Patna High Court
Md. Imram And Ors. vs Mohd. Zafar Momin And Ors. on 18 April, 1972
Equivalent citations: AIR1972PAT482, AIR 1972 PATNA 482
JUDGMENT S. Sarwar Ali, J.
1. The plaintiffs are the appellants in this second appeal. The suit was brought by the plaintiffs for recovery of Rs. 4050 along with interest of Rs. 240, being the amount of compensation awarded in respect of acquisition of certain lands by the State of Bihar under the provisions of the Land Acquisition Act, 1894, hereinafter to be called the Act."
2. The case of the plaintiffs was that a number of plots, including plots 2259 and 2260 (measuring about 4 kathas and 1 dhur), belonged to the plaintiffs. The last two plots mentioned above were acquired by the State of Bihar under the provisions of the Act. In the land acquisition proceedings no notice was given to the plaintiffs. However, coining to know; of the awards in favour of the defendants, the plaintiffs filed a petition before the Land Acquisition Officer, Darbhanga, stating that the awards had been wrongly prepared in the names of the defendants first party who had no interest in the land. It was further slated in the petition that the Land Acquisition Officer instead of referring the dispute to the District Judge directed the parties to have then- rights, agitated in the Civil Court. The plaintiffs, therefore, filed the suit for the main reliefs as stated above.
3. Written statements were filed by the defendants first party as also by the defendants second party. We are mainly concerned with the written statement of the defendants first party. These defendants claimed that they had title to the properties which were subject-matter of acquisition. They further averred that notice under Sections 9 and 12 of the Act "was duly served" and no objection was raised by the plaintiffs. It was, therefore. stated that the plaintiffs were not entitled to get any relief in the suit.
4. I have not, while giving the case of the parties, given details as to how the contesting parties claimed that they had title to the properties which were Subject-matter of acquisition. This I have done because the concurrent finding of the two courts below is that the plaintiffs and not the defendants had title to the suit properties. This finding was not challenged in this court on behalf of the respondents. As such, in this appeal we have to proceed on the basis that the plaintiffs were able to establish that prior to the acquisition by the State of Bihar they had me to plots 2259 and 2260.
5. The main contest in this appeal has centred round the point whether the plaintiffs had knowledge of the land acquisition proceedings, and, whether, in the circumstances of the case, they were entitled to get any relief in the Civil Court.
6. Both the courts below have come to the conclusion that the plaintiffs had knowledge of the land acquisition proceedings and in spite of that knowledge they had not preferred any objection to the decision of the Collector awarding the compensation money to the defendants first party. They have further come to the conclusion that in view of this finding the plaintiffs were not entitled in law to claim in the suit that they were entitled to recover the compensation awarded from the defendants first party.
7. It may be necessary to state more facts than nave come out during the course of the trial and on which either of the parties relied. According to the defendants (which case is not made out in the Written statements in clear terms), notice in respect of acquisition of plot No. 2259 was issued under Section 9 of the Act to Sahma Darzi. This notice is said to have been received by one of the plaintiffs, namely, Mohd. Saghir. Notice again in respect of this plot to Sahma Darzi was Issued under Section 12 (2) of the Act which notice was received by Mohd. Nasir, one of the plaintiffs. An application was filed before the Land Acquisition Officer in which it had been stated that notice was issued in respect of plot No. 2259 but no notice was issued in respect of plot No. 2260. It was further stated that the notice shows an area of 35 decimals (16 dhurs). The dispute in this case is whether the notices under Sections 9 and 12 of the Act were received by Mohd. Sagir and Mohd. Nasir. The courts below, as already indicated, have come to the finding that they were so received by the two persons mentioned above. Learned counsel for the appellants has challenged this finding of the courts below as being vitiated in law. This aspect I propose to consider in the next paragraph.
8. So far as Exhibit B is concerned, it is a notice issued under Section 9 of the Act addressed to Sahma Darzi and is said to have been received by Mohd. Sagir. The trial Court came to this conclusion as the Munsif got the writing alleged to be that of Mohd. Sagir read by a clerk of his court who read the signature as Saghir Ahmad. The appellate Court affirmed this conclusion without specifically indicating the reasons why it accepted it to be so- The records, however, do not indicate the signature of Saghir Ahmad at all on Exhibit B. The courts below being not conversant with Urdu Script depended on the assistance available in the courts below. Knowing the script as I do, I do not think that it is possible to read the signature as that of Saghir Ahmad. Moreover, the case of the plaintiffs is that Saghir Ahmad does not know how to write. The plaint also, in this case, does not bear any signature of Saghir Ahmad; instead there is his thumb impression. This aspect of the case also has not been considered by the courts below. It is clear, therefore, that the conclusion arrived at by the courts below is vitiated on account of non-consideration of the materials on the record and misreading of Exhibit B.
9. So far as the signature o£ Mohd. Nazir on Exhibit B (1) is concerned, the conclusion of the lower appellate court that the notice aforesaid contains the signature of Mohd. Nasir is based on two considerations, namely, that Mohd. Nasir, although one of the plaintiffs, has not denied his signature on Exhibit B (1). Secondly, a petition dated the 27th of November, 1961, filed by the plaintiffs before the Land Acquisition Officer shows that the plaintiffs were aware of the fact that the notice of acquisition had been issued in respect of plot No. 2259. This conclusion is a conclusion on a question of fact, and, whether right or wrong, cannot be upset in a second appeal, based as it is on consideration which the court was entitled to refer to for the purpose of its conclusion. One thing, however, has to be made clear, namely that there is no statement in Exhibit 3 which will indicate that the plaintiffs were aware of the proceeding prior to the issue of notice under Section 12. In other words, Exhibit 3 does not indicate, either explicitly or even by necessary implication, that the" plaintiffs had knowledge of the proceedings prior to the awards which had been given in the land acquisition case On the basis of Exhibits B (J) and 3 conclusion could be arrived at that the plain-tiffs had knowledge of the land acquisition proceeding after the issue of the notice under Section 12 of the Act. The result of the above discussion is that the finding of the courts below that the plaintiffs had received notice under Section 9 is vitiated. But the finding that they had knowledge of the issue of notice after the award under Station 12 of the Act is not vitiated by any error of law. It will also be observed that there is no material on the record on the basis of which a conclusion was possible that the plaintiffs were aware of any proceeding in respect of plot No. 2260. Exhibit B (1) mentions only one plot, namely, plot No. 2259 Exhibit 3 specifically states that there was no notice issued even in respect of plot No- 2200. The courts below have not tried to appreciate that what had to be considered was whether the plaintiffs had notice or knowledge of the proceeding in respect of both the plots or that they had knowledge regarding one plot only. As already indicated, there is no material on. the basis of which it could be held that there was knowledge of any pending proceeding regarding plot No. 2260.
10. In so far as the power of the civil court to grant relief to a plaintiff, where he claims to be entitled to compensation awarded in favour of a wrong person, is concerned, two lines of decision are to be found. One of them is represented by the case of Birendra Nath Banerjee v. Mritunjoy Roy, reported in AIR 1962 Cal 275 and the other by the case of Shri Deo Sansthan Chinchwad v. Chintarnan Dharnidhar Deo reported in AIR 1962 Bom 214. I may briefly indicate the two approaches before discussions as to what, in my view, is the correct law and to apply it to the facts of the present case. The view taken in Birendra Nath's case may be summarised in the words of Banjerjee, J. as follows:--
"In our opinion a person who hag been served with a notice under Section 9 of the Land Acquisition Act as a person believed to be interested hi the land, is not entitled to avoid the enquiry as to claims, to be made by the Collector under Section 31 of the Act. It 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 tie 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 fo certain other provisions in the Act to which we shall presently refer. Under Section 12 (2) of the Ant the Collector shall give immedile 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 for 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 ho 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 oven served with a notice under Section 9 ol 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 tho special jurisdiction only arises when a person is alerted by the appeal notices provided for in the Act, namely, notices under Sections 9 and 12 (2)."
The Bombay High Court, however, was of the view:--
"Unless, therefore, the claim of such a person, who is lawfully entitled to a share in the compensation money, is already adjudicated upon under the provisions of the Land Acquisition Act or such person having had notice of such proceedings, appears therein and fails to assert and prosecute his claim to a share in accordance with the provisions of that Act, he would be entitled to file a suit to recover his share from the person who may have received the whole or any part of the compensation amount awarded under the Act."
11. Having pointed out the divergent approaches stated above, it may be necessary now to briefly examine some of the provisions of the Act. Section 9 not only enjoins issue of public notice but also requires that notice should be issued to all persons known or believed to be interested. Section 11 contemplates enquiry and award by the Collector. In this the Collector has, amongst other things, to apportion the compensation money to the persons known or believed to be interested in the land. This has to be done after the enquiry into the objections (if any) of any person interested. As already mentioned, the award is to be given under Section 11. This has to be followed by a notice of the award to such persons interested as are not present personally or by their representatives when the award is made. Section 12 makes the award (subject to exceptions provided in the Act) final and conclusive in respect of matters stated therein. Section 18 states that any person, interested who has not accepted the award may require a reference to be made by the Collector for the determination of the court [the court here means a court as defined in Section 3 (d) of the Act. This reference is not confined only to the amount of compensation payable but may also relate to apportionment of compensation among the persons interested, limitation is provided for an application requiring the Collector to make the reference. This is six weeks from the receipt of notice from the Collector under Section 12 or within six months from the date of the Collector's award, whichever expires first. Oa a reference being made to the court, the court is to give an award, in conformity with the provisions of the Act, which award is deemed to be a decree of the court. Section 30 relates to the power of the court in respect of disputes as to apportionment. The section states that when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment, the Collector may refer such a dispute to the decision of the court. The expression may in the section has been judicially interpreted to be discretionary and not mandatory. The Collector has also to deposit the amount of the compensation money in court in the circumstances mentioned in Section 31. Third proviso to Sub-section (2) of Section 31 is of particular importance in this case and may, therefore, be quoted:
"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."
The award made by the Judge under Section 26 of the Act is subject to appeal as provided in Section 54 of the Act.
12. I have mentioned these provisions to indicate that there are elaborate provisions in the Act in respect o£ matters mentioned above, but it is no longer in dispute that the powers exercisable by the Collector under Section 18 (1) are distinct from the powers exercised under Section 30 of the Act. What is also clear is that "the Collector is not authorised to decide finally the conflicting rights of the parties interested in the amount of compensation: He is primarily concerned with the acquisition of land": It is also now beyond any controversy that the award is only conclusive between the Collector and the persons interested and not among the persons interested. The power of Collector does not extend to finally adjudicate upon the title to compensation (see AIR 1966 SC 237 (Dr. G. H. Grant v. State of Bihar)). It is true that so far as the determination of the amount of compensation or the right of persons interested in the compensation, so as to bind the Collector is concerned recourse must be had to the procedure prescribed under the Act. This, in my view, is irrespective of the fact whether a person who claims to be interested has been served with a notice under Section 9 of the Land Acquisition Act. Even if he does not have such a notice he has to proceed and obtain relief under the provisions of the Act by filing an application for reference under Section 18 of the Act. That there would be no difficulty in getting the matter referred to the court is clear from the fact that the starting point of Limitation for filing an application for reference, where the person is not present before the Collector or has not been served with the notice under Section 12, is the date of his knowledge. This has been so held hi AIR 1961 SC 1500 (Harish Chandra v. Deputy Land Acquisition Officer). The question, however which has to be considered is whether the knowledge of the land acquisition proceeding after the award, and in the absence of knowledge at previous stage precludes a claimant from agitating his right to get compensation from a person who has wrongfully received the same by instituting a civil suit. In my view, he has such a right in spite of his knowledge of the award and although no action has been taken by him for reference to the court. It will be useful in this context to bear in mind that if a dispute is raised before the Collector after the award as to who is the person entitled to compensation, the Collector has a discretion to refer such a dispute to the court. He is not bound to do so, as was observed in Grant's case, AIR 1966 SC 237--
"Exercise of the power under Section 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may, but is not bound to exercise that power."
It is obvious, therefore, that where no reference has been made by the Collector, an aggrieved person is entitled to institute a suit. I do not see any reason why such a person should be entitled to bring a suit but a person who has not tried to invoke the discretionary jurisdiction of the Collector should be barred from filing a suit for appropriate relief. This also must be so in view of the third proviso to Section 31 (2) of the Act. The language used there is clear and explicit. It states that nothing contained in Section 31 shall affect the liability of any person who has received whole or part of compensation, to pay the same to a person who is lawfully entitled to the same. The entire scheme of the Act indicates that although a forum has been provided for raising of dispute as to apportionment which could be settled and finally determined by the court, yet it could not be said that if no such dispute had been raised, the party is precluded from raising the dispute in a civil Court If, however, a dispute is raised and decided, that decision in such a dispute would, on the general principles of res judicata, be a bar to obtaining relief in a subsequent suit. In other words, it is not that the jurisdiction of Civil Court is barred so far as settlement of disputes of the parties claiming to be interested in the compensation money is concerned, but what has to be clearly understood is that if such a dispute is raised and decided by the "Court" under the Act, such a decision will operate as res judicata in a subsequent suit. This, therefore, means that the Land Acquisition Act does not contemplate the complete exclusion of Civil Courts in respect of determination of dispute between contesting claimants to the compensation money.
13. The view that I have expressed finds support from two decisions of the judicial committee. In 8 Indian Appeals page 90 there was a determination of the question regarding apportionment by the court under the provisions of Act X of 1870. The determination became final. Thereafter in a separate suit the question of apportionment of compensation awarded in a land acquisition proceeding was raised. Sections 38, 39 and 40 of that Act were considered. Section 38 of the Act laid down that when the amount of compensation had been settled, any dispute arising as to apportionment of compensation had to be referred to the decision of the court. (Here reference was mandatory). Section 39 authorised the court to decide the proportions in which the persons interested were entitled to share such amount. It also provided for appeal. Section 40 required the Collector to make payment of compensation according to the award or in case of an appeal under Section 39 according to the decision on such appeal. This section contained a proviso which is in similar terms to the third proviso of Section 31 (2), The proviso was "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 entitled thereto." It was contended on the basis of this proviso that the plaintiff was entitled to seek adjudication as to the right to compensation, in the Civil Court. The judicial committee decided that this was not the effect of the proviso. The effect of this decision, in my view, is that if a dispute has been raised and decided by the court under the machinery provided under the Land Acquisition Act the same dispute cannot be raised and decided in a separate Civil Suit. But we have to see what is the basis of this exclusion. This will be clarified by the next case that I propose to notice, namely, the case of T.B. Ramchandra Rao v. A. N.S. Ramchandra Rao, AIR 1922 PC 80. In this case also there was a determination of the rights of the parties in respect of compensation by the court under the provisions of the Land Acquisition Act. Thereafter a suit was filed in which the questions raised and decided before the court under the provisions of Land Acquisition Act were sought to be again raised. The Judicial Committee observed as follows:--
"Under the Land Acquisition Act there are two perfectly separate and distinct forms or procedure contemplated. The first is that necessary for fixing the amount of the compensation and this is described as being an award."
"When once the award as to the amount has become final, all questions as to fixing of compensation are then at an end. The duty of the Collector in case of dispute as to the relative rights of the persons, together entitled to the money, is to place the money under the control of the court, and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be. That is exactly what occurred in the present case....
Their Lordships, however, in that case held that since a clear decision upon the point in dispute in the civil suit had already been adjudicated upon by the court it could not be reopened. This their Lordships did by clarifying the position in respect of res judicata, stating that the Principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of the Civil Procedure Code. Thus their Lordships refused to grant relief to the plaintiff not because a suit was not entertainable because of existence of an exclusive machinery under the Act, but on the ground that there being a previous decision by the court in a proceeding. Under the Act, the same point could not be re-agitated on the general principles of res judicata.
14. The view I have expressed finds supports from the observation of Shah, J, (as he then was) in Grant's case, AIR 1966 SC 237, although the point under consideration in that case was not similar to one under consideration in this case. It was observed:
"... .The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under Section 18 or under Section 30 or in a separate suit....."
I am thus of the view that the decision in AIR 1962 Bom 214 lays down the correct law, the ratio whereof has already been quoted by me in paragraph 10 of this judgment, I may state that some other decisions were also cited at the Bar, but I have referred to only those which. I have found to be more directly appropriate.
15. The question involved may be examined from another point of view. The plaintiffs filed an application before the Land Acquisition Officer (exercising powers of the Collector) for a reference of the dispute to the court. There is no limitation for filing such an appeal (See Grant's case, AIR 1966 SC 237 (supra)). The Land Acquisition Officer in exercise of his discretionary power refused to make reference and directed the parties to ventilate their grievance in the civil court. In the circumstances it is plain that the civil suit filed by the plaintiffs could not be said to be barred.
16. I am thus of the view that on the facts and in the circumstances of this case the suit by the plaintiffs was maintainable and they were entitled to the reliefs claimed in the suit
17. I would like to make it clear that if my view of law is not correct, then in that case the plaintiffs would not be entitled to claim recovery of the amount of compensation awarded in respect of plot No. 2259. But, in any event, they would be entitled to recover the compensation in respect of plot No. 2260, as I have already indicated that there is no material on the record on the basis of which it could be held that the plaintiffs had notice or knowledge of any pending land acquisition proceeding regarding this plot
18. In the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and the suit of the plaintiffs is decreed. They would be entitled to a decree of Rs. 4,290 with future interest at 6% per annum. They would also be entitled to the costs.