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Sm. Kako Bai Vs. the Land Acquisition Collector, Hissar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 66 of 1956
Judge
Reported inAIR1956P& H231
ActsLand Acquisition Act, 1894 - Sections 3, 11, 14, 18 and 18(3); Code of Civil Procedure (CPC) , 1908 - Sections 115; Constitution of India - Article 226
AppellantSm. Kako Bai
RespondentThe Land Acquisition Collector, Hissar and ors.
Appellant Advocate N.L. Salooja, Adv.
Respondent Advocate S.M. Sikri, Adv. General
DispositionRevision allowed
Excerpt:
.....a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be..........by the punjab government for the purpose of constructing a mandi, township and a factory under the land acquisition act and notification under section 4 of the act was issued on 31-1-1955 and the notification under section 6 was issued on 17-2-1955. it appears that this entire land is evacuee land and sm. kako bai is an allottee of about 32 acres out of this area.notices were issued to her on 4-3-1955, under sections 9 and 10, land acquisition act as a person interested in the acquired land, and on 23-3-1955, the collector, hissar, made his award under section 11 of the act. kako bai applied to the collector on 20-4-1956, requiring him to refer the matter for determination by the district judge, hissar, under section 18 of the act.the collector, however by his order dated 23-9-1955,.....
Judgment:
ORDER

Bishan Narain, J.

1. Certain place of land situated in mauza Basti Bewan, Tahsil Fatehabad, District Hissar, has been acquired by the Punjab Government for the purpose of constructing a mandi, township and a factory under the Land Acquisition Act and notification under Section 4 of the Act was issued on 31-1-1955 and the notification under Section 6 was issued on 17-2-1955. It appears that this entire land is evacuee land and Sm. Kako Bai is an allottee of about 32 acres out of this area.

Notices were issued to her on 4-3-1955, under Sections 9 and 10, Land Acquisition Act as a person interested in the acquired land, and on 23-3-1955, the Collector, Hissar, made his award under Section 11 of the Act. Kako Bai applied to the Collector on 20-4-1956, requiring him to refer the matter for determination by the District Judge, Hissar, under Section 18 of the Act.

The Collector, however by his order dated 23-9-1955, dismissed the application on the ground that it is open to the Collector not to make the required reference in the exercise of his discretion and observed in his order that the land before acquisition vested in the Custodian and Keko Bai was only a quasi permanent allottee from him and that as Kako Bai had contravened the terms of the allotment she was not entitled to any compensation. He further found that Kako Bai erected constructions on the acquired land after publication of the notice under Section 4 of the Act and, therefore, she was not entitled to compensation for improvements effected by her.

The Collector suggested in this order that, Kako Bai may apply to the Custodian for allotment of land to her somewhere else. The claimant aggrieved with this order applied to this Court under Article 226 of the Constitution for sue of a writ of mandamus to the Collector to refer the matter to the Dist. Judge, Hissar. This order of the Collector, however, is open to revision under Section 18 Sub-section (3) as this sub-section has been added to Section 18, Land Acquisition Act fay Section 3, Land Acquisition (Punjab Amendment) Act, 1953 (Punjab Act 2 of 1954). When this enactment was brought to the notice of the learned counsel for the petitioner he prayed that the petition under Article 226 of the Constitution may be treated as a petition for revision and accepting this prayer I proceed to decide this case as a revision petition.

2. It appears to me that the Collector has entirely misconceived the scope of the proceedings taken by him on the Government directing him to take action under Section 7, Land Acquisition Act. These proceedings are administrative and not Judicial although under Section 14 of the Act the Collector has power to summon and enforce attendance of witnesses and to compel production of documents.

The award that the Collector makes under Section 11 of the Act after holding this enquiry is not a final award binding on the claimant. It is merely a tender or an offer of an amount mentioned in the award as compensation payable by the Government to the claimant. This offer is binding only on the claimant who has a right under Section 18 of the Act to get the matter decided by a civil Court.

Any opinion expressed by the Collector in his award under Section 11 of the Act on any matter is not binding on the claimant. A person who has not accepted this offer or tender appears to me to have an absolute right to get the matter determined on all matters mentioned in Section 18 by a civil Court provided he conforms to the formalities laid down-in this section. These formalities are that he must make an application in writing to the Collector within the period specified in the section. This application has to be made by an 'interested person' which expression in Section 3(b) of the Act is defined as including a person claiming an interest in the compensation.

Under this definition it is immaterial whether there is any substance in the claim made by the person applying under Section 18 or not. Consequently it is not open to the Collector to decide whether to fact or in law the claimant has any interest in compensation of the land acquired or not. It is also not open to the Collector to decide in these proceedings whether a claimant is entitled to more compensation than allowed by him under Section 11. He can also not decide whether a claim for compensation for improvements, which has been rejected in the award under Section 11, has any legal basis to hold that his award under Section 11 is correct on all matters mentioned in the application and then refuse to refer the matter to civil Court.

Such a conclusion is obviously opposed to the scheme of the Act according to which the legislature has left the final assessment of compensation to civil Courts. In this connection it may be noticed that under Section 19 the Collector must at the time of making the reference give certain information to civil Court including the names of persons who, in his opinion, are interested in the land acquired and the grounds on which the amount of compensation has been fixed.

Obviously this Section 19 is inconsistent with the Collector's view that under Section 18 he can decide the objections to his award on merits and then refuse to refer the matter to civil Court. For these reasons I have no hesitation in holding that 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 9. 18 have been complied with or not and this decision has now been made subject to revision under the Land Acquisition (Punjab Amendment) Act, 1953 (Act 2 of 1954) in accordance with the provisions of Section 115, Civil P. C.

3. Now, the formalities laid down in this section have been fully satisfied in the present case. Admittedly the application has been made in writing and it is not suggested that it is barred by time. It specifies a ground on which reference to required by the claimant. Kako Bai claims compensation both for land and for improvements made by her, and she is a person interested in the compensation as this term is defined in the Act and she was served under Sections 9 and 10 of the Act on that basis. Therefore, there is no reason for the Collector for refusing to refer the matter to the District Judge, Hissar.

I, therefore set aside the order of the Collectordated 23-9-1955, dismissing Kako Bai's applicationunder Section 18, Land Acquisition Act and direct himto refer the matter to District Judge, Hissar, inaccordance with law. The petitioner will get costsof this petition from respondents 1 and 2.


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