1. In this case we are asked to revise an order of the Revenue Divisional Officer of Palghat dismissing petitioners' application under Section 18 of the Land Acquisition Act (1 of 1894) for a reference to the Court regarding his award of compensation for certain lands of a devaswom acquired under the Act.
2. The order is very brief and runs thus :
These persons do not appear to be the accredited representatives of the devaswom. The petition is therefore rejected.
3. That the order is illegal hardly admits of doubt. Section 18 enables 'any person interested, who has not accepted the award' to 'require' a reference: and Section 3 (b) defines 'persons interested' as including all persons claiming an interest in the compensation. As long as the application sets out a claim to an interest in the compensation, it is no part of the Collector's duty to decide whether the claim is well founded : and he is not authorised to refuse to make the reference merely because he may think it is not. Petitioners in their application in the present case undoubtedly claim an interest in the compensation as trustees and managers of the devaswom to which the acquired property belongs: and they have not accepted the award.
4. It is, however, contended by the Government pleader that however illegal the Revenue Divisional Officer's order may be, it is not one with which we can interfere either under Section 115 of the Code of Civil Procedure, or Section 107 of the Government of India Act, because it is not the order of a 'Court' Subordinate to this Court. He relies mainly on a recent decision of this Court in Best and Co. v. Deputy Collector of Madras (1916) 20 M.L.T. 388 which undoubtedly supports him, although after careful and respectful consideration I am unable to agree with the view of the learned judges. The latter is not based on independent reasoning so far as the judgment discloses, but on two earlier cases, which do not appear to bear the interpretation put upon them : and it is certainly opposed to the weight of authority in other Courts. The cases referred to are Ezra v. Secretary of State for India I.L.R. (1905) Cal. 605 and British India Steam Navigation Co. v. Secretary of State for India I.L.R. (1910) Cal. 230. An examination of them shows that both dealt with the power to revise the award of a Collector under Section 11of the Act, and with the nature of the proceedings, which led up to, and terminated in, such an award. Their Lordships of the Privy Council in the first case say that the proceedings resulting in this award are administrative and not judicial; and the learned Judges of the Calcutta High Court in the second case take the matter practically no further. They in fact specifically reserve the question before us of whether the order of a Collector refusing to make, a reference under Section 18 is subject to revision by the High Court : while at the same time, they refer to a case The Administrator General of Bengal v. The Land Acquisition Collector (1905) 12 Cal. W.N. 241 in which it was held to be revisable. Neither case is therefore an authority for the proposition that it is not revisable.
5. On the other hand the case last quoted is clear authority for holding that there is a distinction between Part II and Part III of the Act, and that in rejecting an application under Section 18 a Collector acts judicially and his order is subject to revision by the High Court. Although Mookerjee and Sharfuddin, JJ. in British Indian Steam Navigation Go. v. The Secretary of State for India I.L.R. (1910) Cal. 230 left this point open, as not necessary for the decision of the case before them, the decision in The Administrator General of Bengal v. The Land Acquisition Collector I.L.R. (1910) Cal. 230 was followed by another Bench of that Court in Krishna Das v. Collector of Patna (1911) 16 Cal. L.J. 165 as well as by a Bench of the Patna High Court in Saraswati Pattack v. The Land Acquisition Deputy Collector of Ghamparan (1917) 2 Patna L.J. 204.
6. I am moreover inclined to take the same view. The proceeding under Part III of the Land Acquisition Act are undoubtedly judicial in character, and although the part played in. them by the Collector is small, he is far from being a mere post office or channel for transmission of the representations of the persons interested. He has to determine whether the application satisfies the conditions of the proviso to Section 18, and in making the reference he has to set out the grounds of his own award, and his opinion as to what persons are really interested in the land acquired. I think he may be considered to be acting as a 'Court'.
7. I may add that unless such an order is open to revision it is not clear what remedy a person aggrieved by it possesses. In Best and Co. v. Deputy Collector, Madras (1916) 20 M.L.T. 388 the learned Judges were dealing with an application for a mandamus under Section 45 of the Specific Relief Act. The effect of proviso (d) to that Section is to exclude cases where the applicant has any other specific and adequate legal remedy : and it was in order to determine whether this proviso applied that the question of the admissibility of a revision petition had to be considered. It was even argued before us that for this reason the ruling was an obiter dictum; but while this argument is unsound, the circumstances under which the point arose may perhaps be looked to. However that may be, the remedy by way of ' Mandamus ' is only available within the original civil jurisdiction of this Court : and I feel very doubtful how far the alternative reliefs suggested by the Government pleader (a suit for damages and a suit under Section 55 of the Specific Relief Act) are available to parties in the plight of the present petitioners. That some remedy should be at the disposal of parties aggrieved by an arbitrary order like the one before us is incontrovertible.
8. I am of opinion that the order is open to revision, and if so, it is certainly one which we should set aside. I would set aside the order of the Revenue Divisional Officer and direct him to make a reference to the District Court, as provided by law. Costs of this petition will be provided for in the District Judge's award.
9. The main argument before us in this case has been on the question whether we have power under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act to revise the order of the Revenue Divisional Officer as the Land Acquisition Collector, refusing to refer to the Court under Sections 18 and 19 of Act I of 1894, the application filed by the petitioners under Section 18.
10. The learned Government Pleader contended that in making his order the Divisional Officer was acting in his administrative capacity only and not as a Court Subordinate to the High Court and therefore his order, however illegal it might be, was not open to be revised by us under our revisional powers. He has relied on the ruling in Best and Co. v. Deputy Collector of Madras (1916) 20 M.L.T. 388 in his favour. On the other hand the learned vakil for the petitioners has drawn our attention to the rulings in The Administrator-General of Bengal v. The Land Acquisition Collector 12 C.W.N. 241 and Saraswan Pattach v. The Land Acquisition Deputy Collector of Champaran (1917) 2 P.L.J. 204 where under similar circumstances the High Courts of Calcutta and of Patna held the it they had power to interfere in revision and did so.
11. Though the question is not free from difficulty I am inclined to think that as between the two views above stated we should adopt the latter because it is consistent with the language and scheme of the act and because if we do not do so, there will be no proper and adequate remedy to prevent a misuse of power by the Land Acquisition Collector who, by adopting the simple expedient of refusing to refer, may prevent an enquiry by Court into the correctness of his own award; at any rate in all cases arising outside the Presidency towns. The remedy by Mandamus under Section 45 of the Specific Relief Act which was adopted in Best and Co. v. Deputy Collector of Madras (1916) 20 M.L.T. 388 is available only within the Ordinary Original Civil Jurisdiction of the High Courts and not outside it. The learned Government Pleader suggested that on the principles laid down in Lvchmeswar Singh v. Chairman Darbhanga Municipality I.L.R. (1890) Cal. 99 Gaekwar Sarkar of Baroda v. Gandhi Kachrabhai I.L.R. (1903) Bom, 314 and Rameswar Singh v. Secretary of State for India I.L.R. (1907) Cal. 470 the petitioners had a right to sue for damages; but even if this is so, about which I express no opinion, it is not an adequate or satisfactory remedy. It was also suggested by him that an action might lie under Section 55 of the Specific Relief Act to direct the Collector by a mandatory injunction to make the reference he refused to make. No authorities have been cited in support of this suggestion and it seems to be of doubtful validity. But whether the petitioners have another remedy or not I think we should interfere if we have the power to do so.
12. It seems to me that a careful consideration of the scheme and language of part III of the Act leads to the conclusion that the act of the Collector in refusing to make a reference under Section 19 is a judicial act. Now it cannot be denied that the proceedings under part III which result in an award of the Court are judicial proceedings and by virtue of Section 54 the Court is subordinate to the High Court. Sections 18 and 19 provide for the procedure to be adopted to initiate those proceedings. Ordinarily a proceeding is commenced in a Court of Law by the presentation of a plaint or a petition to it; but the Land Acquisition Act has adopted a somewhat different method, viz., the presentation of the application to the Collector. If the requirements of Section 18 are complied with the Collector has no option but to make the reference, and in doing so, in addition. to the statement to be sent by him under Section 19 Clause (1), he has to attach a schedule of the particulars of the notices served and of the statements made by the parties. The objection petition itself is forwarded to the Court. The limitation fixed under Section 18 has also reference to the filing of the objection petition. It seems clear therefore that the proceedings which culminate in the court's award commences with the filing of the application under Section 18. As soon as it is filed the matter of the amount of proper compensation assumes a litigious form and becomes a contentious proceeding between the owner and the Collector. It was held by Chandavarkar, J., in In Be Land Acquisition Act--In Re Rustomji Jijibhai I.L.R. (1905) B. 341 that the application under Section 18 is in the nature of a plaint in a suit. But whether it be a plaint or a petition I consider it to be the first step in the judicial proceedings and to be an integral part of it. It follows therefore that if the Collector decides to reject it or passes any orders regarding it he does so judicially and not administratively; for a judicial proceeding once commenced cannot be affected by administrative action. The questions that the Collector may have to decide under Section 18, viz., whether the applicant is a person interested within the meaning of the Act, whether the application is in proper form and whether it is in time are all questions that have to be decided judicially. If therefore the Collector takes upon himself to pass an order which has the effect of rejecting the petitioner's application and of preventing his claim being tried by the Court I see no difficulty in holding that it should be treated as a judicial order subject to our revisional jurisdiction.
13. The ruling in Best and Co. v. Deputy Collector of Madras (1917) 20 M.L.T. 388 has no doubt taken the contrary view but with every respect to the learned Judges I regret I am unable to adopt it. The ruling in it on the point before us seems, as pointed out by my learned brother, to be based entirely on what appears to be a wrong impression of the scope of the rulings in Ezra v. Secretary of State for India I.L.R. (1905) Cal. 605 and British India Steam Navigation Co. v. Secretary of State for India I.L.R. (1910) Cal. 230 which the learned Judges purport to follow. Neither case dealt with a question such as the present one arising under part III of the Act. The observation of the Privy Council is not, as stated in Best & Go. v. Deputy Collector of Madras (1916) 20 M.L.J. 388 that the proceedings of the Collector are administrative 'until the matter comes before the Land Acquisition Judge,' but only that they are administrative 'till they result in his award.' See Ezra v. Secretary of State for India I.L.R. (1905) C. 605.
14. In the second case above cited the question arose with reference to an application by the Secretary of State to direct the Collector to pass a fresh award under Section 11. It was with reference to that, that the learned Judges held, following Ezra's case, that they could not interfere in revision. When the case in The Administrator General of Bengal v. The Land Acquisition Collector 12 C.W.N. 241 was cited to them they distinguished it on the ground that that case referred to a proceeding relating to the Collector's award. They did not dissent from that ruling; and it has since been followed by the same High Court in Krishna Das Roy v. The Land Acquisition Collector of Pabna 16 C.W.N. 327 : 16 C.L.J. 165 and as already stated the Patna High Court has adopted the same view.
15. It would also appear that the attention of the learned Judges in Best and Co. v. Deputy Collector of Madras (1916) 20 M.L.J. 388 was not drawn to the distinction between the position of the Collector under part II of the Act and his position under part III. In the former he acts practically as an agent of the Government in fixing the price to be paid and in taking possession of the land which is acquired. His award is not binding on the owner as he can ask for a reference under Section 18; nor is the Government bound till possession is taken as it can under Section 48 withdraw from the acquisition till then. It was with reference to these circumstances that his action was held to be an administrative one by the Privy Council. That ruling however is not decisive of the Collector's position under part III where, as explained above he seems to act in a judicial capacity as part of the Court and receives the objection petition and deals with it.
16. I therefore agree with my learned brother that we should follow the view in The Administrator-General of Bengal v. The Land Acquisition Collector 12 C.W.N. 241 in preference to that in Best and Co. v. Deputy Collector of Madras (1916) 20 M.L.T. 388 and hold that we have power to interfere in revision with the order of the Sub-Divisional Officer.
17. On the merits there can be no question that his order is wrong. In fact if the Sub-Divisional Officer had looked at the definition of ' person interested ' in Section 3, Clause (6) of the Act I think he would not have passed the order he passed. In rejecting the application on the ground stated by him, when he had no power to do so, he must be taken to have acted illegally in the exercise of his jurisdiction and we should therefore interfere under Section 115 of the Code of Civil Procedure. I agree to the order proposed by my learned brother.