SPECIAL LAND ACQUISITION OFFICER Vs. BHOGILAL LALCHAND GUJARATI

JUDGEMENT

(1.) THIS is an appeal from a judgment of the learned Joint District Judge, Nasik, dated August 22, 1969, in a Reference under Section 18 of the Land Acquisition Act. The land under acquisition comprises of the whole of S. No. 65 of Khayade village admeasuring 16 acres and 53 gunthas, and Potkharaba 1 acre and 34 gunthas, aggregating to 18 acres and 27 gunthas. According to the revenue records, the western part of that survey number was sub -divided into Hissa No. 1 admeasuring 9 acres and 2 gunthas, which together with Potkharaba 1 acre 7 gunthas, totalled to 10 acres and 9 gunthas; and the eastern part thereof was sub -divided into Hissa No. 2 admeasuring 7 acres and 31 gunthas, and Potkharaba 27 gunthas, admeasured in all 8 acres and 18 gunthas. It was the case of respondent No. 1 in this appeal that the whole of the land comprised in Hissa No. 1 of the said S. No, 65 belonged to him and was in his possession till the date of acquisition and he was entitled to compensation in respect thereof. In the course of the land acquisition proceedings, however, the Special Land Acquisition Officer came to the conclusion that respondent No. 1 (Bhogilal) was found to be in possession only of 5 acres and 37 gunthas of the land in Hissa No. 1 of S. No. 65 which, together with Potkharaba of 1 guntha, aggregated only to 5 acres and 88 gunthas, and that all the rest of the land in Hissa No. 1, as well as the entire land comprised in Hissa No. 2 of S. No. 65, was in possession of respondent No. 2 (Nathu Lala) and compensation was awarded by him on that footing. The amount of compensation which was determined by the award to be payable to Nathu Lala was paid to him by the Government. At the instance of Bhogilal, a Reference was made to the District Court of Nasik under Section 18 of the Land Acquisition Act in which the said Bhogilal claimed compensation in respect of the remaining portion of Hissa No, 1 of S. No. 65 consisting of 3 acres and 5 gunthas of land, which together with Potkharaba 1 acre and 6 gunthas, aggregated to 4 acres and 11 gunthas. The said Bhogilal also claimed a higher amount by way of market value of the said land, but that claim was given up by him at the hearing of the Reference. The dispute which was raised in the said Reference was, therefore, not a dispute in regard to the apportionment of compensation in respect of the same piece of land, but was a dispute in regard to the title to the said 4 acres and 11 gunthas which were part of Hissa No. 1 of S. No. 65. The lower Court framed two issues : (1) Whether Bhogilal had proved his title to the said 4 acres 11 gunthas of land; and (2) whether Nathu Lala had proved that he had acquired title to the said 4 acres 11 gunthas of land by adverse possession. The learned Judge in the lower Court came to the conclusion that Bhogilal had proved his title to the said 4 acres 11 gunthas being part of Hissa No. 1 of S. No. 65, and he also came to the conclusion that Nathu Lala had failed to prove that he had acquired title by adverse possession to the same. The lower Court, therefore, held Bhogilal entitled to compensation for the disputed land admeasuring 4 acres 11 gunthas, the amount of such compensation being Rs. 2,388,80, and took the view that the mere fact that compensation in respect of the said 4 acres 11 gunthas had already been paid to the said Nathu Lala by the Government did not absolve the Special Land Acquisition Officer or the Government from paying the amount of that compensation to Bhogilal who was entitled to the same. The learned Judge, therefore, ordered that both the Special Land Acquisition Officer as well as the said Nathu Lala 'do pay to the claimant Bhogilal Lalchand Rs. 2,388.80,' and the costs of the proceedings before him, on or before the date fixed by him. The State has come in appeal from that order on the ground that the lower Court erred in directing that the Special Land Acquisition Officer should pay the amount in question to the claimant, and has submitted that such an order was contrary to law, and the State could not be called upon to pay the amount twice over, if it had already paid the same to Nathu Lala. It was sought to be contended on behalf of the State that the remedy, if any, of Bhogilal, was against Nathu Lala only, and not against the State or the Special Land Acquisition Officer acting on its behalf.

(2.) IT will be convenient, at this stage, to deal with this question first on a plain reading of the provisions of the Land Acquisition Act, apart from authority, and then turn to the authorities on the point that were cited before me. Section 11 of the Act lays down what the contents of an award made by the Collector or the Special Land Acquisition Officer, as the case may be, should be. It enacts that the award should contain, (1) the true area of the land, (2) the compensation which should be allowed for the land, and (3) apportionment of that compensation amongst the persons interested in that land. Section 18 thereof provides that, if any person interested in the land so desires, he may by written application call upon the Collector (which term as defined in Section 3(c) includes the Special Land Acquisition Officer) requiring him to make a Reference to the Court, whether his objection be to the measurement of the land, the amount of compensation, the 'person to whom it is dayable,' or the apportionment of compensation among the persons interested. Section 30 of the Act also provides for a Reference being made thereunder, if the dispute is confined to apportionment of the compensation awarded by the Collector, but it may, at this stage, be clarified that the reference in the present case has been made under Section 18 of the Act in so far as, on a proper view of the matter, the dispute is not in regard to the apportionment of compensation in respect of the same land, or part of the land, but is a dispute in regard to 'the person to whom it is payable' within the terms of Section 18(1). In short, the dispute which was raised in the Reference before the lower Court was a dispute in regard to the title to the said 4 acres and 11 gunthas of land which was part of Hissa No. 1 of the said S. No. 65. Section 23 of the Act lays down that, in determining the amount of compensation 'to be awarded' for the land in question, the Court must take into consideration certain matters specified in that section, the main one being the market value of the land at the relevant date. It may well be noted that Section 23 as well as Section 26, to which I will presently refer, occur in the Part that deals with proceedings by way of Reference to Court, and when Section 23 uses the expression 'to be awarded' it is laying down, in effect, the form which the order of the Court should take on a Reference made to it under the Act. Section 26 makes that position amply clear when in the first sub -section thereof it lays down that 'every award' under the said Part must be in writing signed by the Judge, and must specify the amount awarded by way of market value of the land, and also the amounts, (if any), respectively 'awarded' under the other heads in Section 23, together with the grounds of 'awarding' the same. It, therefore, leaves no room for doubt whatsoever that the order of the Court has to be in the form of an award and not in the form of an executable decree or order for payment, and it is for that precise reason that it became necessary for the Legislature to enact Sub -section (2) of Section 26 which is in the following terms : (2) Every such award shall be deemed to be a. decree and the statement of the grounds of every such award a judgment within the meaning of section 2, Clause (2), and section 3, Clause (9), respectively, of the Code of Civil Procedure, 1908. The deeming provision contained in Section 26(2) would have been wholly unnecessary if the order which the Court was to pass on a Reference made to it was to be in the form of an executable order or an order for payment. On a plain reading of the relevant sections of the Act, I have, therefore, no hesitation in coming to the conclusion that the order passed by the learned Judge in the lower Court that the Special Land Acquisition Officer as well as the said Nathu Lala 'do pay' to Bhogilal the said sum of Rs. 2,388.80, together with the costs of the proceedings before him is wrong as a matter of form, and it is because the learned Judge has made his order in an erroneous form that all the difficulties in this case have arisen. His order should merely have been in the form of an award as laid down by Section 26(i), without containing an order against anybody to pay the amount in question. Section 26(2) would then have come into play and given to that order the force of a decree against whoever is liable under the relevant statutory provisions.

(3.) THE learned Government Pleader, however, sought to rely on the third proviso to Sub -section (2) of Section 81 as showing that the only remedy of Bhogilal was against Nathu Lala.