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Birendra Nath Banerjee and ors. Vs. Mritunjoy Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 97 of 1956
Judge
Reported inAIR1962Cal275,66CWN191
ActsLand Acquisition Act, 1894 - Sections 9, 11, 12, 12(2), 18, 30 and 31(2)
AppellantBirendra Nath Banerjee and ors.
RespondentMritunjoy Roy and ors.
Appellant AdvocateJ.K. Sen Gupta and ;Sivakali Bagchi, Advs.;Alak Gupta, Adv.
Respondent AdvocateAsoke Chandra Sen and ;Murari Mohan Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredSurya Single v. Golamjat Singh
Excerpt:
- banerjee, j. 1. (after stating the facts, proceeded:) mr. jitendra kumar sen gupta, learned advocate forthe appellants, argued three points for our consideration in this appeal. he contended that the court below was wrong in holding that the plaintiff had not been served with notices either under section 9 or under section 12(2) of the land acquisition act if the plaintiff be found to have been served with the statutory notices and if he failed, even thereafter, to apply for a reference, under section 18 of the land acquisition act, within the time provided by law, the suit filed by him must not be held to be maintainable. he contended furtherthat even if no notice had been served on the plaintiff, even then the suit must fail, because there being a special remedy provided by the land.....
Judgment:

Banerjee, J.

1. (After stating the facts, proceeded:) Mr. Jitendra Kumar Sen Gupta, learned Advocate forthe appellants, argued three points for our consideration in this appeal. He contended that the Court below was wrong in holding that the plaintiff had not been served with notices either under Section 9 or under Section 12(2) of the Land Acquisition Act if the plaintiff be found to have been served with the statutory notices and if he failed, even thereafter, to apply for a reference, under Section 18 of the Land Acquisition Act, within the time provided by law, the suit filed by him must not be held to be maintainable. He contended furtherthat even if no notice had been served on the plaintiff, even then the suit must fail, because there being a special remedy provided by the Land Acquisition Act, no remedy, by way of a suit was available to the plaintiff. Lastly, he contended that the plaintiff and defendant Nos. 4 and 11 had waived their right to claim the compensation money by reason of the settlement between them and defendant No. 1 whereby they received a sum of Rs. 3000/- in settlement of their disputed claim and they should not be allowed to claim more.

2. We propose to take up the second of the three points argued by Mr. Sen Gupta, first of all, because if that point succeeds the other points need not be considered at all.

2a. The question as to where the ordinary jurisdiction of the Civil Court is ousted when astatute creates a special jurisdiction and provides for a special remedy is not very easily to be answered. In Craies 'On Statute Law' (fifth edition) the question is dealt with in the following manner :

'The provision by a statute of a particularremedy for the infringement of a right of propertycreated, enacted, or recognised as re-enacted doesnot oust the jurisdiction of the High Court toprotect the right by equitable remedies, such asinjunction, unless express provision is made excluding such remedies. This rule, it would seem, applies even where the particular remedy bars acommon law right of action.But if * * * * it appears that thestatutory right could not without very great inconvenience co-exist with the ordinary common lawright, and so must have been intended as a substitutional, not an additional remedy, the common lawremedy will be held to have been taken away.'

3. In Maxwell on Statute (9th Edition) p. 134, the following passage appears:

'It is, perhaps, on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject, that so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the Superior Courts. It is supposed that the Legislature would not make any important innovation without a very explicit expression of its intention; specially since in recent years such an intention has often been very explicitly expressed. It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the Legislature intended to deprive the superior Court of the jurisdiction which it already possessed over the same cases.'

and at page 138 of the book there is the further observation:

'where, indeed, a new duty or cause of action is created by statute and a special jurisdiction out of the course of the common law is prescribed, there is no ouster of the jurisdiction of the ordinary court for they never had any.'

Keeping in view the above observations, we have to examine the relevant provisions of the Land Acquisition Act 1894 (hereinafter referred to as the Act).

4. The preamble to the Act states that the enactment was made because it was expedient to amend the law for the acquisition of land needed for public purposes and for companies and for determining the amount of compensation to be made on account of such acquisition.

5. Sections 9, 12, 18, 30 and 31 of the Act are set out hereinbelow, in so far as they are material:

'Section 9(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.

2. Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.

3. The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act far persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate.

4. In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1866.'

'Section 12(1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

2. The Collector shall 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.''

'Section 18(1) Any person interested who hasnot 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 the compensation, the persons to whom it is payable or the appointment of the compensation among the persons interested.

2. The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made :

(a) if the person making it was present orrepresented before the Collector at the time whenhe made his award, within six weeks from thedate of the Collector's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, Sub-section (2), or within six months from the date of the Collector's award which ever period shall first expire.'

'Section 30. When the amount of compensation has been settled under Section 11, if any dispute arises 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 the Collector may refer such dispute to the decision of the Court.'

'Section 31(1) on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

2. If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted:

Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount :

Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.'' xxxxx

6. It will appear from the sections quoted above that while Section 18 lays down a time limit, there is no time-limit for a reference under Section 30 of the Act.

7. On the question whether there is any right to agitate in a suit the settlement of compensation made by a competent Court, the earliest authority appears to be the case reported in Rajah Nilmoni Singh v. Ram Bandhoo Roy, 8 Ind App 90 (PC). That was a case under the earlier Land Acquisition Act (Act X of 1870). Sir Robert P. Collier, who delivered the judgment, observed :

(a) 'Under the circumstances of this case it will be enough to refer to three of the clauses.It appears that in certain cases an award of compensation may be made by the Collector, as between the Government and the claimants. Section 14 is in these terms : 'If the Collector and the persons interested agree as to the amount of compensation to be allowed, the Collector shall make an award under his hand for the same;' and there follow provisions that it shall be final. Clause 38 is in these terms :

'When the amount of compensation has been settled under Section 14, if any dispute arises as to the apportionment of the same; or any part thereof, the Collector shall refer such dispute to the decision of the Court.' Section 39 goes on to say : 'When a reference to the Court has been made under Section 38 the Judge sitting alone shall decide the proportions in which the persons interested are entitled to share in such amount.' It further provides that : 'An appeal shall lie from such decision to the High Court, unless the Judge whose decision is appealed from is not the District Judge, in which case the appeal shall lie in the first instance to the District Judge.' The proceedings in this case were under these sections. Under Section 14, the Collector made an award for the whole amount of the compensation, which was, in round numbers, Rs. 15,000/-. There was a dispute between the Rajah and the tenants, as they may be called, with reference to the apportionment of the amount between them. The question was duly referred to a Judge sitting alone to decide the proportions in which the persons interested were entitled to share, and that Judge made a decision in pursuance of such reference, whereby he awarded to the Rajah Rs. 84/-, and to the other claimants, of whom there are a great number, the rest of the compensation money. The Rajah did not appeal from this decision as he had a right to do, but he brings the present suit for the purpose of in effect setting it aside.''

(b) 'It has been very fairly admitted by Mr. Doyne that, unless he can avail himself of Section 40 the procedings which have been taken are conclusive as to the amount and apportionment of the compensation. Section 40 is in these terms : 'Payment of the compensation shall be made by the Collector, according to the award, to the persons named therein, or, in the case of an appeal under Section 39, according to the decision on such appeal; provided'--and this is the part of the section on which he relies--'that nothing herein contained shall affect the liability of any person who may receive the whole or any part of any compensation awarded under this Act to pay the same to the person lawfully entitled thereto'. He contends that, under that proviso, the Rajah is entitled to bring this suit. It appears to their Lordships that the proviso has no such effect Such a proviso, which appears to have been but a repetition of a provision in a previous Act in pari materia, is necessary in this, as in almost all Acts of a similar character. It is necessary for the Government, or the persons or company entitled to take property compulsorily, to deal with those who are in possession or ostensibly the owners but it may happen, and frequently does happen, that the real owners,possibly being infants or persons under disability, do not appear, and are not dealt with in the first instance; and therefore a provision of this sort is necessary for the purpose of enabling the parties who have a real title to obtain the compensation money.''

8. The other case under the old Act, which we need examine, is the case reported in Harmutjan Bibi v. Padma Lochan, ILR 12 Call 33. In that case the plaintiff-appellant, as one of the persons believed to be interested in the land to be acquired, was served by the Collector with a notice under Section 9 of the Act. She did not appear or make any claim before the Collector. The Collector referred the matter to the Court, because some interested persons did not appear and some of the other interested persons did not accept the award. A notice Was then issued to the plaintiff under Section 19 of the Act. The plaintiff did not appear also before the Court. Thereupon, the Court apportioned the compensation money amongst the appearing defendants and two other persons, who were no parties to the proceedings. No fresh notice was served on the plaintiff. Thereafter, the plaintiff filed a suit to recover from the defendants a share in the compensation money received by them on the allegation that a portion of the acquired land was included within her taluk and that statutory notices had not been served on her. The trial Court and the Court of first appeal both found that notices had been served on the plaintiff and she being a party to the land acquisition proceedings wag bound by the award and not entitled to Tiring the suit. The plaintiff took a second appeal to the High Court. Wilson and Beverley, JJ. allowed the appeal with the following observations :

'It seems clear from these words that the apportionment of the compensation is intended to be a distinct proceeding from that of settling the amount and that the dispute is only decided as between those persons who are actually before the Court. If it is intended to bind any other person not then before the Court and not a party to the dispute, notice of the further proceeding should, we think, be served on such person. In this case the plaintiff admittedly had no notice that the compensation money was to be apportioned by the Court. She may well have been content to let the amount of compensation be settled by the Collector, or by the Court, as the case might be. It not unfrequently happens that the persons interested do not appear, and the amount of compensation has to be settled in their absence. But we are not aware that it has ever been ruled that by their absence they have disentitled themselves to receive the amount which may be found due to them. Neither in our opinion can it rightly be said that when the amount of compensation has without notice to them been apportioned and paid away to third parties, they are barred from recovering their share of the money because they omitted to appear before the Court.

'In deciding this question, the lower Courts have relied upon the ruling of the Privy Council an the case of ILR 7 Cai 388 (PC), but we think that that decision does not necessarily govern thepresent suit. In that case the plaintiff was admittedly a party to the apportionment proceedings, and it was held that he was bound by those proceedings and could not re-open the matter by bringing a suit under the proviso to Section 40. Their Lordships were of opinion 'that the Courts in India, who both concur on this point, have rightly held that this proviso applies only to persons whose rights have not been adjudicated upon in pursuance of Sections 38 and 39. If then we are right in holding that the plaintiff in this suit was not a party to the apportionment proceedings, the Privy Council decision is direct authority to show that she is not barred from suing under Section 40.'

9. The next case on the point, possibly the first case under the present Act is the one reported in Sm. Punnabati Dai v. Rajah Punmanund Singh, 7 Cal WN 538. In that case the plaintiff, who had claimed, before the Collector, the compensation money for the required land was not awarded anything. She did not apply for a reference. Later on she filed a suit claiming that the defendants, who had received the compensation money be ordered to repay the same to her. The suit was resisted on the plea that the Land Acquisition Act allowed to the plaintiff a certain remedy; she did not avail of the remedy; it was not open to her to get the same remedy in a civil suit. It was further pleaded that under the Land Acquisition there was a period of limitation fixed for an application for a reference; if then it be held that the person, who had appeared before the Collector, can still then bring a suit, it would be allowing her to circumvent the law of limitation. Gooroodag Banerjee, J. (Pargiter, J. sitting with him) overruled both the objections to the maintainability of the suit with the following observations :

(a) 'The question is One of some nicety and not altogether free from doubt and difficulty. But after giving our best attention to the arguments on both sides, the conclusion we arrive at is that the plaintiff is not precluded from maintaining this suit merely by reason of her having appeared before the Collector and asked the reference to the Civil Court on the question of apportionment; and our reasons are shortly these : The award of the Collector who under Section 11 is no doubt authorised to deal with the question of apportionment, is declared by Section 12 of the Act to be final except as thereafter provided, only as between the Collector on the one hand and the body of claimants on the other, and not as between the claimants inter self there is any question raised as between the claimants, that can be determined only by the Civil Court. And when there has been no reference made, there has been no adjudication of the rights of the claimants inter se. To hold nevertheless that a claimant is precluded from advancing his or her claim by a suit in the Civil Court as provided by the last proviso of Sub-section (2) of Section 31 of the Act, merely because such person appeared before the Collector would be to extend the doctrine of constructive res judicata a great deal too far. The view we take is in accordance with that taken by the Privy Council in the case of 8 Ind App 90 : ILR 7 Cal 388 (PC).'

(b) 'Their Lordships decided the case under the Old Act X of 1870 and the proviso that their Lordships had to construe is word for word the same as the last proviso to Sub-section (2) of Section 31 of the present Act; and their Lordships referring to an adjudication in pursuance of Sections 38 and 39 go clearly to show that it is an adjudication of the Civil Court upon a reference by the Collector that their Lordships had in view.'

(c) 'Then as to the contention that the limitation of six weeks provided in proviso (a) Sub-section (2) of Section 18, being rendered nugatory, we will only observe that there is no absolute limitation as to time, seeing that S. 33 of the present Land Acquisition Act authorises the Collector of this own motion to make a reference to the Civil Court upon any question of disputed apportionment.'

10. The other case we need consider in this connection is the decision reported in Bhandi Singh v. Ramadhin Roy, 10 Cal WN 991. In that case certain persons who were parties in a land acquisition proceeding, being dissatisfied with the apportionment of the compensation money made by the Collector obtained a reference to the Court under Section 18 of the Land Acquisition Act. But as they did not appear at the hearing of the reference, it was struck off. They thereafter instituted a suit in the Civil Court for the apportionment of the compensation money. The suit succeeded in the trial Court but was dismissed by the first appellate Court. A second appeal at the instance of the plaintiff failed because the High Court was of opinion that the suit was barred under Sections 102 and 103 of the Civil Procedure Code in 1882 (corresponding to Order 9, Rules 8 and 9 of the Code of Civil Procedure, 1908). In course of the judgment their Lordships also considered the point as to whether a party who had once availed himself of a reference to the Court, under Section 18 of the Land Acquisition Act, could again ask for an opportunity to litigate the same matter in the Ordinary court. Answering the question in negative, Mookerjee, J. Observed :

'The question therefore arises whether under these circumstances, when statutory rights and liabilities have been created and jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, is such jurisdiction exclusive or is it concurrent with that possessed by the ordinary Courts. In my opinion, such jurisdiction is exclusive and has to be exercised subject to the exception contained in the Statute itself; for it is an elementary rule of construction of Statutes, as stated by Lopes, L. J in R. v. County Court Judge of Essex (1887) 18 QBD 704 at p. 708, that in the case of an Act which creates a new jurisdiction, a new procedure, new forms or new remedies, the procedure, forms or remedies there prescribed and no others must be followed. Substantially the same principle has been recognised in the case of Rama Chandra v. Secretary of State, ILR 12 Mad 105 where it wasi held upon the authority of Governor v. Meredith (1792) 4 T. R. 794, Stevens v. Jeacocke, (1848) 11 QB 731 and West v. Downman, (1880) 14 Ch D 111, that when by an Act of the Legislature, powers are given to any person for a public purpose from which an injury results to an individual, if the mode of redressing. the injury is pointed out by the Statute, the jurisdiction of the ordinary Courts is ousted and the party cannot proceed by action but must avail himself of the specific remedy provided by the Statute. This view is also supported to some extent by the decision of the Judicial Committee in ILR 7 Cal 388 (PC).'

(b) 'This position appears to me to be unquestionably right on principle; if it were not for the statute, the Local Government would not have any authority to acquire private property for public purposes without the consent of the owners thereof, but it is a primary requisite in the appropriation of lands for public purposes, that compensation shall be made therefor and consequently it was inevitable that the Statute should provide for some tribunal for the assessment of the compensation; where such tribunal has been provided, upon what principle can it be contended that recourse need not be had to the Court invested with special1 jurisdiction, but that the rights which would be non-existent without the Statute may be litigated in the ordinary courts. In my opinion the jurisdiction of the special court ought to be regarded as exclusive.'

11. Another case which we need examine in this context is the case of Saibesh Chandra Sarkar v. Bijoy Chand Mahatab, 26 Cal WN 506 : (AIR 1922 Cal 4). In that case, some lands, were acquired for a railway and the Collector alter serving notice under S. 9 of the Land Acquisition Act on the Zeminder and the Putnidar apportioned the compensation money half and half between them. Neither party applied for any reference to Court under Section 18 of the Land Acquisition Act and the Putnidar withdrew the amount awarded to him. The Zamindar thereupon brought a suit for recovery of the amount withdrawn by the Putnidar on the ground that under the Putni Kabuliat, the Putnidar was not entitled to any portion of the compensation money. The plaintiff's suit was sought to be defeated, inter alia, on the ground that the plaintiff having failed to apply for reference under Section 18 of the Land Acquisition Act, in the matter of apportionment his remedy was barred and he was not entitled to maintain the suit. The objection was overruled by both the Courts below and the defendant preferred a second appeal to the High Court. Allowing the appeal N. R. Chatterjea and Panton, JJ. Observed :

(a) 'The Act creates a special jurisdiction and provides a special remedy. And ordinarily when jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy such jurisdiction is exclusive.'

(b) 'A difficulty, however, arises from the proviso to Section 31 Clause (2) which lays down 'provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfullyentitled thereto.' There was a similar proviso to Section 40 of Act X of 1870 and the proviso was considered by the Judicial Committee in the case of ILR 7 Cal 388 (PC). In that case the Appellant Raja Nilmoni Singh was a party to the apportionment proceedings under S. 38 of Act X of 1870 and it was held that he could not reopen the question by a regular suit.'

(c) 'It is to be observed, however, that the Collector under Act X of 1870 had no power to decide the question of apportionment in any case. Whenever there was any question of apportionment, he was bound to refer the matter to the Court, i.e., the Civil Court, and the Civil Court had to decide the matter under Sections 38 and 39 of the Act. This appears to be the reason why their Lordships in Raja Nilmani Singh's case, 8 Ind APp 90 : ILR 7 Cal 388 (PC) (supra), referred to the adjudication under Sections 38 and 39.

Under Act I of 1894, compulsory referencewas abolished, and the Collector has full powerto deal with the question of apportionment underSection 11, and his award, subject to the other provisions of the Act, is final under Section 12, no doubt, asbetween the Collector on the one hand and thepersons interested on the other. The person aggrieved by the award whether his objection be tothe measurement of the land, the amount of compensation, the persons to whom it is payable, orthe apportionment of the compensation among thepersons interested may apply to the Collector fora reference to the Court.'

xxxxx

'That being so it is not reasonable to hold that the Act while Creating a special Court to decide such questions intended an adjudication of any question relating to apportionment by the Ordinary Civil Courts. The proviso as it stands under the present Act, or as it stood under the old Act, is very general in its terms. Admittedly it cannot be given effect to in its entirety it cannot be held that a suit lies notwithstanding a reference to the Court upon the application of a party under S. 18 or by the Collector of his own motion under Section 30. The proviso therefore must be given a limited application, and we think that it applies only to cases where the person is under a disability or is not served with notice of the proceedings before the Collector.

(d) 'In the case of 7 Cal WN 538, cited above the learned Judges, although they referred to the contention that there being a special remedy provided by the Act the general remedy was not available, did not discuss the question, and the observations of the Judicial Committee in Raja Nil-mani Singh's case, 8 Ind App 90 : ILR 7 Cal 388 (PC) (supra), as to the persons to whom the proviso was applicable do not ap,pear to have been considered by them. Then again, the contention raised in that case that a separate suit if allowed would enable a party to avoid the limitation prescribed by S. 18 namely, six weeks from the date of the Collector's award where the party was present before the Collector. Or six weeks of the receipt of the notice from the Collector, or six months from the date of the Collector's awarewhichever period shall first expire, was disallowed on the ground that there is no limitation prescribed for a reference under Section 30. Section 30, however, applies only to a reference made by the Collector of his own motion presumably before the final award is made; whereas S. 18 deals with a reference upon an application made by a party. For the above reasons therefore^ and with all respect to the learned Judges we are unable to follow the decision in the case of 7 Cal WN 538 (supra).'

12. The last case we need consider in this connection is the decision reported in Surya Single v. Golamjat Singh, 47 Cal WN 619. In that case Henderson, J. Observed :

'The question depends upon whether the case comes within the third proviso to S. 31(2) of the Land Acquisition Act which is in these terms :

'Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.' There has been a difference of judicial opinion, as to the interpretation to be given to this proviso. It was however held by the Privy Council in the case of ILR 7 Cal 388 (PC), that this proviso applies only to persons whose rights have not been adjudicated upon in pursuance of the special procedure. The concluding words' are these :

'Their Lordships are of opinion that the provisions in this Act for the settling of compensation are intended to be final; and that the amount and distribution of the compensation having been settled in this case by a competent Court and the decision not having been appealed against, the settlement is final, and the present suit cannot be maintained.' If the plaintiffs were not satisfied with the decision of the Judge, they should have appealed against it. In this connection I would merely refer to the decisions of this Court in the cases of 26 Cal WN 506 : (AIR 1922 Cal 4) and 10 Cal WN 991 : 2 Cal LJ 359.'

13. It will appear from the cases referred to above that decisions in this Court are not uniform and few have attempted at reconciliation of the discordant notes struck by learned Judges. However, the aforementioned cases are distinguishable on facts from the present case.

14. In ILR 12 Cal 33 (supra), the plaintiff was found to have received notice of the land acquisition proceeding but no notice of the proceeding for apportionment of the compensation money before the Court, was served on him. The reason which weighed with Wilson and Baverley, JJ. was that an apportionment reference was a proceeding distinct from a reference in the matter oi compensation and if a party had no notice of the apportionment reference, he or she wag free to bring a suit to recover the compensation money from a person, who had received the same without right or title thereto. In the present case the-reasong are stronger because here the plaintiff and the co-plaintiffs alleged not to have received any notice of the land acquisition proceeding at all.

15. In the case reported in 7 Cal W. N. 538 (supra), the plaintiff appeared before theCollector with a claim for compensation but failed to get any. She did not apply for a reference but straightway filed a suit against the person who had wrongfully received her share of thecompensation money. Their Lordships held that such a suit was maintainable on a two-fold reason, namely, (i) that the finality attaches to theCollector's award under Section 12 of the Act,only as between the Collector on the one hand and the body of claimants on the other and not as between the claimants and others, inter se and (ii)that to hold that a claimant was precluded from advancing his or her claim by a suit in the Civil Court, as provided by the last proviso of Subsection (2) of Section 31 of the Act, merely because such person had appeared before the Collector would be to extend the doctrine of constructive res judicata a great deal too far. The case we have to deal with is not the case as in 7 Cal W. N. 538 (supra).

16. The case in 10 Cal W. N. 991 . (supra) is wholly different in facts. There a reference under Section 18 of the Land Acquisition Act was dismissed for non-prosecution. The dismissal notwithstanding the plaintiff aspired to get the same remedy by way of a suit. That suit was held to be barred under Sections 102 and 103 of the Code of Civil Procedure, 1882. That is not the case in this appeal. The other observationsin the said decision, which we have already quoted, are in the nature of obiter dicta.

17. In the case reported in 26 Cal W. N. 506 : (AIR 1922 Cal 4) (supra) the plaintiff naci been served with a notice under Section 9. He did not take steps either before the Collector forapportionment of the compensation money, as he claimed, nor did he apply for reference but straightway filed a suit. In that context it was held that it was not reasonable to hold that the Act while creating a special court to decide such question intended adjudication of any question relating to apportionment by the ordinary Civil Courts. We have already noticed that the grievance of the plaintiff and the co-plaintiffs, in the suit, out of which this appeal arises, is that they had not received any notice of the land acquisition proceeding at all and therefore had no opportunityof either to appear before the Collector or apply for a reference. The present case, therefore,cannot be decided on the authority of the aforementioned decision.

18. The judgment by Hendcrson, J. in 47 Cal W. N. 619 (supra) need not detain us long. His Lordship made a reference to the existence of difference in judicial opinion, never attempted to reconcile the difference, but followed the line of cases which he liked. That decision is wholly unhelpful and we need not further refer to it.

19. We have now to consider the PrivyCouncil decision in 8 Ind App 90 (PC) (Supra)., In that case the right of suit was negatived on a two-fold ground. The main ground was that aperson, whose claim had once been adjudicated upon in the manner provided for in the Land Acquisition Act, was not entitled to have his claim re-opened and again heard in another suit. Theother ground was that the proviso to Section 40of the Land Acquisition Act, 1870 (corresponding to Section 31(2) of the present Act) did not confer any right of suit to every claimant, That proviso was enacted to enable parties, who had real title to the compensation money, but were not dealt with by the Collector, to obtain back the compensation, which may have been received by ostensible owners dealt with by the land acquisition authorities. The case that We have to deal with is not that case.

20. Having cleared the ground of case-law on the point we are now free to examine the point ourselves. In our opinion a person who has been served with a notice under Section 9 of the Land Acquisition Act as a person believed to be interested in the land, is not entitled to avoid the enquiry as to claims, to be made by. the Collector, under Section 11 of the Act. Jt is his duty, at that stage, to raise objection, if any, as to measurement compensation and apportionment. If he does not do so, the award made by the Collector shall be final and conclusive evidence as between the Collector and the persons interested, whether they appeared before the Collector or not, of the true area and the value of the land and the apportionment of the 'compensation amongst persons interested. This finality, however, is subject to certain other provision's in the Act to which we shall presently refer. Under Section 12(2) of the Act the Collector shall give immediate notice of his award to such of the persons interested as were not present personally or by their representatives, when: the award was made. Section 18 of the Act provides that any person aggrieved by the Collector's award may apply tor a reference to court within the special period of limitation provided in the Section. If he does not do so, it may be reasonable to hold that he does not become entitled to aspire for the same remedy by filing a civil suit. It is in that sense that it can be said that the Special jurisdiction created under Section 18 of the Act ousts the jurisdiction of ordinary Civil Courts. But if a person is not even served with a notice under Section 9 of the Act and for that reason fails to prefer his claim or objection before the Collector and on whom there is no notice served under Section 12(2) of the Act and for that reason fails to apply for a reference, within the statutory period it cannot be said that the special remedy under the Act being thus lost, such a person cannot seek his remedy in the ordinary court of law. The liability to resort to the special jurisdiction only arises when a person is alerted by the special notices provided for in the Act, namely notices under Sections 9 and 12(2). Thereafter it becomes the duty of such a person to pursue tfie proceeding and to 'take steps, in time, as provided in the Act. We, therefore, repel the argument advanced by Mr. Sen Gupta in the form that it was put.

21. It becomes necessary for Us to examine whether the notices under the Act were served on the plaintiff and the co-plaintiffs in time. The trial Court held that so far as the plaintiff was concerned there was no evidence that any notice, either under Section 9 or under Section 12(2) was served upon him. Mr. Sen Gupta contended thatthe Court below was wrong in not relying upon the service report on Ext. 'A' (the application for reference) which is to the following effect:

'From service report of notice under Section 12(2) L. A. Act it is seen that petitioners Mrityunjoy Roy and Baidya Nath Roy have duly received the notice on 30th April, 1950 with their signatures on the back of the petition (sic). Necessary order may kindly be passed.

Submitted by

Sd/Illegible.

19-6-50.'

22. The service returns are not before us. Who wrote the above quoted note on Ext. A does not appear. He may be the clerk, who was dealing with the files as the Court below finds. It may not be safe to proceed on a clerk's opinion about due service of notice. Then again, the clerk sought for necessary order on the note. The order that was passed by the Land Acquisition Collector isquoted below :

'The petition is definitely time-barred and ifcannot be entertained. Besides the award has been made in the name of Birendra Nath Banerji and his other brothers. The petition is therefore rejected.

Sd/- (Illegible)

19-6-50'

23. That order may amount to an implied acceptance of the note that the notice under S. 12(2) had been duly served. We are not sure of that. We are, however, not prepared to ever-emphasise the order because there is nothing to show thatthe Land Acquisition Collector at all applied his mind to the question of service of notice. Therefore, the trial Court was right in not accepting the clerical note aforementioned as evidence of service of notice under Section 12(2) of the Act So far as the notice under Section 9 is concerned there is no documentary evidence of service of the notice on the plaintiff.

24. Mr. Sen Gupta realised the difficulty and therefore, sought to argue that Baidyanath, pro forma-defendant No. 11, was really in charge of the acquired properties on behalf of his co-sharer uncle the plaintiff, and service of notice or notices on Mm was good service on the plaintiff r.s well. He contended that Baidyanath had admitted service of a notice of the Land Acquisition proceeding on him and he showed the notice to his uncle Mitan, the plaintiff, The evidence does not justify the conclusion that Baidyanath was an agent for the plaintiff and we are not prepared to accept service of notice on Baidvanath as service on Mitan as well. Service of notice on Motilal Marwari, pro forma-defendant No. 7 (lateron co-plaintiff No. 3) Sarat Chandra Dawn, pro forma-defendant No. 12 (later on co-plaintiff No. 2) and Ashalata, heir to Debibala, pro forma-defendant No. 13 (later on co-plaintiff) were denied by P. Ws. Nos. 3 and 4 and they could not be shaken in cross-examination. In these circumstances we agree with the trial Court that the statutory notices either under Section 9 or under Section 12(2) of the Land Acquisition Act were never served on the plaintiff and the co-plaintiff above-named and they had no opportunity of preferring their claim before the Collector or applying fora reference of the dispute, as to apportionment to a Court within the period of special limitation. In these circumstances, we hold that their right to maintain the suit, out of which this appeal arises was not barred by way of the provision of the Act.

25. We make it perfectly clear that those persons, on whom notices neither under section nor under Section 12(2) of the Act were served, are entitled to maintain a suit, of the description as the present one. We do not decide whether anybody else can maintain such a suit.

26. We now take up the last point argued by Mr. Sen Gupta, namely, there was a waiver of right to claim compensation by the plaintiff and pro forma-defendants 4 and 11, by way of a settlement, under which they received Rs. 3000/- in full settlement of their claim. There is no documentary evidence of the payment. The money, according to defendant No. 1, was paid to Balaram alone, but was meant for the plaintiff and Baidya Nath. This part of the evidence, the Court below was not inclined to accept and in our opinion very rightly. We, therefore, repel this last argument as well.

27. In the result, the appeal fails and isdismissed without costs.


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