Sharda
Devi Vs. State of Bihar & Anr [2003] Insc 7 (8 January 2003)
R.C.
Lahoti & Brijesh Kumar R.C. Lahoti, J.
The
land, which is the subject matter of controversy in these proceedings, is 36.86
acres area out of the total area of 45.92 acres of land of plot Nos. 4, 5 and
10 appertaining to khata No. 151 of Village Phulsari, District Lohardaga.
Notification u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter 'the Act'
for short) was issued on 16.02.1982 for acquiring the said land for the project
called Phulsari Sapathi Nala. Declaration u/s 6 of the Act was issued on
25.05.1982.
Objections
u/s 9 of the Act were filed by the appellant herein. The State through Circle
Officer, Kuru filed reply to the objections. On 19.02.1986 the Collector made
an award under Section 11 of the Act directing the compensation, as appointed
by him, to be paid to Smt. Sharda Devi, the appellant.
The
relevant facts, which are beyond the pale of controversy at this stage and as
would set out briefly the history of litigation, may be noticed. According to
the appellant, the said land was Gairmajrua Malik land. It was a part of zamindari
estate. Before vesting of zamindari, the land was settled by the ex-landlord in
the name of one Deo Narain Prasad by means of a registered deed of settlement
dated 24.04.1954. It was a raiyati settlement. The appellant purchased the land
from the said Deo Narain Prasad through a registered deed of sale dated
07.09.1962. The appellant has developed the land and kept it under cultivation
raising the crops. Her name was mutated in the revenue records by the Circle
Officer. A correction slip was issued to her in her name. The State realized
revenue from her from the very date of vesting, i.e. from 1955 till 1975. The
rent receipts were exhibited on record.
On
18.05.1979, the Circle Officer issued a notice u/s 3 of the Bihar Public Land
Encroachment Act, 1956 (Bihar Act XV of 1956) calling upon the appellant to
explain why she should not be treated as an encroacher on the land and why her
encroachment should not be removed. The notice was issued on the premise that
consequent upon vesting of zamindaris, the said land had stood vested in the
State of Bihar and was, therefore, 'public land'
within the meaning of clause (3) of Section 2 of the Bihar Public Land
Encroachment Act, 1956.
The
appellant filed a Writ Petition in the High Court registered as Civil Writ
Jurisdiction Case No. 366 of 1979 (R), laying challenge to the initiation of
such proceedings. The counsel for the State made appearance though a written
counter affidavit was not filed. The High Court after hearing both the parties,
upheld the plea of the appellant that the said land was Gairmajrua Malik and
not Gairmajrua Aam land and by virtue of the registered deed of transfer in favour
of Deo Narain Prasad, the predecessor-in-title of the appellant, the appellant
was justified in claiming that she was raiyat of the land in question and,
therefore, could be ejected therefrom only in accordance with the provisions of
the Chota Nagpur Tenancy Act. Inasmuch as such ejectment is permissible only on
specified grounds, none of which existed in the present case, the notice issued
to the appellant was without jurisdiction and liable to be quashed. The High
Court by order dated 23.07.1984 allowed the Writ Petition and directed the
proceedings initiated against the appellant under the provisions of the Bihar
Public Land Encroachment Act, 1956 to be quashed.
In the
year 1981, proceedings u/s 4(h) of the Bihar Land Reforms Act, 1950 proposing
to annul the settlement of land in question in favour of Deo Narain Prasad were
initiated. The proceedings were founded on the premise that the said settlement
was done with the object of defeating the provisions of the Act. An inquiry was
held. Once again the appellant filed a Writ Petition seeking quashing of these
proceedings. The petition was registered as CWJC No. 1663 of 1981 (R) and
disposed of by the High Court by order dated 25.03.1987.
During
the pendency of these proceedings, notification u/s 4(1) of the Act was
published on 16.02.1982 as already stated. It appears that the Collector was
reluctant to make an award in favour of the appellant determining the quantum
of compensation and directing its release to the appellant. On 07.01.1985 the
Collector (Addl. Collector, exercising powers of Collector) passed an order
holding that the land had vested in State and hence no award directing payment
of compensation to the appellant was called for. The appellant filed a Writ
petition in the High Court registered as CWJC No. 147 of 1985 (R). By order
dated 13.02.1985, the High Court after hearing the learned counsel for the
State, directed the Writ Petition to be allowed. A mandamus was issued to the
Collector to prepare the award in the name of the appellant. The High Court
went on to observe "if there be any dispute thereafter, the matter be
referred to the Civil Court under Sections 18 and 30 of the Land Acquisition
Act for adjudication of any claim in accordance with law." The order dated
07.01.1985 passed by Additional Collector, Lohardaga was directed to be
quashed. On 19.02.1986, the Collector (Land Acquisition) prepared an award in
the name of Smt. Sharda Devi directing the amount of compensation as determined
by him to be paid to Smt. Sharda Devi, the appellant.
On
06.06.1986, much after the expiry of six weeks the time appointed for seeking a
reference to the Civil
Court u/s 18 of the
Act, the Circle Officer, Kuru filed an application before the Collector seeking
a reference to the Civil
Court. It was stated
in the application that a dispute existed in between the Circle Officer, Kuru Anchal
(on behalf of the State of Bihar) and Smt.
Sharda Devi as to title over the acquired land, which dispute may be referred
for adjudication to the Civil
Court u/s 30 of the
Act. The dispute as to whether the title to the land vests in the appellant, so
as to entitle her to payment of compensation or whether the appellant's title
had stood already extinguished in view of the land having vested in State was
referred u/s 30 of the Act to the decisions of the Court. The reference was
numbered as L.A. Misc. Case No. 42/86 before the Civil Court. By order dated 06.09.1986 the Civil Court directed the reference to be
rejected. During the course of its order, the learned Special Subordinate
Judge, Ranchi, which is the reference court,
opined that Smt. Sharda Devi was an occupancy raiyat of the land in question
and, therefore, the award prepared in her name was just and legal.
By
order dated 25.03.1987, the High Court allowed the Writ Petition filed by the
appellant {CWJC 1663 of 1981 (R)} laying challenge to the proceedings initiated
u/s 4(h) of the Bihar Land Reforms Act. The result of this decision of the High
Court is that the effort of the State seeking annulment of settlement and cancellation
of the zamabandhi entries standing in the name of the appellant failed.
The
appellant was held to have acquired the status of raiyat in respect of the land
in question.
Against
the judgment dated 06.09.1986 passed by the learned Special Subordinate Judge,
the State Government preferred an appeal to the High Court. A learned Single
Judge of the High Court, by his judgment dated 25.04.1988 affirmed the judgment
of Special Subordinate Judge and directed the appeal to be dismissed. The State
filed a Letters Patent Appeal, which came up for hearing before a Division
Bench of the High Court. The Division Bench framed five questions of law and
directed the matter to be placed before the Chief Justice for constituting a
Full Bench to answer the questions. One of the questions framed by the Division
Bench was : "Whether the reference u/s 30 of the Land Acquisition Act,
1956 was maintainable at the instance of the State of Bihar ?" The questions of law
framed, including the question referred to herein above, were answered against
the appellant. As a consequence, the Letters Patent Appeal filed by the State
was allowed and the case was remanded to the learned Single Judge for decision
of the case in the light of the observations made by the Full Bench. Feeling
aggrieved by the order of remand, the appellant has preferred this appeal by
special leave under Article 136 of the Constitution of India.
The
sole question which arises for decision in this appeal centers around the
question referred to herein above, i.e., whether in the facts and circumstances
of the case a reference u/s 30 of the Act was competent ? In other words, the
core question is when the State proceeds to acquire land on an assumption that
it belongs to a particular person, can the award be called into question by the
State seeking a reference u/s 30 of the Act on the premise that the land did
not belong to the person from whom it was purportedly acquired and was a land
owned by the State having vested in it, consequent upon abolition of proprietory
rights, much before acquisition ? In order to appreciate the controversy, we
will briefly examine the scheme of the Land Acquisition Act, 1894, also
extracting and reproducing some of the statutory provisions as may be required.
'Person
interested' is defined by clause (b) of Sec. 3 as under :- "the expression
'person interested' includes all persons claiming an interest in compensation
to be made on account of the acquisition of land under this Act; and a person
shall be deemed to be interested in land if he is interested in an easement
affecting the land." Government is not a person interested within the
meaning of the above definition (See Collector of Bombay v. Nusurwanji State of
Bihar (1965) 3 SCR 576 this Court observed (vide page 584 G): "A dispute
then arose between the State Government and Dr. Grant "as to the persons
whom" compensation was payable. The State had no right to the compensation
payable for the land under a title existing before the date of the award of the
Collector, and no application for reference could be made by the State, as a
person interested within the meaning of Section 18(1)".
Whenever
it appears to the appropriate Government that land in any locality is needed or
is likely to be needed for any public purpose etc. a notification to that
effect shall be published u/s 4 of the Act.
Any
person interested in any land which has been notified u/s 4(1) may prefer
objections u/s 5A. After the objections have been determined, a declaration u/s
6 shall be made which shall be published in the Official Gazette and in such
other manner as prescribed by sub- section (2) of Section 6. The appropriate
Government shall thereafter direct the Collector to make order for the
acquisition of the land. The land shall be demarcated. 'Persons interested'
shall be noticed u/s 9 of the Government's intention to take possession of the
land and inviting claims to compensation for all interests in such land.
Enquiry into the objections preferred by persons interested shall be made under
Section 11 by the Collector followed by an award. The award is a determination
by Collector of disputes based on objections relating to:-
(1) the
true area of the land acquired,
(2) the
compensation which, in his opinion, should be allowed for the land by reference
to the value of the land on the date of publication of the notification u/s
4(1), and
(3) the
respective interests of the persons claiming the compensation and directing the
apportionment of the compensation among all the persons known or believed to be
interested in the land, of whom, or of whose claims, he has information,
whether or not they have respectively appeared before him.
Section
12 attaches finality to the award making it a conclusive evidence as between
the Collector and the persons interested whether they have respectively
appeared before the Collector or not on three points:
(i) the
true area of the land,
(ii) the
value of the land, and
(iii) the
apportionment of the compensation amount among the persons interested.
The
Collector may, after making the award u/s 11, take possession of the land. On
such taking possession, the acquired land shall vest absolutely in the
Government, free from all encumbrances.
Part
III of the Act deals with reference to Court and procedure thereupon. Disputes
as to apportionment of compensation are dealt with in Part IV. Part III
consists of Sections 18 to 28. Section 18 provides as under :-
18.
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
objection be 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.
Section
19 prescribes the contents of the statement to be made by the Collector to the
Court while making reference, which has to be in writing. Under Section 20, the
following persons shall be noticed by the Court :-
(a) the
applicant;
(b) all
persons interested in the objection, except such (if any) of them as have
consented without protest to receive payment of the compensation awarded; and
(c) if
the objection is in regard to the area of the land or to the amount of
compensation, the Collector.
The
scheme of Section 20 also suggests that Collector (or State) does not fall
within the meaning of 'persons interested'; Collector becomes a necessary party
to reference and is required to be noticed by the Court when the reference
relates to objection in regard to area of land or to the quantum of
compensation.
Section
21 restricts the scope of the inquiry in proceedings initiated on reference by
Collector to a consideration of the interests of the persons affected by the
objections. Section 26 prescribes the form of award to be made by the Reference Court.
Under
Part IV, Section 29 contemplates the compensation being apportioned between
several persons interested in accordance with the agreement arrived at between
them. The particulars of apportionment as specified in the award shall be
conclusive as between the persons who have expressed their agreement in the
apportionment of the compensation. In case of dispute, Section 30 provides as under
:- S.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.
Under
Section 31, the Collector is obliged to tender payment of the compensation to
the persons interested in accordance with the award. The Collector is obliged
to withhold distribution of the awarded amount to the awardee or amongst the
awardees and deposit the amount of compensation in the reference court in three
situations:-
(i) if
awardees do not consent to receive the amount of compensation,
(ii) if
there be no person competent to alienate the lands, or
(iii) if
there be any dispute as to the title to receive the compensation or as to the
apportionment of it.
The
two provisions contemplating power of the Collector to make reference as
contained in Section 18 and Section 30 of the Act need a comparative study.
Under Section 18 the subject-matter of reference can be a dispute as to any one
or more of the following:
(i) as
to the measurement of the land,
(ii) as
to the amount or the quantum of the compensation,
(iii) as
to the persons to whom the compensation is payable,
(iv) as
to the apportionment of the compensation among the persons interested. Under
Section 30 the subject matter of dispute can be:
(i) the
apportionment of the amount of compensation or any part thereof,
(ii) the
persons to whom the amount of compensation or any part thereof is payable.
Though
the expression employed in Section 18 is 'the amount of compensation' while the
expression employed in Section 30 is 'the amount of compensation or any part
thereof', this distinction in legislative drafting is immaterial and
insignificant and a dispute as to entitlement or apportionment of part of the
compensation would also be covered by Section 18 of the Act on the principle
that the whole includes a part too. Thus, at the first blush, it seems that
Section 30 overlaps Section 18 in part; but as will be seen shortly
hereinafter, it is not so.
Bench
decision of this Court wherein the scheme of the Act by reference to the power
vesting in the Collector to make a reference came up for the consideration of
the Court. The three-Judge Bench by a majority of 2:1 laid down the following principles
:
(i)
There are two provisions in the Act under which the Collector can make a
reference to the Court, namely, Section 18 and Section 30.
The
powers under the two sections are distinct and may be invoked in contingencies
which do not overlap. A person shown in that part of the award which relates to
apportionment of compensation who is present either personally or through a
representative or on whom notice is issued under Section 12(2), must, if he
does not accept the award, apply to the Collector to refer the matter to the
Court under Section 18 within the time prescribed thereunder. But a person who
has not appeared in the acquisition proceedings before the Collector may, if he
is not served with notice of filing, raise a dispute as to apportionment or as
to the persons to whom it is payable and apply to the Court for a reference
under Section 30, for determination of his right to compensation which may have
existed before the award, or which may have devolved upon him since the award.
For a reference under Section 30, no period of limitation is prescribed.
(ii)
It is not predicated of the exercise of the power to make a reference under
Section 30 that the Collector has not apportioned the compensation money by his
award.
(iii)
The award made by the Collector under Section 11 is not the source of the right
to compensation. An award is strictly speaking only an offer made by the
Government to the person interested in the land notified for acquisition; the
person interested is not bound to accept it and the Government can also
withdraw the acquisition u/s
48. It
is only when possession of the land has been taken by the Government u/s 16
that the right of the owner of the land is extinguished. Therefore the
appellant's contention that title to compensation is derived solely from and on
the date of the award could not be accepted.
(iv)
The liability of the Government u/s 31 to pay compensation to the person
entitled thereto under the award does not imply that only the persons to whom
compensation is directed to be paid under the award may raise a dispute u/s 30.
The scheme of apportionment by the Collector under Section 11 is conclusive
only between the Collector and the persons interested and not among the persons
interested. Payment of compensation u/s 31 to the persons declared in the award
to be entitled thereto discharges the State of its liability to pay
compensation leaving it open to the claimant to compensation to agitate his
right in a reference u/s 30 or by a separate suit.
(v)
Under the Bihar Land Reforms Act the title of the appellant to the land noticed
for acquisition became vested in the State and therefore the right to
compensation for the land acquired devolved upon the State. A dispute then
arose between the State Government and the appellant "as to the persons to
whom" compensation was payable.
The
State had no right to the compensation payable for the land under a title
existing before the date of the award of the Collector and no application could
be made by it as a person interested within the meaning of Section 18. But a
dispute between the appellant and the State as to their conflicting claims to
the compensation money was clearly a dispute which could be referred u/s 30 of
the Act to the Court. There is nothing in Section 30 which excludes a reference
to the Court of a dispute raised by a person on whom the title of the owner of
the land has since the award, devolved (emphasis supplied).
Keeping
in view the principles laid down by this Court in Dr. G.H. Grant's case (supra)
and analyzing in-depth the provisions of the Act the difference between
reference under Section 18 and the one under Section 30 can be summarized and
set out as under:- By reference to locus Under Section 18(1) a reference can be
made by Collector only upon an application in writing having been made by
(i) any
person interested
(ii) who
has not accepted the award
(iii) making
application in writing, to the Collector, requiring a reference by the
Collector to the Court
(iv) for
determination of any one of the four disputes (specified in the provision), and
(v) stating
the grounds on which objection to the award is taken.
For
reference under Section 30 no application in writing is required. The prayer
may be made orally or in writing or the reference may be made suo motu by the
Collector without any one having invited the attention of the Collector for
making the reference.
By
reference to the disputes referable Under Section 18(1) there are four types of
disputes which can be referred to Civil Court for determination. They are the disputes:
(i) as
to the measurement of the land,
(ii) as
to the amount of the compensation,
(iii) as
to the persons to whom the compensation is payable, or
(d) as
to the apportionment of the compensation among the persons interested. Under
Section 30 the only disputes which are referable are :
(i) any
dispute as to the apportionment of the amount of compensation or any part
thereof, or
(ii) a
dispute as to the persons to whom the amount of compensation or any part
thereof is payable.
A
dispute as to the measurement of the land or as to the quantum of compensation
or a dispute of a nature not falling within Section 30, can neither be referred
by the Collector under Section 30 of the Act nor would the Civil Court acquire
jurisdiction to enter into and determine the same.
By
reference to nature of power Under Section 18 of the Act the Collector does not
have power to withhold the reference. Once a written application has been made
satisfying the requirements of Section 18, the Collector shall make a
reference. The Collector has no discretion in the matter; whether the dispute
has any merit or not is to be left for the determination of the Court. Under
Section 30 the Collector may refer such dispute to the decision of the Court.
The Collector has discretion in the matter.
Looking
to the nature of the dispute raised, the person who is raising the dispute, the
delay in inviting the attention of the Court, and so on are such illustrative
factors which may enter into the consideration by the Collector while
exercising the discretion. If the Collector makes the reference it may be
decided by the Court subject to its forming an opinion that the dispute was
capable of reference and determination under Section 30 of the Act. In case the
Collector refuses to make a reference under Section 30 of the Act, the person
adversely affected by withholding of the reference or refusal to make the
reference shall be at liberty to pursue such other remedy as may be available
to him under the law such as filing a writ petition or a civil suit.
By
reference to limitation Under Section 18 the written application requiring the
matter to be referred by the Collector for the determination of the Court shall
be filed within six weeks from the date of the Collector's award if the person
making it was present or represented before the Collector at the time when he
made his award or within six weeks 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.
There
is no such limitation prescribed under Section 30 of the Act.
The
Collector may at any time, not bound by the period of limitation, exercise his
power to make the reference. The expression 'the person present or represented'
before the Collector at the time when he made his award would include within
its meaning a person who shall be deemed to be present or represented before
the Collector at the time when the award is made. No one can extend the period
of limitation by taking advantage of his own wrong. Though no limitation is
provided for making a reference under Section 30 of the Act, needless to say,
where no period of limitation for exercise of any statutory power is prescribed
the power can nevertheless be exercised only within a reasonable period; what
is a reasonable period in a given case shall depend on the facts and
circumstances of each case.
The
scheme of the Act reveals that the remedy of reference u/s 18 is intended to be
available only to a 'person interested'. A person present either personally or
through representative or on whom a notice is served u/s 12(2) is obliged,
subject to his specifying the test as to locus, to apply to the Collector
within the time prescribed u/s 18(2) to make a reference to the Court. The
basis of title on which the reference would be sought for u/s 18 would
obviously be a pre- existing title by reference to the date of the award. So is
Section 29, which speaks of 'persons interested'. Finality to the award spoken
of by Section 12(1) of the Act is between the Collector on one hand and the
'persons interested' on the other hand and attaches to the issues relating to
(i) the
true area, i.e. measurement of the land,
(ii) the
value of the land, i.e. the quantum of compensation, and
(iii) apportionment
of the compensation among the 'persons interested'.
The
'persons interested' would be bound by the award without regard to the fact
whether they have respectively appeared before the Collector or not.
The
finality to the award spoken of by Section 29 is as between the 'persons
interested' inter se and is confined to the issue as to the correctness of the
apportionment. Section 30 is not confined in its operation only to 'persons
interested'. It would, therefore, be available for being invoked by the
'persons interested' if they were neither present nor represented in
proceedings before the Collector, nor were served with notice u/s 12(2) of the
Act or when they claim on the basis of a title coming into existence post
award. The definition of 'person interested' speaks of 'an interest in
compensation to be made'. An interest coming into existence post award gives
rise to a claim in compensation which has already been determined. Such a
person can also have recourse to Section 30. In any case, the dispute for which
Section 30 can be invoked shall remain confined only
(i) as
to the apportionment of the amount of compensation or any part thereof, or
(ii) as
to the persons to whom the amount of compensation (already determined) or any
part thereof is payable.
The
State claiming on the basis of a pre-existing right would not be a 'person
interested', as already pointed out hereinabove and on account of its right being
pre-existing, the State, in such a case, would not be entitled to invoke either
Section 18 or Section 30 seeking determination of its alleged pre-existing
right. A right accrued or devolved post award may be determined in a reference
u/s 30 depending on Collector's discretion to show indulgence, without any bar
as to limitation. Alternatively, such a right may be left open by the Collector
to be adjudicated upon in any independent legal proceedings. This view is just,
sound and logical as a title post award could not have been canvassed upto the
date of the award and should also not be left without remedy by denying access
to Section 30.
Viewed
from this angle, Section 18 and 30 would not overlap and would have fields to
operate independent of each other.
We
have entered into examining the scheme of the Act and exploring the difference
between reference under Section 18 and the one under Section 30 of the Act as
it was necessary for finding out answer to the core question staring before us.
The power to acquire by State the land owned by its subjects hails from the
right of eminent domain vesting in the State which is essentially an attribute
of sovereign power of the State. So long as the public purpose subsists the
exercise of the power by the State to acquire the land of its subjects without
regard to the wishes or willingness of the owner or person interested in the
land cannot be questioned. (See Scindia Kishan Singh and Ors. 1995 Supp (2) SCC
475, para 7). The State does not acquire its own land for it is futile to
exercise the power of eminent domain for acquiring rights in the land, which
already vests in the State. It would be absurdity to comprehend the provisions
of Land Acquisition Act being applicable to such land wherein the ownership or
the entirety of rights already vests in the State. In other words, the land
owned by the State on which there are no private rights or encumbrances is
beyond the purview of the provisions of the Land Acquisition Act. The position
of law is so clear as does not stand in need of any authority to support. Still
a few decided cases in point may be referred since available.
In
Collector of Bombay v. Nusurwanji Rattanji Mistri & Others (supra) this
Court held that when the Government acquires lands under the provisions of the
Land Acquisition Act, it must be for a public purpose, and with a view to put
them to that purpose, the Government acquires the sum total of all private
interests subsisting in them. If the Government has itself an interest in the
land, it has only to acquire the other interests outstanding thereof so that it
might be in a position to pass it on absolutely for public user. An interesting
argument was advanced before the Supreme Court. It was submitted that the right
of the Government to levy assessment on the lands is an 'encumbrance' and that
encumbrance is capable of acquisition. The Court held that the word
'encumbrance' as occurring in Section 16 can only mean interests in respect of
which a compensation was made under Section 11 or could have been claimed. It
cannot include the right of the Government to levy assessment on the lands. The
Act does not contemplate the interest of the Government in any land being
valued or compensation being awarded therefor.
35 it
was held that where the Government acquires any property consisting of land and
buildings and where the land was subject- matter of the Government grant,
subject to the power of resumption by Government at any time on giving one
month's notice, then the compensation was payable only in respect of such
buildings as may have been authorized to be erected and not in respect of the
land.
In 'In
the matter of the Land Acquisition Act : Govt. of J held that the Government
are not debarred from acquiring and paying for the only outstanding interests
merely because the Act, which primarily contemplates all interests as held
outside Government, directs that the entire compensation based upon the market
value of the whole land must be distributed among the claimants. The Government
was held liable to acquire and pay only for the super-structure as it was
already the owner of the land.
Cas
341 (Mad), Wallis, J. observed that the Act does not contemplate or provide for
the acquisition of any interest which already belongs to Government in land which
is being acquired under the Act but only for the acquisition of such interests
in the land as do not already belong to the Government.
In
Collector of Bombay v. Nusurwanji Rattanji Mistri & Others (supra), the
decision in Esufali Salebhai's case and Aiyavu Pillay's case were cited with
approval. Expressing its entire agreement with the said views the Court held
that when Government possesses an interest in land which is the subject of
acquisition under the Act, that interest is itself outside such acquisition
because there can be no question of Government acquiring what is its own. An
investigation into the nature and value of that interest is necessary for
determining the compensation payable for the interest outstanding in the
claimants but that would not make it the subject of acquisition. In land
acquisition proceedings there is no value of the right of the Government to
levy assessment on the lands and there is no award of compensation therefor. It
was, therefore, held by a Division Bench of of State for India in Council AIR 1921 Oudh 31 that the question of title arising between the
Government and another claimant cannot be settled by the judge in a reference
under Section 18 of the Act.
When
the Government itself claims to be owner of the land there can be no question
of its acquisition and the provisions of the Land Acquisition Act cannot be
applicable. In our opinion the statement of law so made by the learned judicial
commissioners is correct.
The
Collector acts as a representative of the State whilst holding proceedings
under the Land Acquisition Act. In fact, he conducts the proceedings on behalf
of the State. The award of the Collector is not the source of the right to
compensation; it is the pre- existing right which is recognized by the Collector
and guided by the findings arrived at in determining the objections, if any,
the Collector quantifies the amount of compensation to be placed as an offer of
the appropriate Government to the owner recognized by the State. The offeree
may accept or decline the offer. It he accepts the offer and the Government
takes possession over the land, the title of the offeree is extinguished and
vests absolutely in the Government free from all encumbrances. The power to
make an award under Section 11 and to make a reference under Sections 18 or 30
of the Act is a statutory power. The sweep of jurisdiction of Court to
determine the disputes is also statutory and is controlled by the bounds
created by Section 17 or 30 whereunder the reference has been made to the Court.
The power has to be exercised to the extent to which it has been conferred by
the Statute and on availability of pre-existing conditions on the availability
of which and which alone the power can be exercised.
Award
made by the Collector is final and conclusive as between the Collector and the
'persons interested', whether they have appeared before the Collector or not,
on two issues :
(i) as
to true area, i.e. measurement of land acquired,
(ii)
as to value of the land, i.e. the amount of compensation, and
(iii) as
to the apportionment of the compensation among the 'persons interested' again,
between the Collector and the 'persons interested' and not as amongst the
'persons interested' inter se. In the event of a reference having been sought
for u/s 18, the Collector's award on these issues; if varied by Civil Court, shall stand superseded to that
extent.
The
scheme of the Act does not attach a similar finality to the award of the
Collector on the issue as to the person to whom compensation is payable; in
spite of the award by Collector and even on failure to seek reference, such
issue has been left available to be adjudicated upon by any competent forum.
Wullud
Meer Sudroodeen Khan Bahadoor, 6 Moo Ind App 134 their Lordships of the Privy
Council have held that wherever jurisdiction is given by a Statute and such
jurisdiction is only given upon certain specified terms contained therein it is
a universal principle that those terms should be complied with, in order to
create and raise the jurisdiction, and if they are not complied with the
jurisdiction does not arise. The Privy Council decision above-said was followed
and the statement of law made therein approved by this Court in Kothamasu AIR
1965 SC 304. This Court held that under the Land Acquisition Act the matter
goes to the Court only upon a reference made by the Collector and there is no
doubt that the jurisdiction of the Court arises solely on the basis of a
reference made to it. The Court can adjudicate upon the matter referred to it
but the Court is certainly not invested with the jurisdiction to consider a
matter not directly connected with it and this is not a matter of mere
technicality. A case of lack of inherent jurisdiction will not be cured by mere
failure to object to the proceedings before the Court on the ground of an
absence of reference on matters not referred. There can be no waiver or
acquiescence.
Indeed,
when there is an absence of inherent jurisdiction, the defect cannot be waived
nor can be cured by acquiescence, To sum up the State is not a 'person
interested' as defined in Section 3(2) of the Act. It is not a party to the
proceedings before the Collector in the sense, which the expression 'parties to
the litigation' carries. The Collector holds the proceedings and makes an award
as a representative of the State Government. Land or an interest in land
pre-owned by State cannot be subject matter of acquisition by State the
question of deciding the ownership of State or holding of any interest by the
State Government in proceedings before the Collector cannot arise in
proceedings before the Collector (as defined in Section 3(c) of the Act). If it
was a government land there was no question of initiating the proceedings for
acquisition at all. The Government would not acquire the land, which already
vests in it. A dispute as to pre-existing right or interest of the State
Government in the property sought to be acquired is not a dispute capable of
being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of
the Act. The reference made by the Collector to the Court was wholly without
jurisdiction and the Civil
Court ought to have
refused to entertain the reference and ought to have rejected the same. All the
proceedings under Section 30 of the Act beginning from the reference and
adjudication thereon by the Civil Court
suffer from lack of inherent jurisdiction and are therefore a nullity liable to
be declared so.
However,
we would like to clarify our decision by sounding two notes of caution.
Firstly, the quashing of the proceedings under Section 30 of the Land
Acquisition Act would not debar the State from pursuing such other legal remedy
before such other forum as may be available to the State Government and on the
merits and the maintainability thereof we express no opinion herein. Secondly,
the situation in law would have been entirely different if the title of the
appellant would have come to an end by any event happening or change taking
place after the making of the award by the Collector as 576. The title of Dr. Ghosh
had come to an end by change of law referable to a date subsequent to the
making of the award. In this context it was held "there is no reason why
the right to claim a reference of a dispute about the person entitled to
compensation may not be exercised by the person on whom the title has devolved
since the date of the award" and "there is nothing in Section 30
which excludes a reference to the Court of a dispute raised by a person on whom
the title of the owner of land has, since the award, devolved".
For
the foregoing reasons, the appeal is allowed, the judgment of the Division
Bench is set aside and that of the learned Single Judge restored with costs
throughout.
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