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Narayan Das Vs. Kasinath Pani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 25 of 1965
Judge
Reported inAIR1968Ori84
ActsLand Acquisition Act, 1894 - Sections 3(6), 11, 18, 18(3) and 30; Code of Civil Procedure (CPC), 1908 - Sections 115; Orissa Land Acquisition Act, 1948
AppellantNarayan Das
RespondentKasinath Pani and ors.
Appellant AdvocateRanjit Mohanty and ;R.K. Kar, Advs.
Respondent AdvocateJ.K. Mohanty and ;K.C. Mohanty, Advs.
DispositionRevision allowed
Cases ReferredSamanta Radhaprasanna v. Province of Orissa
Excerpt:
.....1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the land acquisition officer in his order dated 29-12-64 held that the petitioner failed to establish that he had any interest in the acquired property. ' in this case, all the conditions of section 18 have been satisfied......1.01 acre was acquired. the petitioner claimed the entire disputed land as belonging to him. the land acquisition officer negatived his claim and held that the opp. parties were entitled to compensation. the award was prepared and signed on 12-12-64. on 15-12-64 the petitioner filed an application praying that the matter may be referred by the collector to the district judge for determination of the person to whom the compensation is payable. the land acquisition officer in his order dated 29-12-64 held that the petitioner failed to establish that he had any interest in the acquired property. the revision is filed against this order refusing to make a reference under section 18 of the land acquisition act, 1894 (hereinafter referred to as the act).2. mr. ranjit mohanty contended that.....
Judgment:
ORDER

G.K. Misra, J.

1. The disputed land measuring 1.01 acre was acquired. The petitioner claimed the entire disputed land as belonging to him. The Land Acquisition Officer negatived his claim and held that the opp. parties were entitled to compensation. The award was prepared and signed on 12-12-64. On 15-12-64 the petitioner filed an application praying that the matter may be referred by the Collector to the District Judge for determination of the person to whom the compensation is payable. The Land Acquisition Officer in his order dated 29-12-64 held that the petitioner failed to establish that he had any interest in the acquired property. The revision is filed against this order refusing to make a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act).

2. Mr. Ranjit Mohanty contended that the petitioner is a 'person interested' within the meaning of the expression in Section 3(b) of the Act and that the Land Acquisition Officer acted in excess of his jurisdiction in recording a finding that the petitioner had no interest in the land and in rejecting his application for reference on that finding without leaving the matter to be determined by the competent Court under Section 18 of the Act. Mr. K. C. Mohanty, on the other hand, contended that the petitioner's name did not occur in the award and, as such, he could claim a reference only under Section 30 and not under Section 18 of the Act and that against an order refusing to make a reference under Section 20, no civil revision lies. Mr. J. K. Mohanty contended that in Title Suit No. 392 of 1942, decided on 25-10-43, the title of Satyabadi Das as against Bharat Chandra Pani, Ramchandra Pani and Luxman Pani, the predecessors-in-interest of Kasinath Pani (Opp. Party-1), was negatived; as the petitioner derived title from Satyabadi Das, he is bound by the previous decree and his present claim is frivolous. As such, he is not a person interested to ask for a reference under Section 18.

All these contentions require careful examination.

3. Section 3(b) of the Act defines 'a person interested' thus -

'3. In this Act, unless there is something repugnant in the subject or context -

(a) x x x x x

(b) 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: and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.'

The underlined (here in ' ') expression 'claiming an interest' puts emphasis on laying a claim. On investigation the claim may be true or fictitious. The Land Acquisition Officer would accept a true claim and not a fictitious one. He is, however, not the final authority to dispose of the claim if a reference under S 18 is sought. The nature and character of the claim is to be finally determined by the competent Court to whom the reference is made under Section 18. Doubtless it was open to the Land Acquisition Officer to examine in the first instance whether the petitioner had a true claim to be accepter on the basis of which compensation was payable. But once the petitioner's claim was negatived and he did not accept the award, reference at his instance, is bound to be made by the Land Acquisition Officer under Section 18 and cannot be rejected on his own finding that the claim is fictitious. Refusal to make a reference on his own finding that the claim is fictitious is denying the exercise of a jurisdiction vested in him under Section 18.

The identical argument was advanced before a Bench of this Court in 26 Cut LT 552 = (AIR 1961 Ori 39) Chintada Kasiviswanadham v. Sub Collector, Berhampur. Their Lordships held that it is not open to the Collector to decide an application under Section 18 on the merits of the objections raised therein and then refuse to refer the matter to the Civil Court.

4. Section 18 of the Act runs thus, so far as relevant -

'18 (1)--Any person interested who has not accepted the award may, by written application to the Collector, require that the matter may be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.'

In this case, all the conditions of Section 18 have been satisfied. The petitioner was a party to the land acquisition proceeding. He claimed interest in the entire compensation. No award was made in his favour. He did not accept the award. By a written application to the Collector he required that the matter be referred by the Collector for determination of the Court, which, by Section 3(d) of the Act, means a principal civil Court of original jurisdiction. The application was filed within six weeks of the date of the Collector's award The Land Acquisition Officer (the Collector) illegally exercised his jurisdiction in refusing to make a reference. The contention advanced by Mr. J.M. Mohanty has no substance and is rejected.

5. Mr. K. C. Mohanty contends that as the award does not contain the name of the petitioner, he can ask for a reference only under Section 30 and not under Section 18 of the Act. Reliance is placed on the majority view in paragraph 13 of AIR 1966 SC 237. Dr. G. H. Grant v. State of Bihar. The passage runs thus -

'There are two provisions, Section 18(1) and 30, which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable. By Sub-section (1) of Section 18 the Collector is enjoined to refer a dispute as to apportionment or as to title to receive compensation, on the application within the time prescribed by Sub-section (21 of that section by a person who has not accepted the award. Section 30 authorises the Collector to refer to the Court after compensation is settled under Section 11, any dispute arising as to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. 'A person shown in that Dart of the award which relates to apportionment of compensation who is present either personally or through representative, or on whom notice is served under Sub-section (2) of Section 12 must, if he does not accept the award, apply to the Collector within the time prescribed under Section 18(2) to refer the matter to the Court.'

Mr. K.C. Mohanty puts emphasis on theunderlined (here in ' ') portions andcontends that before a reference undersection 18 is competent, the name ofthe person must appear in the awarditself. The sentence relied upon does not sayBO. The observations of their Lordships inthe very passage -- 'but a person who hasnot appeared in the acquisition proceedingbefore the Collector may, if he is not served with the notice of the filing, raise a dispute as to apportionment or as to the personto whom it is payable and apply to the Courtfor a reference under Section 30 for determination of his right to compensation which mayhave existed before the award' -- clearlyIndicate that a person, who was not a partyto the land acquisition proceeding, can askfor a reference under Section 30 and not under Section 18 of the Act.

The reason why Mr. K.C. Mohanty advanced such a contention may be noticed. The petitioner was a party to the land acquisition proceeding. On 2-9-63 the Land Acquisition Officer passed his judgment that the petitioner was not entitled to any compensation. The award was not, however, drawn up till 12-12-64. In the award drawn up, the name of the petitioner was completely omitted. The correct procedure would have been to insert the name of the petitioner in the award and to write against his name that the compensation payable was nil. The omission of the name of the petitioner from the award ultimately drawn up was a clerical mistake. Such clerical mistake could be rectified by sending the award back for inserting the name of the petitioner in the award and writing against his name that compensation payable is nil. When this case goes back, the Land Acquisition Officer would amend the award by writing the name of the petitioner therein with an endorsement that the compensation payable to him is nil. It would not affect the position that he was a party to the land acquisition proceeding claiming the entire interest in the land acquired. The substantive right is derived not from the formal drawal up of the award but from the fact of the petitioner being a party to the land acquisition proceeding and advancing a claim. He could not have, however, asked for a reference until the award was drawn up in accordance with the judgment passed on 2-9-63. This position is made clear in the Commentary under Section 7 of the Law of Land Acquisition and Compensation by Ramchandran, 3rd Ed. at page 371, The learned author puts the matter thus-

'The Collector cannot omit from his award the name of any person who has made a claim (for he is, from the definition, a person interested) [ Section 3(b)], although the Collector finds him not entitled to any compensation and would award nil for him, unless such person withdraws his claim.'

There is no substance in the contention advanced by Mr. K.C. Mohanty and it is accordingly relected. The application filed by the petitioner before the Collector asking for a reference under Section 18 of the Act was competent.

6. The next question for consideration is whether a civil revision lies against the impugned order. In AIR 1952 Orissa 98, Samanta Radhaprasanna v. Province of Orissa, his Lordship Panigrahi, J. held that no civil revision lay. The order of the Collector in that case refusing to make a reference was. however, set aside in exercise of power under Article 227 of the Constitution of India. This Single Judge decision was followed by the Division Bench in 26 Cut LT 552-(AIR 1961 Ori 39) (see paragraph 2)

It is unfortunate that the attention of their Lordships in the aforesaid two decisions was not invited to Orissa Act XIX of 1948 The Land Acquisition (Orissa Amendment) Act, 1948. By Section 2 of this Act, Sub-section (3) was inserted after Section 18(2) of the Act. Sub-section (3) runs thus -

'Any order made by the Collector on an application under this section shall be subject to revision by the High Court as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Civil Procedure Code. 1908.'

By this amendment, a civil revision is competent. The view expressed in AIR 1952 Orissa 98 and 26 Cut LT 552 = (AIR 1961 Ori 39) that no civil revision lies is contrary to law. Both the decisions overlooked the Orissa Amendment and to that extent are not to be followed.

7. In view of the aforesaid finding the impugned order is set aside. The Land Acquisition Officer is directed to make a reference under Section 18 of the Act in accordance with law.

8. The civil revision is allowed. In the circumstances, parties to bear their owncosts.


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