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Roshan Vs. S.D.O. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. No. 152 of 1972
Judge
Reported inAIR1981J& K18
ActsJammu and Kashmir Land Acquisition Act, 1990 B.K. - Section 18; ;Constitution of India - Article 226
AppellantRoshan
RespondentS.D.O. and ors.
Appellant Advocate T.S. Thakur, Adv.
Respondent Advocate M.S. Malik, Adv.
DispositionPetition dismissed
Cases ReferredGovinda Pillay v. Dist Collector
Excerpt:
- .....act. section 18 of the land acquisition act reads as follows :--'reference to court.-- (1) any person interested who has not 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 obiection to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment 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 or represented before the collector at the time when he made his award within six weeks from the date of the collector's award;(b) in other cases,.....
Judgment:
ORDER

A.S. Anand, J.

1. Land measuring 9 kanals and 8 marlas comprising khasra No. 127, situate at village Katra, Tehsil Reasi was acquired by the State for a public purpose i. e. for construction of a lorry Adda at Katra. The acquisition proceedings having been initiated, the award was delivered by the Collector on 22-2-1971.

2. Respondents 3 to 5 are admittedly the owners of that land. The petitioner filed an application before the Collector under Section 18 of the Land Acquisition Act stating therein that though he was protected tenant of the land in question, and as such an interested person, but he had not been given any notice about the acquisition proceedings and therefore had no occasion to agitate his claim and on learning about the award, in September 1972, he was approaching him with the request that a reference be made so that he could also claim compensation. The Collector vide order dated 20-12-1972 refused to make a reference to the District Judge.

3. The petitioner challenges the impugned order on two grounds namely : (1) that the Collector had no jurisdiction to hold that he was not an interested person as the rights of the protected tenant had not been conferred on him because a Collector while dealing with an application under Section 18 of the Land Acquisition Act has no power to adjudicate upon the locus standi of the petitioner; and (2) that the view expressed by the Collector to the effect that the application of the petitioner was barred by time was erroneous and not sustainable in law.

4. The precise argument of Mr. T. S. Thakur, learned counsel for the petitioner, is that it is not open to the Collector to determine whether the person making an application seeking reference under Section, 18 of the Land Acquisition Act is an interested person or not and that this enquiry can be made only by the District Judge Reliance is placed on AIR 1961 Orissa 39, AIR 1956 Puni 231, AIR 1961 Andh Pra 387 and AIR 1959 Pat 343, AIR 1957 Ker 152. I shall deal with these authorities in the later part of the iudgment.

5. With a view to properly appreciate the argument, it would be desirable to first refer to the provision of Section 18 of the Land Acquisition Act. Section 18 of the Land Acquisition Act reads as follows :--

'Reference to Court.-- (1) Any person interested who has not 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 obiection to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment 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 or represented before the Collector at the time when he made his award within six weeks from the date 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, whichever period shall first expire.'

6. The opening words of the section that the application can be made by 'any person interested' are significant. Before a Collector can make a reference he must be satisfied (1) that the application is by an interested person; (2) that such person has not accepted the award; (3) that the dispute raised by the person is with regard to measurement of land or the amount of compensation or an apportionment of compensation amongst the persons interested. If these grounds are satisfied then subject to the limitations prescribed in Sub-section (2) a reference has to be made by the Collector to the District Judge. If the arguments of Mr. Thakur were to be accepted then it would imply that a Collector is merely a post office having no function to discharge. To my mind it does not appear to be a correct position. A Collector cannot, of course, go into the merits of the claim of the person seeking the reference but to say that the Collector has not even to see whether the person seeking the reference is an 'interested person' means that the Collector must always make a reference whenever an application is made to him. Taking the argument to its logical conclusion, it would imply that even if a frivolous application is made to a Collector by a person stating that he is an interested person though he has no interest in the land, whatsoever, the Collector must make a reference and thereby drag the other interested persons to unnecessary litigation. To me, however, it appears that the jurisdiction of the Collector to make a reference is contingent upon the satisfaction of the conditions laid down in the Section. The Collector would be failing in exercise of the jurisdiction, if without looking into the question whether the conditions envisaged by Section 18 have been satisfied or not, he makes the reference to the District Judge simply because the applicant seeks a reference. Doing so would imply that the Collector merely acts as a post office and does not apply his mind to the application. The Collector has no authority to make a reference if he finds that the applicant is not a person 'interested' within the definition of the expression given in Section 3(b) of the Land Acquisition Act. Whether the applicant is in fact interested or not; whether ultimately he is found to be interested in the land or not and whether his claim has any merit or not are matters which are required to be considered by the court to which the reference is made and cannot be adjudi-cated upon by the Collector, while dealing with an application under Section 18 of the Land Acquisition Act. Once the Collector is satisfied that the person seeking the reference is prima facie an interested person then subject to the satisfaction of the other conditions contained in Section 18 the Collector would have to make a reference to the District Judge and it would not be open to him to decide the merits of the claim raised in the application.

7. Coming now to the authorities cited by learned counsel for the petitioner.

8. In Land Acquisition Officer, Guntur v. Patibandla Mallikamba, AIR 1961 Andh Pra 387, the point for consideration was whether it is open to a party to have directly made an application under Section 18(1) of the Act to the Court. After analysing the various provisions of the Act, it was held that there is no provision in the Act authorising an aggrieved party to directly approach the principal Civil Court of Original jurisdiction under the provisions of the Land Acquisition Act (Para 7 of the judgment be noticed with advantage). This authority, therefore, does not assist the petitioner in the present case as the question was much different.

9. In State of Bihar v. Dr. G. H. Grant AIR 1959 Pat 343, it was opined :

'The definition of 'person interested in the land' according to this Act is not exhaustive. What it really means is that it includes any person claiming interest in the amount of compensation whether it be a valid claim or not. The Collector is bound to treat every person who claims compensation as an interested person. He should include him in the award under Section 11, even though he may award him nothing.

The Collector is not competent to decide the validity of the claim'.

10. Thus it is obvious that this authority only lays down that the Collector is not competent to decide the validity of the claim but the judgment is no authority for the proposition that the Collector is merely a post office and whether or not the applicant is even prima facie an 'interested person' the Collector is bound to make a reference at his asking.

11. Coming now to Chintada Kasi-vishwanandham v. Sub-Collector, Berhampur, AIR 1961 Orissa 39. This judgment, as is apparent from para 5 thereof was given on the concession made by the Advocate General who, on the facts and circumstances of that case, conceded that the order was illegal. Apart from this a careful reading of the judgment would show that after a person has put in his claim before the award is made and has been non suited by the Collector, it is open to him to seek a reference and the Collector cannot refuse to make a reference on the ground that he had not found his claim tenable at the time of making the award. There is no quarrel with this proposition because a Collector cannot sit in judgment, to confirm his own finding. After the claim of a person is rejected, he figures in the award as one whose claim has been rejected and, therefore, he would be, for all intents and purposes, a 'person interested'. This authority is, therefore, clearly distinguishable and does not help the petitioner.

12. Kako Bai v. Land Acquisition Collector, Hissar, AIR 1956 Punj 231. This authority instead of helping the petitioner goes directly against him. It was laid down thus :

'It is not open to the Collector to decide an application under Section 18 on merits of the objections raised therein and then refuse to refer the matter to civil court. All that the Collector can do is to decide whether the formalities laid down in Section 18 have been complied with or not.'

13. I find support for my view in this judgment. Coming now to the last judgment cited by Mr. Thakur i. e. Govinda Pillay v. Dist Collector, AIR 1957 Ker 152. It lays down that so 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 a reference merely because he may think it is not. This judgment also, as such, is clearly distinguishable and it does not support the case of the petitioner that the Collector must make a reference even if the Collector prima facie finds that the applicant laying a claim to some interest in the compensation, has no locus standi, whatsoever.

14. In the instant case, the Collector in the impugned order declined to make the reference at the instance of the petitioner on the twin grounds that he was not an interested person and that his application was barred by time. For coming to the conclusion that the petitioner was not an interested person, the Collector opined that the claim of the petitioner to be an interested person was based on his assertion that he was a protected tenant of the disputed land. In view of the prohibition contained in the Tenancy Act, that a tenant over the land within the limits of the Notified Area Committee cannot become a protected tenant, the Collector was fully justjfied in holding that the petitioner's claim to be an interested person was contrary to law, as admittedly the land falls within the limits of the Notified Area Committee and in terms of Section 15-C (xi) of the Tenancy Act 1923, no rights of the protected tenant can be acquired by a tenant in respect of such land. Thus, clearly the petitioner was not an interested person within the meaning of Section 3(b) of the Land Acquisition Act and as such, the Collector was justified in refusing to make the reference at his instance.

15. The second ground on which the reference was refused is that the application was barred by time.

16. According to Mr. Thakur since the petitioner had not participated in the acquisition proceedings, the period of limitation in his case starts from the date when he acquired knowledge of the award though the award was announded on 22nd February, 1971, he acquired knowledge in September and applied for reference on 26-9-1972, which was well within time. Admittedly, the application was made more than six months after the date of the award but it appears that the Collector was not satisfied with the assertion of the petitioner that he had acquired knowledge about the award in September, 1972 and therefore, refused to entertain the application. Sitting in writ jurisdiction I cannot go into the disputed question of fact but even if it be assumed that the Collector was wrong in holding the application to be barred by time and should have reckoned the period of six months from the date of knowledge, as laid down in AIR 1963 SC 1604, it would not help the petitioner because the petitioner did not satisfy the very first condition envisaged in the Section i. e, of being a person interested. The application of the petitioner for making a reference in my opinion was rightly rejected by the Collector.

17. For what has been stated above this writ petition must fail and is dismissed as such but without any order as to costs.


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