1. This is a revision application directed against an order of the City Judge, Srinagar, holding that the suit for declaration brought by the plaintiffs in respect of their alleged share in the compensation awarded to the defendant, was maintainable. A preliminary objection was taken by counsel for the respondents that the revision application would not lie inasmuch as the order passed by the trial Judge was an interlocutory order and was not revisable. The learned counsel for the applicant argued in reply that the question before the trial Court was whether or not it had jurisdiction to try the suit and as the trial Court held that it had jurisdiction to try the suit it usurped the jurisdiction which it did not possess and, therefore, the order was revisable. In view of the fact that the question involved in this case was that of jurisdiction, in my opinion, revision would lie. The preliminary objection raised by the learned counsel for the respondent is, therefore, overruled.

2. The question for consideration is whether the provisions of the Land Acquisition Act (No. X of 1990) bar a suit of this description. The relevant provisions of the Land Acquisition Act may be reproduced here. Section 6 of the Act provides that when the Government is satisfied that any particular land is needed for public purpose, a declaration shall be made to that effect under the signature of the Revenue Minister or of some officer duly authorised in this behalf.

3. Under Sec. 9 the Collector has to give public notice at convenient place on or near the land to be taken stating that the Government intends to take possession of the land and that the claims to compensation for all interests in such land may be made to him. Sub-section (2) of Sec. 9 lays down that the notice should state the particulars of the land so needed and requires all persons interested in the land to appear personally or by agent, before the Collector at a time and place mentioned therein. Section 11 requires the Collector to enquire into the objections (if any) which, any person interested has stated pursuant to a notice given under Sec. 9 to the measurements and into the value of the land and into the respective interests of the persons claiming the compensation and has to make an award under his hand in regard to the points mentioned above.

4. Section 12 lays down that “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 the value of the land, and the apportionment of the compensation among the persons interested”. Sub-section (2) of Sec. 12 lays down that the Collector shall give immediate notice of his award to such of the persons interested, as were not present personally or by their representatives when the award was made.

5. Section 18 provides that 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 compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. Section 32 is material for the purpose of this case and its relevant provisions are as under:

“32(1) On making an award under Sec. 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto, according to the award and shall pay to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title or to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of compensation in the Court, to which a reference under Sec. 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.”

6. On behalf of the defendant petitioner it is argued that the suit was not maintainable as the plaintiffs could have filed an application before the Collector claiming a share in the compensation awarded and asked the Collector to make a reference to the Court under Section 18 of the Land Acquisition Act. The plaintiffs having failed to avails of this remedy were debarred from maintaining the present suit. It is further argued that where a statute allowed a person a certain remedy and it that remedy is not availed of a general remedy by way of a civil suit would be barred.

7. It is not disputed that the plaintiffs were not given any notice under Section 9 of the Land Acquisition Act and after the award was filed no notice was served on the plaintiffs under Sec. 12 of the Act. Under these circumstances, it is argued that the plaintiffs could not have availed of the remedy provided under Sec. 18 of the Act i.e, they could not have filed an application before the Collector asking him to make a reference to the Court for determining their share in the compensation awarded.

8. Counsel for the petitioner has argued that the respondents had knowledge about the award made by the Collector and even if no notice was served on them they could have within the prescribed time made an application to the Collector for making reference to the Court under Sec. 18. My attention has been drawn to the averment in the plaint in which it has been stated that two months prior to the date of the suit the plaintiffs respondents came to know about the award made by the Collector in favour of thess defendant petitioner.

9. It is argued that the plaintiffs had still one month from the date of the knowledge within which they could have moved the Collector to make a reference but they did not do so, and, therefore, they were precluded from filing a civil suit claiming their share in the award. Although there is no mention in the written statement that the plaintiffs had knowledge of the award and that notices under the Land Acquisition Act were not necessary yet from the averments in the plaint counsel for the defendant has tried to show that the plaintiffs had knowledge in respect of the acquisition proceedings and were aware of the award at least a month before the limitation expired and it was contended that they should have taken steps under Section 18 of the Land Acquisition Act and were not competent to file the present suit.

10. After giving my best attention to the arguments of both sides the conclusion I arrive at is that the plaintiffs are not precluded from maintaining the present suit merely by reason of their having had the knowledge that the compensation was awarded to the defendant trader the Land Acquisition Act. It is true that the Land Acquisition Act confers jurisdiction upon a special Court to investigate all matters which may possibly arise between the parties but the Act itself makes a provision by which a person, who may receive the whole or any part of any compensation awarded under the Act, is made liable to pay the same to the person lawfully entitled thereto.

11. From the scheme of the Act it is clear that a right is created in the Government to secure land needed for public purpose. The Act confers upon a private individual whose land is compulsorily acquired a corresponding right to receive compensation for the land. The Act further provides for determination by the Collector of the area, the value of the land and apportionment of the compensation. It also provides for judicial determination by a special Court if there is a dispute in regard to measurement of land, the amount of compensation and the apportionment of compensation amongst the persons to whom it is payable and for the liability of a person who may have received more than was due to him to pay the same to the person lawfully entitled, thereto.

12. The third proviso to sub-sec. (2) of Sec. 32 is an exception to the procedure provided by the Act itself for apportionment of compensation amongst the persons interested. If the persons interested have appeared before the Court to which reference under S. 18 has been made by the Collector it is not open to them to agitate the question of apportionment again in another civil Court by a separate suit. But if a person has neither appeared before the Collector nor before the Court to which reference was made by the Collector it will not be fair and equitable to debar him from seeking his remedy by separate suit in the Civil Court against the person who has received more than his share of compensation and is liable to pay the same to him, in this view I am fortified by a Privy Council decision in the case Nilmoni Singh Deo v. Ram Bandhu Rai, ILR 7 Cal 388, where it was held:

“In proceedings under the Land Acquisition Act (X of 1870) Ss. 38 and 39, the persons entitled to take land compulsorily, deal only with those who are in possession of it, or who are ostensibly its owners. It may happen that the real owner being an infant, or a person otherwise under disability, does not appear, and is not dealt with in the first instance. There is therefore, a proviso in S. 40 to the effect that nothing contained in that or the preceding section “shall affect the liability of any person who may receive the whole, or any part of any compensation awarded under the Act to pay the same to the person lawfully entitled thereto.” This applies only to persons whose rights have not been dealt with in adjudications in pursuance of Ss. 38, 39 and 40: and does not permit a person whose claim has been disposed of in the manner pointed out in the Act, to have that claim re-opened, and again heard, in another suit”.

13. The words of the proviso to Sec. 40 mentioned in the above ruling are exactly the same as those of the third proviso to sub-section (2) of Section 32 of our Land Acquisition Act. The Privy Council authority has been followed by the Calcutta High Court in the case Smt. Punnabati Dai v. Rajah Pudmanund Singh Bahadur, 7 Cal WN 338, and in another case Bhandi Singh v. Ramadhin Roy, reported in 10 Cal WN 991. In all these cases the view taken is that when there has been no reference made under Section 18 of the Land Acquisition Act, there has been no adjudication of the rights of the claimants inter se because Section 12 of the Land Acquisition Act makes the award of the Collector final and conclusive only as between himself on the one hand and the body of the claimants on the other, and not as between the claimants inter se. In the instant case the respondents had neither received any notice under Section 9 nor under Section 12 of the Land Acquisition Act. Moreover, they are minors and their rights were not adjudicated upon by the Collector. Under these circumstances, in my view the mere fact that the plaintiffs happened to have some knowledge about the award made by the Collector in favour of the defendant would not be enough to preclude them from filing the present suit in enforcing the defendant's liability, if any, to pay them their share in the compensation received by him. The trial Court has rightly held that the suit is maintainable. This revision application has no force and it is dismissed with costs.

FD/R.G.D

14. Revision dismissed.