Nasim Ali, J.
1. This rule was issued under the provision of Section 115, Civil P.C. upon the Land Acquisition Collector of Calcutta to show cause why his order dated 24th November 1937 rejecting the petitioner's application for reference under Section 18, Land Acquisition Act, should not be set aside. The Collector refused the petitioner's prayer for reference on the ground that he had received Be. 300 out of the compensation money awarded to him with, out protest. A preliminary objection has been taken by the Senior Government Pleader on behalf of the opposite party that this Court has no jurisdiction to interfere with the order of the Collector under Section 18, Land Acquisition Act, in revision under Section 115, Civil P. C and consequently the application for revision is not maintainable in law.
2. Section 115 of the Code authorizes this Court to revise the orders of the Court subordinate to this Court. In order to enable this Court to interfere with an order under Section 115 of the Code, it must be shown (1) that the order sought to be reviewed is that of a Court and (2) that such Court is subordinate to this Court. There is a divergence of judicial opinion on the question whether the Collector while dealing under Section 18 is a Court within the meaning of Section 115 of the Code. The conflicting views expressed in the reported oases are: (1) A Collector acts as an administrative officer when making a reference under Section 18 and is therefore not a Court: see Bhajani Lal v. Secy. of State : AIR1932All568 , Balkrishna Daji Gupta v. Collector, Bombay Suburban (1923) 10 AIR Bom 290, M.H. Mayet v. Land Acquisition Collector, Myingyan (1934) 21 AIR Rang 118 and Bhagaban Das Shah v. First Land Acquisition Collector : AIR1937Cal705 A Collector acts judicially while dealing with an application under Section 18 but is not a Court: see Abdul Sattar Sahib v. Special Deputy Collector, Vizagapatam (1924) AIR Mad 442 and Bhajani Lal v. Secy. of State : AIR1932All568 A Collector acts judicially while acting under Section 18 and is a Court: see The Administrator-General of Bengal v. The Land Acquisition Collector 24 Parganas (1908) 12 CWN 241, Krishna Das Roy v. Land Acquisition Collector Pabna (1912) 16 CWN 327, Leath Elies Joseph Solomon v. H. C. Stork : AIR1934Cal758 and Ahmad All Khan v. Secy. of State (1932) 19 AIR Oudh 180.
3. On the question whether the Collector (assuming that he is a Court while dealing with applications under Section 18 is a Court) is subordinate to the High Court within the meaning of Section 115 of the Code, a Full Bench of the Madras High Court has observed as follows:
Assuming that the Collector is a Court, is he a Court subordinate to the High Court within the meaning of Section 115, Civil P.C.? In my judgment, he is not. There is no power of appeal from his decision to any one, either to the District Court or to this Court. There is nothing in the Act to show that he is in the true sense of the word in any way subordinate to the High Court. As far as Madras is concerned, the Courts recognized are those Courts which are referred to in various statutes, such as the Madras Civil Courts Act. His Court, if a Court at all, must be Civil Court. The Civil Courts are enumerated in the Civil Courts Act and the Court of the Collector sitting under the Land Acquisition Act finds no place in the enumeration. On the whole, I think, I must come to the conclusion that even if the Collector, exorcising his functions under Section 19 although those functions are as I have pointed out, judicial functions, is a Court, ha is not a Court subordinate to the High Court: Abdul Sattar Sahib v. Special Deputy Collector, Vizagapatam (1924) AIR Mad 442 at p. 367.
4. The question again came up for decision before the Special Bench of the Allahabad High Court in Bhajani Lal v. Secy. of State : AIR1932All568 . In that case King J., who delivered the judgment of the Special Bench observed as follows:
If it be admitted for the sake of argument that the Collector is a 'Court' we think that he is certainly not a Court subordinate to the High Court. The High Court has no Appellate Jurisdiction over the Collector and for that reason, it is difficult to hold that the Collector is a Court sub-ordinate to the High Court, even if he is a 'Court' in any sense of the word. Section 55, Land Acquisition Act, gives power to the Local Government to make rules for the guidance of officers in all matters connected with the enforcement of the Act. This would, in our opinion, include power to make a rule for the guidance of a Collector when receiving an application under Section 18. No authority is given to the High Court to make rules for the guidance of the Collector and for this reason also we think that the Collector cannot be held to be subordinate to the High Court.
5. In The Administrator-General of Bengal v. The Land Acquisition Collector 24 Parganas (1908) 12 CWN 241 and in Krishna Das Roy v. Land Acquisition Collector Pabna (1912) 16 CWN 327 it was assumed that if the Collector acting under Section 18 was a Court, he must be a Court subordinate to the High Court. The question whether he is a Court sub-ordinate to the High Court was neither raised nor decided in those two oases. In Leath Elies Joseph Solomon v. H. C. Stork : AIR1934Cal758 this Court observed as follows:
The High Court has no powers of revision unless the case 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 coma 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 Rent Collector under the Calcutta Kent Act have been held to be subject of the revision of the High Court an in H.D. Chatterjee v. L.B. Trivedi (1922) 9 AIR Cal 427 and Allen Bros & Co. v. Bando & Co. (1923) 10 AIR 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.
6. It is true that in that case the learned Judges have observed that the petition for reference under Section 18 is practically a part of the proceeding before the Land Acquisition Court. But the learned Judges in that case have also observed that technically speaking Section 115, Civil P.C., may not be applicable.
7. I cannot add usefully anything to the reasons which have been given by the learned Judges in the cases cited above in support of the contention of the learned Senior Government Pleader that the Land Acquisition Collector, assuming that he is a Court, is not a Court subordinate to the High Court. It is true that in Solomon's case this Court interfered under Section 115 but in that case no relief under Section 45, Specific Relief Act, could be obtained by the petitioner in that case as the property acquired in that case was outside the original jurisdiction of this Court. In the preset case the property acquired is situated within the original civil jurisdiction of this Court and consequently it may well be that there was some remedy available to the petitioner under the original and not appellate jurisdiction of this Court. In this view of the matter, we give effect to the preliminary objection raised by the learned Senior Government Pleader and discharge this rule. There will be no order for costs in this rule.
8. I agree.