POORANCHAND SHARMA Vs. SAILA BALA DASSI

JUDGEMENT

(1.) THE suit from which this petition for revision arises was filed by non -applicant. No. 1 Smt. Saila Bala Dassi as plaintiff against the applicant Pooranchand Sharma as defendant No. 1 and Shri F. Pinto Rosaria (non -applicant No. 2 as defendant No. 2. Defendant No. 1 raised certain preliminary objections before the Court: (i) that the suit was not maintainable, as the proper procedure under section 223 (4) of the Madhya Pradesh Land Revenue Code, 1954 (hereinafter called the Land Revenue Code) was not followed; (ii) that it was barred by limitation; and (Hi) that the State Government was a necessary party. All these objections have been rejected by the trial court and therefore this petition for revision has been filed by defendant No. 1. The plaintiff (non -applicant No. 1) held certain fields in occupancy rights in village Murwara, Tahsil and District Jabalpur. The applicant was granted a lease to extract limestone from the said fields. The Sub -Divisional Officer, Katni, by his order, dated 19 -1 -1957, assessed compensation for disturbance of the surface at Rs. 2,280. This award was not accepted by the plaintiff, and she filed the present suit for fixing the amount of compensation at Rs. 20,000. Defendant No. 2 does not dispute the claim of the plaintiff.

(2.) THE first question which arises for determination is whether the procedure laid down under section 22S (4) of the Land Revenue Code was not followed by the plaintiff in filing her suit. Shri R.S. Dabir for the applicant contends that it was necessary for the plaintiff to request the Collector to make a reference under section 18 of the Land Acquisition Act and a suit did not lie directly in the civil Court. Sub -section (4) of section 228 of the Land Revenue Code reads as follows: If, in the exercise of the right herein referred to over any land, the rights of any persona are infringed by the occupation or disturbance of the surface of such land, the Government or its assignee shall pay to such persons compensation for such infringement and the amount of such compensation shall be calculated by the Deputy Commissioner, or, if his award is not accepted, by the civil Court, as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894. Section 18 of the Land Acquisition Act provides that any person who has not accepted the award of the Collector has to make a written application to the Collector to make a reference to the Court for determination of the matter; and it is only after such a reference that the civil Court is seized of the jurisdiction to decide the amount of compensation. I do not agree that section 18 of the Land Acquisition Act has any application to the award given by the Deputy Commissioner under section 228 (4) of the Land Revenue Code. In my opinion, the words "as nearly as may be, in accordance with the provisions of the Land Acquisition Act, 1894" qualify the verb "shall be calculated" and they apply both to the Deputy Commissioner as well as the civil Court who have to calculate the amount of compensation. All that is laid down in this sub section is that the calculation of the amount of compensation shall be made in accordance with the provisions in the Land Acquisition Act, 1894 and not that the whole procedure indicated in that Act for assessing compensation should be followed. The Land Acquisition Act has to be looked into only for fixing the quantum of compensation.

(3.) THE second point which has been raised on behalf of the applicant is that the suit is barred by limitation under Article 14 of the Limitation Act. The case was decided by the Sub -Divisional Officer on 29 -1 -1957 and the appeal filed before the Additional Deputy Commissioner was decided on 30 -3 -1959, that is, more than one year after the decision in appeal by the Collector. Article 14 applies to a case where the plaintiff seeks to set aside any act or order of an Officer of Government in his official capacity. It is contended on behalf of non -applicant No. 1 that the application of this Article is restricted only to those cases where it is incumbent on the plaintiff to have the order set aside. Reliance is placed on Bala v. Girdhar : AIR 1927 Nag. 159 in which the plaintiff had challenged the right of the defendant to hold certain lands as permanent tenants and the defendant had pleaded that the order recording him as such attracted the application of Article 14 of the Limitation Act. This contention was negatived as follows: I do not, however, think that Article 11 applies to the case. An incidental effect of the plaintiffs obtaining the declaration they want may be that Mr. Vaidya's order referred to above is nullified but before Article 14 referred to can apply, the order referred must needs be one which must under law be set aside. The implications of Article 14 of the Limitation Act were examined in Shivaji Yesji Chawan v. The Collector of Ratnagiri, ILR 11 Bom. 429. Two propositions have been laid down in that case as follows: Articles 12 and 14 of Schedule II of the Limitation Act (XV of 1877) refer to orders and proceedings of a public functionary, to which by law is given a particular effect in favour of one person or against another, subject, in the regular course to a further judicial proceeding having for its object to quash them or set them aside. When an order does not fall within the authority of an official who makes it, it is legally nullity, and, therefore, need not be set aside. In that case, the Collector had disposed of certain lands in favour of the defendant and the plaintiff claimed that they belonged to him. It was held that the Collector had no power to dispose of the lands to the prejudice of the existing rights of any one. Section 7 of Regulation XVII of 1827, which authorized the Collector to dispose of uncultivated land, did not give him any right to dispose of the particular land which was in suit in that case. Accordingly, it was held that Article 14 did not apply. In Parbati Nath Dutt v. Rajmohan Datt, ILR 29 Cal. 367 an objection was taken before the Collector in proceedings under the Estates Partition Act that a particular piece of land did not belong to the estate. That objection was overruled by the Collector and a suit was filed more than a year after the passing of the order. It was held that Article 14 applied to the case. The reason given was that "The Revenue authorities bad jurisdiction to enquire into his plea under section 116 of the Act: hence the plaintiff was bound by that order." It will thus be seen that the consideration on which this case was decided was that the order should be within the jurisdiction of the authority passing it.