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Leath Elies Joseph Solomon Vs. H. C. Stork - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1934Cal758
AppellantLeath Elies Joseph Solomon
RespondentH. C. Stork
Cases ReferredKrishna Das v. Land Acquisition Collector Pabna
Excerpt:
- .....rejecting the petitioner's application requiring a reference to the collector under section 18, land acquisition act for decision of her objection to the amount of an award made by the land acquisition collector under the provisions of section 11 of the act. the application was rejected on the ground that it was noli within the time allowed by law. a preliminary point was raised that this court has no jurisdiction in revision either under section 115, civil p. c., or under section 107, government of india act. the high court has no powers of revision unless the ease is decided by a court subordinate to the high court, viz. subject to the appellate jurisdiction of the high court. it is true that a decision of the collector as to the amount of an award may indirectly come before the.....
Judgment:

1. This Rule has been issued to the learned 1st Land Acquisition Collector in connexion with his order dated 1st September 1933 rejecting the petitioner's application requiring a reference to the Collector under Section 18, Land Acquisition Act for decision of her objection to the amount of an award made by the Land Acquisition Collector under the provisions of Section 11 of the Act. The application was rejected on the ground that it was noli within the time allowed by law. A preliminary point was raised that this Court has no jurisdiction in revision either under Section 115, Civil P. C., or under Section 107, Government of India Act. The High Court has no powers of revision unless the ease is decided by a Court Subordinate to the High Court, viz. subject to the appellate jurisdiction of the High Court. It is true that a decision of the Collector as to the amount of an award may indirectly come before the High Court in ! its appellate jurisdiction where a reference has been made to the civil Court under Section 18, Land Acquisition Act, and It is argued that on this ground the orders of the Collector are subject to revision just as the orders of the Sent Controller under the Calcutta Rent Act have been held to be subject to the revision of the High Court in the cases of 1922 Cal. 427 Chatterji v. L.B. Tribedi, 1922 Cal 427 and 1923 Cal. 169 Allen Bros. & Co. v. Bando and Co. 1923 Cal 169. The fact remains however that the Collector cannot be said to be a Court within the meaning of Section 115, Civil P. C., or of Section 107, Government of India Act. There is abundant authority for this view. Reference may be made to the cases of 38 Cal. 230 British India Steam Navigation Co. v. Secretary of State, (1911) 38 Cal. 230; 32 Cal. 605 Ezra v. Secretary of State, (1905) 32 Cal. 605 36 Ezra v. Secretary of State, (1903) 30 Cal. 36; 1924 Mad. 442 Abdul Sattar Sahib v. Special Deputy Collector, Vizagapatam, 1924 Mad 442; 1923 Bom. 290 Balkrishna Daji v. Collector, Bombay Subarban, 1923 Bom 290 and 1934 Rang. 118 Mayet v. Land Acquisition Collector, Myingyau, 1934 Bang 118. The petitioner on the other hand relies on the cases of this Court in which it has been held that this Court is entitled to revise an order of the Land Acquisition Collector refusing to refer a case to the civil Court under Section 18 of the Act, viz., 120 CWN 241 Administrator-General of Bengal v. Land Acquisition Collector, 24 Parganas, (1908) 12 CWN 241 and 13 IC 470 Krishna Das v. Land Acquisition Collector Pabna, (1912) 13 I C 470. These decisions have not been overruled and the petitioner supports them by reference to the decisions in 1917 Pat. 176 Saraswati Pattack v. Land Acquisition Deputy Collector, Champaran, 1917 Pat 176; 1916 Lah. 37 Secretary of State v. Jiwan Bukgh, 1916 Lah. 37; 16 O. C. 374 Hari Das Pal v. Municipal Board, Lucknow, (1918) 22 IC 652 and to the cases under the Rent Act, 1922 Cal. 427 H. D. Chatterji v. L.B. Tribedi, 1922 Cal 427 and 1923 Cal. 169 Allen Bros. & Co. v. Bando & Co. 1923 Cal 169.

2. There can be no question that the act of the Collector in refusing to make a reference under Section 18, Land Acquisition Act, is a judicial act. The petition for a reference corresponds to the plaint in a suit. It initiates judicial proceedings in the Land Acquisition Court which by virtue of Section 54, Land Acquisition Act, is a Court subordinate to the High Court and the petition for reference is practically a part of those proceedings. Though therefore technically Section 115, Civil P. C, may not be applicable it was hardly the intention of the legislature that there should be no remedy against the wrongful rejection of an application for reference. It may be noted in this connexion that no relief under Section 45, Specific Belief Act, could be obtained outside the jurisdiction of the Chartered High Courts. In these circumstances and in view of the previous rulings of this Court, 12 C. W. N. 241 Administrator-General of Bengal v. Land Acquisition Collector, 24 Parganas, (1908) 12 CWN 241 and 13 IC 470 Krishna Das v. Land Acquisition Collector Pabna, (1912) 13 I C 470, we will not decide against the petitioner on the preliminary point.

3. As regards the merits: the question of limitation turns upon the point whether the applicant was present or represented before the Collector when the award was made. If she was present her application was barred by time for the award was made in March 1933, whereas under Section 18, Clause 2(a), the application must be made within six weeks. If on the other hand she was not present or represented the application may be made within six weeks of the receipt of 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. As in this case the applicant received no notice under Section 12(2), she would have time up to six months and was within time on 31st August. In dismissing her application the learned Land Acquisition Collector says that she was present when the award was made because she was there throughout the discussions which culminated in the award; she knew fully the terms proposed in fact the delay in making out the award as finally proposed and accepted by the other parties was entirely due to her unwillingness to join the otherwise general agreement. This is not quite accurate since another party was also objecting to the proposed terms. In showing cause under the rule the learned Land Acquisition Collector says that the fact that the petitioner was not present on 30th March does not alter the position. She was present when it was finally determined that the award would be for Rs. 4,10,000. He considers that the award is ' made ' when it is settled what the award is to be ; after that it takes several days to draw up the actual award so determined-a long and complicated document requiring great care and intricate calculation in this case and adds:

in practice it would be absurd as well and a great in convenience to the parties, if they were again recalled when the Collector only signs his name to an award already determined merely in order to clarify an imaginary intention of Section 18(2)(a).

4. The learned Collector appears to have overlooked the terms of Section 11 of the Act, directing that an award shall be made ' under his hand ' and contain particulars of apportionment amongst those interested as well as the total compensation. It follows that the award can not be said to be made until it is so drawn up and signed. In the present case this took place on 30th March and the affidavits show that the petitioner was not herself present on that date. The learned Land Acquisition Collector was therefore not entitled to reject her application as barred under Section 18(2)(a) by six weeks limitation on the ground that she was so present. However his order can be supported on the ground that though she was not present she was represented and so comes within the terms of Section 18(2)(a), for under the orders of this Court she was represented by a receiver of the estate a portion of which is the property in question. Under the direction of this Court the receiver was to accept the award on behalf of the claimants and there is no doubt that when he appeard before the Collector on 30th March and accepted the award he was representing them under the orders of the Court. This would not take away the petitioner's right to make a reference, especially inasmuch as the appointment of the receiver was ' without prejudice to the contentions of the parties concerned.

5. Beading the petition for appointment of the receiver together with the terms of the appointment and the directions given to him it is clear that he was entitled to represent the claimants before the Land Acquisition Collector with the reservation only that his appointment would not prejudice their contention that the amount of the offer was too low. The effect of this would be that they were entitled to make a reference against the award under Section 18 of the Act but inasmuch as they were represented before the Collector Section 18, Clause 2(c) would apply an the period of limitation would be six weeks from the date of the award, viz. six weeks from 30th March. Under Order 40, Rule 1 the Court was entitled to so appoint a receiver and give him such powers. There was no-appeal against the order appointing him and it must be taken that the petitioner who had notice of his appointment accepted his representation of her before the receiver and as she did not take advantage of her right to make reference within six weeks her claim to do so was barred and her application on 31st August, out of time. The rule is accordingly discharged.

6. Civil Revision Case No. 100 of 1934,- By this rule the learned Land Acquisition Collector was asked to show cause-why his order rejecting an application of the petitioner for a reference under Section 18, Land Acquisition Act, should not be set aside. The application was rejected on the ground that the Official Receiver of the estate having accepted the award the petitioner can not claim a reference. In rejecting the application on this ground the learned Land Acquisition Collector has entirely failed to take into account the opening clause in the receiver's letter of appointment which makes the appointment without prejudice to the contentions of the parties concerned. The principal contention of the petitioner in his petition to the Court for the appointment of a receiver was that the offer of Rs. 41,000 which was being made by the Collector was too low, and by the introduction of this clause there can be no doubt that the right of the petitioner to make a reference was retained. It was clearly the intention of the Judge to allow the petitioner to dispute the question of valuation just as if the receiver had not been appointed. The learned Land Acquisition Collector was therefore not entitled to reject his application on the ground that his right was taken away by the appointment of a receiver. Even apart from the directions of the Court in this respect sunder the General Law relating to receivers the petitioner would not lose his right of reference by the appointment of a receiver:

The appointment does not effect existing contracts or rights of action between the party whose property is placed in the hands of the Receivers': see Woodroffe's Law Relating to Receivers, p. 221.

7. The order rejecting the application must however be supported on the ground of limitation for the award was made on 30th March and since the petitioner was represented before the Collector at his own request by the receiver under the directions of this Court his application should have been made within six weeks of 30th March in fact it was not made until 20th September and was therefore out of time and not maintainable. The rule is accordingly discharged. We make no order as to costs of this rule.


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