the Act. (The proviso is that no person who has received the amount otherwise than under protest shall be entitled to make an application under Section 18). It follows therefore that the Land Acquisition Dy. Collector has no right whatsoever to refuse to refer the matter on the ground that the objections to the award were not bona fide and were frivolous.'
Mr. Ramdas' contention on behalf of opposite party No. 2 is that under Section 18 of the Act, the Collector has jurisdiction to decide if a person is interested and if he finds that he is not interested he is competent to reject the prayer for references and that in the present case the Collector decided rightly since he had already found that the petitioners had no claim. According to Section 3(b) of the Land Acquisition Act, the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act.
When the petitioners filed their claim (which was subsequently enquired into and rejected by the Collector), they came within the aforesaid definition of 'person interested', and the Collector could not, because of his own finding against them, take them away from the category of 'person interested'. If for the purpose of Section 18 of the Act, the Collector is to depend upon his own finding whether a particular claim made before him was genuine, and he refused to refer on the ground that the claim was' not genuine, then the very provisions of the section will become nugatory. It has been held in Kako Bai v. Land Acquisition Collector, Hissar, AIR 1956 Punj 231:
'It is not open to the Collector to decide an application under Section 18 on merits of the objections raised therein and then refuse to refer the matter to Civil Court. All that the Collector can do is to decide whether the formalities, laid down in Section 18 have been complied with or not.''
Mr. Ramdas sought to urge that under Section 3(b) of the Land Acquisition Act, the expression 'person interested' includes only those persons who rightfully claim an interest in the compensation and not the frivolous claimants. The wording of Section 3(b) of the Act does not warrant such an interpretation. Accordingly, I hold that the Collector acted illegally in refusing to make the reference.
4. Mr. Ramdas sought to argue that since the compensation money taken by opposite party No. 2 has been deposited in a safe bank on behalf of the deity, the Court should not exercise its discretionary jurisdiction and should leave the petitioners to establish their rights, if any, in a proper suit. Authorities have been of divergent opinion as to if a suit is at all maintainable by a defeated claimant who has not sought his remedy under Section 18 of the Act. Apart from that, resort to a civil suit would be more difficult and costly process for the petitioners. When the Collector has exercised his jurisdiction illegally and the Land Acquisition Act provides no specific remedy against such illegal exercise of jurisdiction, relief through a writ is the proper remedy.
5. I may lastly observe that the learned Advocate-General who appeared on behalf of the opposite party No. 1 fairly and frankly conceded that the order of opposite party No. 1 was illegal and could not be supported.
6. In the result, the petition is allowed with costs against opposite party No. 2 and the order of the Land Acquisition Collector refusing to make the reference is set aside, and he is directed to make the necessary reference in accordance with the provisions of Section 18 of the Land Acquisition Act, to the District Judge. Hearing fee Rs. 100 (Rs. One hundred only).
7. I agree.