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P L D 1967 Supreme Court 191

 

Present : S. A. Rahman, Fazle‑Akbar and

 

Hamoodur Rahman, JJ ‘

 

GHULAM MUHAMMAD‑Appellant

 

versus

 

GOVERNMENT OF WEST PAKISTAN‑

Respondent: ,

 

Civil Appeal No. 66 of 1965, decided on 10th February 1967.

 

(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 1st October 1963, in Writ Petition No. 528/63).

 

G. Safdar Shah, Additional Advocate‑General, West Pakistan (Rustam S. Sidhwa Advocate Supreme Court with him) instructed by Maqbul Ahmad Rana Attorney (absent) in place of Ijaz Ali Attorney on record for Respondent.

Date of hearing: 20th December 1966.

 

JUDGMENT

HAMOODUR RAHMAN, J.‑This appeal, by special leave, arises out of a land acquisition proceeding in respect of 8 kanals, 3 marlas and’ 128 sq. ft. of land comprised in Khasra Nos. 6313 and 6314 situated on the crossing of Bahawalpur and Fateh Sher Roads, Mozang, Lahore. The acquisition was made by the Government of West Pakistan by .a notification issued under section 6 of the Land Acquisition Act, 1894, on the 12th of November; 1956, for the construction of Government quarters at Bahawalpur Road.

 

Notices under sections 9 and 10 of the Act were, it is said, issued to all the owners and persons interested to appear before the Land Acquisition Collector on the 29th of December, 1956. At this hearing before the Land Acquisition Collector it was found that the Khasra Nos. 6313 and 6314, though entered in the revenue records in the names of Jaswant Rai and others as evacuee vendees, were also shown as being in the ‘adverse possession of the appellant as “Ghair Dakhalkar Bila Lagan Bawajah Kabza.” In the award made by the Collector on the 16th of June, 1958, under section 11 of the Act the compensation for this area was assessed at Rs. 8,511‑11‑0 but was treated as a “disputed item” and deposited with .the Civil Court under section 30 of the Act “so that the claim of the person with adverse possession could be determined and the payment made to the rightful claimant”. Section 30 provides as follows:‑

 

“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.”

 

Subsequently on 14‑3‑59 the appellant also got a mutation sanctioned in his favour recording him as owner on the basis of his adverse possession for the last 36 years.

 

The reference under section 30 was thereafter registered in the Court of the Senior Civil Judge, Lahore, as Case No. 54‑L. C. on the 28th of March 1961. Before the latter no one appeared to contest the claim of the appellant in spite of notices having been duly issued. The Court, nevertheless, felt some doubt as to the locus standi of the appellant to appear before, it to prove his entitlement to the entire compensation, as he had himself made no application to the Land Acquisition Collector for making the reference, and framed two issues on the 8th of May 1962. The decision of the Court was ultimately announced on the 26th of October 1962, in favour of the appellant after considering the oral evidence adduced by him as well as the record of the mutation produced on his behalf showing that he had been recorded as owner on the basis of his long possession of about 36 years. This mutation also appeared to have been sanctioned after due notice to the Custodian, Evacuee Property, who took the view that since the appellant was in, possession from before 1‑3‑47 it was not necessary for him to issue any “no objection certificate.” The Court accordingly held the appellant entitled to the whole of the compensation money allowed by the Land Acquisition Collector and directed that if the amount had been sent to. the Court for distribution, a cheque should issue in favour of the appellant.

 

Subsequently the appellant withdrew the amount from the Court by granting a receipt therefor. Certified copy of the receipt now filed by the respondent does not disclose the date on which the withdrawal was made nor does it give the number or the date of the cheque by which the amount was paid. The receipt does also indicate that the amount was withdrawn under protest. Notwithstanding this, the appellant on the 31st of ‑December, 1962, filed an objection before the Land Acquisition Collector complaining about the inadequacy of the compensation. In this objection petition he also alleged that h was never served with any notice under section 9 or section 12 (2) of the Act and furthermore than he, not being ,considered by the department to be the owner of the land or a person interested, could not have preferred any objection to the arbitrary and ex parte fixation of the compensation at Rs. 905 per kanal.

 

The Land Acquisition Collector, however, on the 8th of January 1963, .declined to entertain the objection on the ground that it was barred by time under the provisions of section 18 of the Land Acquisition Act. ‑ The appellant again on the 28th of January 1963, made another unsuccessful attempt to have his objection to the award of compensation heard in his presence. He then invoked the jurisdiction of the High Court under Article 98 of the Constitution on the 28th of March, 1963. A Division Bench of the High Court, however, repelled his contentions and held that in view of the “clear provisions of section 18 (2) (b), which provide that the objections in such case could have been filed within 6 months”, the order of the Collector refusing to entertain the objection was unexceptionable,, and dismissed the petition in limine.

 

Leave was granted in this case to consider “whether it is not the case that the right of the petitioner (now appellant) either to accept or to object to the award in respect of the portion of the land in which. he is interested, only arose after the settlement by the Court of the dispute as to his entitlement.”

 

Learned counsel appearing in support of this appeal has contended that both the Land Acquisition Collector and the High Court had erred in the view that his objection was barred by time. It is firstly argued that the “date of the award” from which the periods mentioned in section 18 of the Act have to be calculated can only refer to the date of a final and complete award which, according to section 11, must, in order to be so complete, be an award with respect to all the matters referred to therein. This section is in these terms.

 

“11. On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land at, the date of the publication of the notification under section 4, subsection (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of‑

 

(i) the true area of the land;

 

(ii) the compensation which in his opinion should be allowed for the land; anal

 

(iii) the apportionment of the said 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.”

 

Support for this contention is also sought to be gathered from the language of section 12 of the Act wherein it appears that the conclusiveness attaching to the award is not only in respect of the value of the land but‑ also in respect of its true area and the apportionment of the compensation among the persons interested. Section 12 reads thus:‑

 

“12. (1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not of the true area and value of the land, and the appor tionment of the compensation among the persons interested.

 

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.”

 

The provisions of subsection (2) above are also invoked to show that they require the Collector to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. A person interested has also been defined under section 3 of the Act as including “all persons claiming an interest in compensation to be made on account of the acquisition of the land under this Act.” It is, therefore, argued that in determining the date of the award referred to in section 18 of the. Act one must read it along with the provisions of sections 11 and 12; and unless an award is complete in respect of the matters mentioned in section 11 and notice thereof has been given to the persons interested as required by section 12 (2) it should. not be held to be a conclusive award within the meaning of the Act:

 

In the present case it is further pointed out that the Collector was fully aware from the entry in the revenue records that the appellant was a person interested within the meaning of the Act and it was because of this that he treated his claim as a disputed item and made the reference under section 30 of the .Act. It could not, therefore, be maintained that the award was complete qua the appellant until the apportionment of the compensation money had been made in his favour. If be had filed an objection earlier he would have been met with the reply that he had no locus standi, as his entitlement had not been admitted or determined.

 

In support of this contention learned counsel for the appellant has also relied on certain observations in the case of Secretary of State v. Bhagivan Prasad and others (A I R 1929 All. 769) to the effect that “the word `award’, as it occurs in section 18, is an abstract noun. The date of the award, therefore, is the date on which the Collector awards to the claimant the compensation for the land acquired under the Act i.e. the date on which a formal declaration is made by the Collector of the amount of compensation and of the person to whom the same is payable.”

 

Reliance is also placed on another decision from the Indian jurisdiction in the case of Tulsiram Tukaram v. K. L: Pande and others (A I R 1956 Nag. 11) where it was held that “the possession of the trespasser even if adverse on the date of reference of dispute under section 30 of the Land Acquisition Act, cannot, before it ripens into title, be considered as an interest entitled to be compensated under the Land Acquisition Act.” In none of these cases, however, was the question of limitation raised or considered.

 

Learned counsel appearing for the State has, on the other hand, contended that neither the apportionment nor the decision of the question as to the persons to whom the compensation assessed or any part thereof is payable is a necessary part of the award, but that the award is complete as soon as the Collector has decided with regard to the 3 matters mentioned in section 11, namely, (i) the area of the land included in the award, (2) the total compensation to be allowed, and (3) the apportionment of that compensation among all the persons interested in that land. The Act, according to him, does not appear to contemplate that where more than one person is interested in a parcel of land the Collector has any duty to decide as to the competing rights of the persons so interested. Such a dispute forms no integral part of the award and, as observed by the Privy Council in the case of T. B. Ramchandra Rao and another v. A. N. S. Ramchandra Rao and others (2).

 

The award as constituted by the statute. is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information meaning thereby people whose interests are not in dispute but from the moment when the sum has been deposited in Court under section 31 (A I R 1922 P C 80) the functions of the award have ceased; and all that is .left is a dispute between interested people as to the extent of. their interest.

 

Such dispute forms no part of the award, and it would indeed be strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy ‑certain rights of appeal, which would be wholly taken away when the piece of land was represented by a sum of money paid into Court.”

 

It is further contended on behalf of the respondent that the award made in this case by the Collector on the 6th of June 1958, was complete in every respect. It had decided on all the three points mentioned in section 11, namely, the area of the land, the quantum of the compensation and the persons to whom it was payable if there was no dispute. The Collector had information from the revenue records that the appellant was claiming to be in adverse possession of the land but since he bad no jurisdiction to decide under the Land Acquisition Act as to whether that adverse possession had matured into a good title by lapse of time he treated the appellant’s claim as a disputed item and directed that a reference with regard to the entitlement of the appellant be made to the Court under section 30 of the Act in order to determine as to who was the rightful claimant‑the evacuee owner or the appellant claiming title by adverse possession.

 

In this view of the matter it is argued that even .according to the contention of the appellant the award was complete in June 1958, and the time prescribed for objecting to that award under proviso (b) to section 18 was within six months from the date of the award and no more. This six months expired long ago and, therefore, the Land Acquisition Collector was right in refusing to entertain the objection filed in December 1962.

 

Section 18 may here be conveniently quoted :‑

 

“18.‑(1) Any person interested who has not accepted the award may be 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, subsection (2) or within six months from the date of the Collector’s award, whichever period shall first expire.”

 

In the alternative it is claimed on behalf of the respondent .that since the appellant withdrew the compensation awarded without any protest, he has no longer any right to object to the award by reason of the provisions of the second proviso to section 31 (2) of the Act. This subsection reads as under :‑

 

“(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, if there be any dispute as to the title to receive the compensation or as to the apportion ment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18 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.”

 

Reading this proviso along with section 18 it will appear that a person, who has taken payment without protest, must be deemed to have waived his objections to the award, if any, and cannot thereafter claim a reference under section 18. The opening words of section 18, subsection (1), also seem to indicate that only a “person interested who has not accepted the award” may require that the matter may be referred by the Collector. This intention of the Legislature, it is said, is further confirmed by the provisions of clause (b) of section 20, which deal with notice by the Court to which the reference has been made, for, under this clause notice is not required to be served on persons who have consented, without protest, to receive payment of the compensation awarded. Section 20.provides as follows:‑

 

“20. The Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objec tion, and directing their appearance before the Court on that day, to be served on the following persons, namely:‑

 

(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 the compensation, the Collector.”

 

This ground was, of course, not mentioned by the Collector in his order now being impugned before this Court but it has been clearly taken in the respondent’s concise statement. It was, therefore, consider that the appellant could not legitimately complain of having been taken by surprise but still this Court reserved its judgment and allowed time to the appellant to file a copy of his application, if any, which he made for withdrawal of the money or any other document to show, as now asserted by him, that the compensation was withdrawn under protest.

 

He has now filed ‘a petition to say that no such application was made, but a copy of the receipt granted at the time that the cheque was received from the Court has been filed by Govern ment. It does not, as already stated, show that the money was withdrawn under protest. The second proviso to section 31 (2) is, therefore, fully applicable and would appear to constitute a bar to the appellant’s right to now claim a reference under section 18, B for, he can no longer be treated to be a person interested who has not accepted the award. On this ground alone this appeal must fail, but since the question of limitation has been argued at c some length I would like to express my opinion on this question as well.

 

The Land Acquisition Act does not define the expression “date of award” and there appears to be also some amount of conflict in judicial opinions as to the exact meaning to be attached to these words in section 18. Some Courts have taken the view that the date of the award being indefinite must be taken to mean the date of the filing of the award under section 12, whilst some other Courts have held that it would be the date on which the land Acquisition Collector makes a formal aim. declaration under section 11. A third view taken is that the: date of the award is the date on which the award has been properly drawn up with all the particulars of apportionment etc., as required by section 11 of the Act, and signed by the Collector, vide L. E. J. Solomon v. H. C. Stork (A I R 1934 Cal. 758). It would, however, appear that in none of these cases has the meaning of the words “date of the award” been extended to the extent now suggested by the appellant, namely, that it should be calculated from ,the date when the entitlement of the objector is determined by another Tribunal or Court. It seems to me that the provisions of the; Land Acquisition Act must be read as a whole and reading it ins this way it appears that the Act has provided for 2 kinds of reference, one under section 18 and the other under section 30 of the Act, but the scope and the object of these two references are quite distinct and separate. Under section 18 the reference is of a dispute with regard to the area. or the quantum of the compensation or as to the apportionment of the same amongst the persons interested. This reference is strictly limited to they above matters; whereas under section 30 the reference. may be; made if a dispute arises as to the method of apportionment of the compensation or as to the persons to whom the same or any part thereof is payable. The subject‑matter of this latter reference is limited to dispute purely of title in which the Govern ment is not directly inserted. The award of the Collector, ‘as pointed out by Lord Buckmaster in the case of T. B. Ramchandra Rao v. A. N. Ramchandra Rao and others is an award of the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information meaning thereby people whose interests are not dispute, but where there is a dispute as to who are the persona interested or as to the extent of their interests or as to the nature of their respective interests that would not be for the Collector to decide under section 18, but should be left to the Courts to adjudicate upon under section 30.

 

The fact that admittedly no notice of the filing of the award was served upon the appellant under section 12 (2) of the Act is, in no way, relevant for the purpose of deciding this controversy as to the time within which the objection should be filed for. under section 18, proviso (b), it would appear that if notice served the period of limitation is only six weeks from the date of the service of the notice but in other cases six months from the date of the Collector’s award. This proviso fixes a special period of limitation and since the Land Acquisition Act does not make the provisions of the Limitation Act applicable it would appear that in the same case of an objection under section 18 the maximum, period allowable is six months from the date of the making of the award in accordance with section 11.

 

I am also inclined to agree with the view taken by the Calcutta High Court in the case of Solomon that the award must. in order to be a complete award, contain a formal declaration with regard to all the matters referred to in section 11 and be signed by the Collector. But even accepting this view I find myself unable to agree that in the present case the award made by the Collector in June, 1958, was not in every way final in accordance with the provisions of section 11. It specified the area to be acquired, it specified the rate of compensation payable and also made the apportionment, but since it did not accept the title of the appellant of whose interest it was duly made aware by the entry in the revenue record it referred the question of the appellant’s title to the land and to receive the compensation to the Court under section 30. The award was, therefore, complete in every way and it could not be challenged after the expiry of six months from that date. The argument that the appellant would have had no locus standi to object to the award until his title was determined is clearly untenable, for, under the definition given in section 3 he was entitled to be treated as a person interested even if he merely claimed an interest in the compensation. In any event, from the date the mutation in his favour was sanctioned in 1959 his right to be a person interested could not be possibly disputed. The Collector and the High Court were, therefore, in ,my opinion, right in holding that the appellant’s objection filed in December 1962, was well out of time.

 

I also find it difficult to accept that the appellant was not aware of the award that had been made. At any rate, from the date when the Court of the Civil Judge gave him notice to appear in 1961 he was certainly aware of the award. He did not file his objection even within six months of this date.

 

For the reasons given above I am of the view that this appeal must fail and would, accordingly, dismiss the same but would make no order as to costs.

 

S. A. RAHMAN, J.‑I agree.

 

FAZLE‑AKBAR, J.‑I agree.

K. B. A. Appeal dismissed.

 

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