Skip to content


Sri Venkateswaraswami Varu of Bezwada, by Trustees Rampilla Appalaswami and anr. Vs. the Sub-collector and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1943Mad327; (1943)1MLJ66
AppellantSri Venkateswaraswami Varu of Bezwada, by Trustees Rampilla Appalaswami and anr.
RespondentThe Sub-collector and anr.
Cases ReferredIn Pratap Bhattudu v. A.E.L. Missionm I.L.R.
Excerpt:
- - reading the two sections together, i am clearly of opinion that the court has no alternative but to act on the reference made by the collector. the order of appointment of the third trustee clearly indicates that he was appointed as trustee from the 4th may, 1937. it is true that it was not despatched at once and it is true also that it would come to have practical effect only after he accepted it......of bezwada in o. p. no. 33 of 1937 holding that a reference made to him under section 18 of the land acquisition act by the sub-collector of bezwada was incompetent and that the subject-matter of the reference cannot be enquired into by him. certain properties of the temple were acquired under the land acquisition act and an award was made on the 16th may, 1937. the temple had then only two trustees holding the office and a third trustee was appointed by the hindu religious endowments board on 4th may, 1937, for a period of five years from that day. but he seems to have got the order actually subsequent to 31st may, 1937. he gave an application to the land acquisition officer on 1st october, 1937, requesting him as collector to make a reference under section 18 of the act as the.....
Judgment:

Kuppuswami Ayyar, J.

1. This is a petition by the managing trustees of the temple of Sri Venkateswara Swami Varu of Bezwada for revising the order of the learned Subordinate Judge of Bezwada in O. P. No. 33 of 1937 holding that a reference made to him under Section 18 of the Land Acquisition Act by the Sub-Collector of Bezwada was incompetent and that the subject-matter of the reference cannot be enquired into by him. Certain properties of the temple were acquired under the Land Acquisition Act and an award was made on the 16th May, 1937. The temple had then only two trustees holding the office and a third trustee was appointed by the Hindu Religious Endowments Board on 4th May, 1937, for a period of five years from that day. But he seems to have got the order actually subsequent to 31st May, 1937. He gave an application to the Land Acquisition Officer on 1st October, 1937, requesting him as Collector to make a reference under Section 18 of the Act as the amount fixed by the award was insufficient. He also disputed the correctness of the area and measurements of the land as given in the award. The Land Acquisition Officer passed an order on the 24th November, 1937, making the reference to the learned Subordinate Judge of Bezwada. But he sent ft to the Subordinate Judge with a letter dated 7th December, 1937. It was contended before the learned Subordinate Judge by the Government Pleader that the Collector had no jurisdiction to make the reference as the person who gave the application was not a person interested and that the application was given out of time. It was pleaded for the claimants that the Subordinate Judge had no jurisdiction to go into the question as to whether a reference was in order or not and that the only jurisdiction which the Court had was to consider whether the area and measurements were correctly given and the amount awarded was adequate.

2. The Subordinate Judge found that he had jurisdiction to go into the matter, that the application was made out of time and that the person could not be said to be a person interested. He therefore held that the reference was incompetent and the subject-matter of the reference could not be enquired into. Hence this petition to revise the order.

3. The points for consideration therefore are (1) whether the learned Subordinate Judge had jurisdiction to enquire into the validity of the reference and (2) if so, whether he was right in finding that the application was not made by a person interested and was out of time.

4. Point 1.--It is contended for the petitioner that the Subordinate Judge exercising jurisdiction under the Land Acquisition Act has limited jurisdiction and that it is not open to him to decide anything except the matters referred to him as it is the reference that gives him jurisdiction to enquire into the matter. In short, it is stated that since it is the reference that gives him the jurisdiction to enquire into the matter, it will not be open to him to enquire whether the reference was in order or not. It is admitted that there are no direct authorities of this Court on this point. In In re the Land Acquisition Act I.L.R.(1905) 30 Bom. 275 it was held by a single Judge of the Bombay High Court that it was open to the Land Acquisition Court to go into the competency or validity of the reference. This was followed by the Lahore High Court in Ghulam Muhyuddin v. Secretary of State (1914) 241.C. 379. Sukhbir Singh v. Secretary of State for India in Council I.L.R.(1926) All. 212 also refers to it. But a contrary view was expressed in two later decisions of the Allahabad High Court, namely, Secretary of State for India in Council v, Bhagwan Prasad I.L.R.(1929) All. 96 and Secretary of State v. Bhagwan : AIR1932All597 , where it was held that it is not open to the Land Acquisition Court to go into the question as to whether the reference was validly made or not. In none of the decisions of the Lahore and Allahabad High Courts cited before me for the respondent is any reason given as to why it was held by those Courts that the Land Acquisition Court had jurisdiction to enquire into the validity of the reference. In In re the Land Acquisition Act I.L.R. (1905) 30 Bom. 275 that is what is stated:

Now, as was said by the Judicial Committee of the Privy Council in Nusserwanjee Pestonjee v. Meet Mynoodeen Khan Wullud Meet Sunderoodeen Khan Bahadur (1855) 6 M.I. A. 134 wherever jurisdiction is given to a Court by an Act of Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament), and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.' The same case is also authority for the proposition that the compliance need only be substantial so as to be ' intelligible and clear'.

This is the only reason given by the Bombay High Court for the position that it is open to the Land Acquisition Court to go into the question as to the competency of the award. In the case of a reference under Section 18 it is not the application of the party which gives jurisdiction to the Civil Court, but it is the reference made by the Land Acquisition Officer. An application may be given and the reference may not be made. Consequently if the application was not validly made, then it will only indicate that the reference was made without adequate grounds. But that will not make it any the less a reference which would give the Court jurisdiction to enquire into the question referred to. I do not think that the observations of the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sunderoodeen Khan Bahadur (1855) 6 M.I.A. 134 referred to in In re the Land Acquisition Act I.L.R.(1905) 30 Bom. 275 can be taken as authority for the position that it will be open to the Land Acquisition Court to go into the regularity or validity of the application on which the reference is made by the Collector. In Secretary of State for India in Council v. Bhagwan Prasad I.L.R.(1929) All. 96 a Bench of the Allahabad High Court held that the Court to which a reference has been made by the Collector on an application under Section 18 of the Land Acquisition Act has no jurisdiction to go behind the reference in order to scrutinise its regularity and cannot enter into the question whether the application in pursuance of which it was made was within limitation or not. In re the Land Acquisition Act 2 and Sukhbir Singh v. Secretary of State for India in Council I.L.R.(1926) All. 212 were cited before that Bench and were not followed. The case Sukhbir Singh v. Secretary of State for India in Council I.L.R.(1926) All. 212 was distinguished on the ground that in that case the Collector had not been asked to make the reference at all and he made the reference on the assumption that a reference had been required. It was also pointed out that the claimants, not having ever asked the Collector to make a reference, could but with ill grace say that the Judge was bound to hear the reference, and that the learned Judges did not consider what authority the District Judge had to consider the propriety of the Collector's act which alone gave the Judge jurisdiction. At page 107 it is pointed out,

Section 20 of the same Act provides that the Court shall, on receipt of the reference, cause a notice, specifying a day on which the Court will proceed to determine the objections and directing their appearance before the Court on that day, to be served on the applicants. Reading the two sections together, I am clearly of opinion that the Court has no alternative but to act on the reference made by the Collector. The provisions of Section 20 are mandatory, and the Court has no power to scrutinize the regularity of the proceedings before the Collector or the correctness of the view taken by the Collector, of the question of limitation relating to the application which moved him to make the reference. It was the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so. If he decides the question of limitation one way or the other, the Act does not allow an appeal against his decision to the District Judge, the High Court or any other superior authority. If the Collector refuses to make a reference, holding that the application made to him for such reference had been made beyond the period of limitation prescribed, it is obvious that the aggrieved person, the owner whose land was acquired, could not have challenged his view before any tribunal. The Secretary of State, likewise, cannot question its correctness, if on the question of limitation the Collector's view is adverse to him and if he makes a reference to the Court. The functions which the Collector performs under the Land Acquisition Act are administrative and not judicial : Ezra v. Secretary of State I.L.R.(1905) Cal. 605. I am, therefore, of opinion that the Court cannot go behind the reference to ascertain whether the applications in pursuance of which it was made were within limitation or otherwise, and consequently into the question whether the Collector should or should not have made the reference which he did.

This decision was followed by the Allahabad High Court in Secretary of State v. Bhagwan : AIR1932All597 . Their Lordships observed as follows:

The ' Court' does not sit on appeal over the Collector and the Act does not give any authority 1.0 the ' Court,' either in express terms or by implication, to go behind the reference and to see whether the Collector acted rightly or wrongly. It is the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so.

In Abdul Sattar Sahib v. Special Deputy Collector, Vizagapatam Harbour Acquisition (1933)46 M.L.J. 209 : I.L.R. Mad. 357 a 'Full Bench of three Judges of this Court had to consider the question whether under Section 115 of the Civil Procedure Code the High Court had the power to revise an order of the Collector refusing to make a reference on an application filed under Section 18. It was held that the Court had no power to revise that order. The following observation was made by the learned Chief Justice at page 366,

In Ezra v. Secretary of State for India I.L.R.(1905) Cal. 605 the Privy Council has decided that the Collector, exercising functions under the Land Acquisition Act down to the point when he gives what is called his award, is acting only in an advisory capacity and is not exercising any judicial function at all; but in these later cases which I have referred to, it is pointed out, and I think correctly pointed out, that when he acts under Part III of which Section 18 forms part, he is acting in a different capacity, because he has there to decide certain things; he has to send the case to the District Court if certain provisions in that section have been complied with, one of which is the question of time; that is to say, he has to decide whether the application is barred or not; and in doing so, in my judgment, he acts judicially.

At page 368, Ramesam,J. observed,

I would only add that it is desirable that the Act should be amended so as to give a remedy to the subject in respect of possible arbitrary acts of Land Acquisition Officers in declining to refer under Section 18 and not to leave them to depend upon the action of the Government in advising their officers.

From these observations it is clear that it is the duty of the Collector before he makes the reference to decide on the materials before him whether he should make the reference or not, and if he decides to make and does make a reference, it is not open to the Land Acquisition Court to go behind it. If it is not open to the High Court or any other authority to interfere when the Land Acquisition Officer refuses to make a reference, his decision must be equally final when he decides to make and does make a reference.

5. It is true that in this case unfortunately the Collector did not decide the point. At any rate, he says that the point was doubtful to him and this he mentions in his letter. The reference is not by the letter but by the order dated 24th November, 1937. It is worded as if it is a judicial order and he has given there the reason for reference and the name of the persons interested and the amount as required by the Act. He has not stated there that he had any doubts as to the propriety of his making a reference, though in the letter dated 7th December, 1937 he has referred to these facts. I therefore find that the learned Subordinate Judge had no right to question the validity of the reference.

6. Point 2.--Moreover, even on the merits, I do not think the learned Subordinate Judge was right. The order of appointment of the third trustee clearly indicates that he was appointed as trustee from the 4th May, 1937. It is true that it was not despatched at once and it is true also that it would come to have practical effect only after he accepted it. But if he accepts it, it will take effect from the 4th May, 1937. So_ in law he was a trustee from that date though it is by fiction. But it cannot be denied that on the date on which the reference was made he was interested in the amount of compensation. It has been held that a presumptive reversionary heir as also a presumptive shebait of a temple are persons interested within the moaning of Section 18 of the Land Acquisition Act. (Vide Nandalal v. Arunchandra 41 C.W.N. 464 Mst. Gangi v. Sanbi A.I.R. 1929 Lah. 736. In Pratap Bhattudu v. A.E.L. Missionm I.L.R.(1924) Mad. 38 it was held that even an attaching creditor, though he has no legal interest in the property, is an interested person within the meaning of the section. Such persons do not receive notice of the Land Acquisition proceedings and of the award under Section 12 (2). Under Section 18 any person interested could make an application if the person making was present or was represented before the Collector at the time when he made his award, within six weeks from the date of, the Collector's award or in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 (2), or within six months from the date of the Collector's award, whichever period shall first expire. Under Section 12 (2) the Collector should give immediate notice of his award to such of the persons interested as are not present personally or by their representatives, when the award is made. If the applicant who moved the Collector in this case is a person interested, the Collector in the nature of things could not have sent him notice. As a matter of fact, the Collector may not know who are all interested in the matter. He could not have known who were the reversionary heirs or who were the prospective she baits or who were the attaching creditors, in which case naturally he would not be giving them notice. It does not make it obligatory on the Collector to give notice to interested persons whom he is not aware of. If he chooses to give a notice, then that person will have to apply within six weeks. But if he does not give a notice, then the period of limitation will be six months. In this case the application was filed within six months from 'the date of the award. So on the merits also it cannot be said that the reference was incompetent.

7. In the result, the civil revision petition is allowed, the order of the learned Subordinate Judge is set aside and the application is remanded for being disposed of in the light of the observations made above. The costs of this petition will abide and follow the final result of the reference.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //