British India Steam Navigation Co. v. The Secretary Of State For India Opposite Party.

These four rules are directed against two orders of the same description made by the Land Acquisition Judge of the 24-Pergunnahs in two references made to him under sec. 18 of the Land Acquisition Act at the instance of two claimants, the British India Steam Navigation Co. and the Garden Reach Spinning and Manufacturing Co. The properties in respect of which the references were made have been acquired by the Government for the Commissioners of the Port of Calcutta. The orders of the Land Acquisition Judge have been assailed before us on behalf of both the Secretary of State and the clamants. To appreciate the true bearing of the questions raised which are of considerable importance and not wholly free from difficulty, it is essential that we should state in brief outline the circumstances under which the orders in controversy were made by the Court below.

After the references under sec. 18 had been made by the Collector, two applications in each of the cases were presented on behalf of the Secretary of State to the Land Acquisition Judge on the 22nd and 23rd June 1910. In the first application, objections were taken to the validity of the award of the Land Acquisition Collector on the ground that under that award various sums had been awarded to the claimants in contravention of the law; it was accordingly prayed that the award might be remitted with directions that the Collector do proceed according to law or that the award be set aside, recast, modified or reduced. In the second application, it was prayed that under Order II, Rule 12 of the Civil Procedure Code of 1908, an order might be made upon the claimants to make discovery on oath of all documents in their possession relating to the, matters in controversy. In respect of the first of these applications, the learned Judge in the Court below has held, first, that he had no power to remit the award to the Land Acquisition Collector for reconsideration, and, secondly, that he could not reduce the total amount which may have been properly awarded by the Collector; but the learned Judge has also expressed the opinion that he had power to review the items which made up the total award, so as to reduce any item by an amount equal to that by which another item might have to be increased; in other words, that if the Judge was satisfied that the Collector had exceeded his statutory authority and paid away sums which he was not competent to award under the provisions of the Act, the Judge had authority to review that portion of the award of the Collector and set it aside on the ground that it was illegal and void. In respect of the second application, the learned Judge has expressed the opinion that before an order for discovery was made it would be to the interest of the litigants to have the questions in controversy between them definitely ascertained, but he has nevertheless directed the claimants to make a full and sufficient affidavit of all documents in their possession or power relating to the matters in question and also to produce for the inspection of the legal advisers of the Secretary of State all documents mentioned in such affidavit except such as they are legally entitled to refuse to produce. In the rules obtained by the claimants, the order of the learned Judge has been assailed substantially on two grounds, namely, first, that the order for discovery ought not to have been made and, secondly, that he had no jurisdiction to review the award of the Collector, at the instance of the Secretary of State, to set aside any portion of it as illegal and void and generally to re-adjust the various items, some of which were not impeached by the claimants. In the rules obtained by the Secretary of State, the order of the learned Judge has been assailed on the ground that he has for erroneous reasons held that he had no jurisdiction to remit the award to the Collector and that upon the facts alleged by the Secretary of State and not controverted by the claimants though ample opportunity was repeatedly offered to them to do so, he ought to have exercised such jurisdiction. It has been further argued, in the alternative, in these rules, that if the learned Judge had no jurisdiction to remit the award to the Collector, this Court possesses such jurisdiction; and that we should, in the exercise of such jurisdiction, remit the award to the Collector for reconsideration as otherwise grave and irreparable injury would be done to the Commissioners of the Port of Calcutta for whose benefit the properties have been acquired by the Government. The principal questions, therefore, which emerge for consideration from the arguments which have been addressed to us on both sides, may be formulated as follows:—First, Has this Court jurisdiction to review the award of the Collector, to cancel or modify it, or to remit the proceedings to him for reconsideration; secondly, Has the Land Acquisition Judge jurisdiction to take action of the same description; thirdly, Has the Land Acquisition Judge jurisdiction to review, at the instance of the Secretary of State, the award of the Collector in 50 far as it is not challenged by the claimants, to reexamine items not controverted by them, and to set aside the award partially on the ground that it is illegal and void, and, fourthly, Has the Land Acquisition Judge jurisdiction to make an order for discovery, if so, “whether that jurisdiction has been appropriately exercised in these cases. These questions have been argued with great earnestness and elaboration, justified not merely by the value of the claim but also by the novelty of some of the questions in controversy. Since the close of the hearing of these rules, we have minutely scrutinized all the materials which have been placed before us and have anxiously considered every argument addressed to us on both sides. We now proceed to state the conclusions at which we have arrived.

In so far as the first of the four questions which arise for consideration is concerned, it has been argued on behalf of the Secretary of State that it is competent to this Court to review an order made by the Collector under sec. 11 of the Land Acquisition Act, either under sec. 115 of the Civil Procedure Code of 1908 or under sec. 15 of the High Courts Act, 1861, and in support of this proposition, reliance has been placed upon the case of Administrator-General v. Land Acquisition Collector. In our opinion, this contention is entirely unsustainable, because the Collector when he holds an enquiry and makes an award under sec. 11 of Act I of 1894, is not a Court and is undoubtedly not a Court subject to the appellate jurisdiction of the High Court. In support of this proposition, reference may be made to the observations of this Court in, Durga Das v. Queen-Empress, Ezra v. Secretary of State and their Lordships of the Judicial Committee in Ezra v. Secretary of State. In Ezra v. Secretary of Stale, this Court observed that, throughout the proceedings, the Collector acts as the agent of the Government for the purpose of the acquisition, clothed with certain powers to require the attendance of persons to make statements relevant to the matter which he has to investigate; but he is in no sense of the term a judicial officer, nor is the proceeding before him a judicial proceeding. Again in Ezra v. Secretary of State, their Lordships of the Judicial Committee observed that when the sections relating to the Collector's award are read together, it is found that the proceedings resulting in an award are administrative and not judicial; that the award in which the enquiry results is merely a decision binding upon the Collector as to what sum shall be tendered to the owner of the lands; and that if a judicial ascertainment of the value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court. On this principle, it was ruled that, in the absence of fraud or corruption, the fact that the Collector obtained information without the knowledge of the claimant and did not disclose it on the enquiry, would not vitiate his proceedings. It is, in our opinion, reasonably clear from an examination of the provisions relating to the enquiry and award by the Collector that he is not a Court within the meaning of sec. 115 of the Code of 1908, much less is he a Court subject to the appellate jurisdiction of the High Court, within the meaning of sec. 15 of the High Courts Act of 1861. The case of Administrator-General v. Land Acquisition Collector is obviously distinguishable. The learned Judges merely held that when a Collector refuses to make a reference to the Civil Court when an application is made under sec. 18, he acts judicially and his order is subject to revision by the High Court. Whether this view is or is not well-founded, it is needless to examine for our present purposes, because the learned Judges in that very case conceded that up to and including the time of marking his award, the Collector is in no sense a judicial officer, that the proceedings before him are not judicial proceedings, and however irregular his proceedings may be, the High Court cannot interfere with his award made under sec. 11 of the Act. It had been suggested, however, on behalf of the Secretary of State, upon the authority of the decision of this Court in Lekhraj Ram… v. Debi Pershad…Opposite Party. that there is no form of judicial injustice which the High Court, if need be, cannot reach under the Charter Act. With reference to this decision it must be observed that the injustice which was there sought to be rectified was due to the action of a Court subject to the appellate jurisdiction of the High Court, namely, the Court of the Chief Presidency Magistrate at Calcutta, and we are entirely in accord with the view indicated in this decision that the exercise of the powers of superintendence of this Court cannot be fettered any any artificial rules or crystallized into, inelastic formulæ. To attract the operation, however, of sec. 15 of the High Courts Act, 1861, it must be established in the first place that the order assailed has been made by a Court subject to the appellate jurisdiction of the High Court. The section does not entitle the High Court to rectify what may be called executive or administrative injustice in contradistinction to judicial injustice; nor can forms of procedure be legitimately ignored altogether to bring a case within sec. 15 of the High Courts Act; for instance, it would be idle to contend that if a litigant has his remedy by a regular suit, he may nevertheless claim as a matter of right the interference of this Court under the Charter Act. Reference has also been made to the cases of Abdool Ali v. Verner and Luchmessur Singh v. Chairman, Darbhanga Municipality to show that this Court has authority to review an award by a Collector. These cases, however, are of no real assistance and do not support the contention put forward on behalf of the Secretary of State. In the first case, the decision which was assailed was an award by the Judge. In the second case, the question of the legality of the award of the Collector was raised in a regular suit. Indeed the cases of Luchmessur Singh v. Chairman, Darbhanga Municipality, Saunby v. L.W Commissioners and Gaekwar of Baroda v. Gandhi reviewed by this Court in Rameswar Singh v. Secretary of State indicate that the Civil Courts are not powerless to afford relief to a person aggrieved by proceeding taken in nominal compliance with statutory provisions, though there is apparently room for serious controversy, how far, if at all, and in what precise mode, such relief can be claimed by the Secretary of State or the Corporation for whose benefit proceedings have been taken [In re Merwanji Cama(11), Darjadinomal v. Secretary of State(12), where reference is made to Attorney-General v. Great W. Ry. Co.(13)]. It is sufficient for us to hold that the Secretary of State cannot invite this Court to review the award of the Collector in the exercise of our revisional jurisdiction or the powers of superintendence, vested in us under the Charter Act. The first question must consequently be answered against the Secretary of State.

In so far as the second question is concerned, we have been invited by the learned Counsel for the Secretary of State to hold that the Land Acquisition Judge had jurisdiction to review the award of the Collector, to set it aside as illegal and made in contravention of the provisions of the law, and to direct him to recast, modify and reduce it. In support of this proposition, reliance has been placed upon the cases of Shyam Chunder v. Secretary of State and Gajendra Sahu v. Secretary of State. This proposition has been strenuously controverted by the claimants. It has been argued on their behalf that the Court of the Land Acquisition Judge is a Court of strictly limited jurisdiction and that the scope of the enquiry before it is accurately defined by the statutory provisions on the subject and cannot possibly be enlarged so as to embrace an enquiry into the legality of the proceedings before the Collector antecedent to his award. In support of this position, reliance has been placed upon the cases of Imdad Ali v. Collector of Farrakhabad(16), Crown Brewery v. Collector of Dera Dun(17), Babujan v. Secretary of State(18), Bhandi Singh v. Ramadhin Rai, Raghunath v. Collector of Dacca, Nilmoney Singh v. Rambundhu(21) and reference has been made to the observations of Lord Truro in London & N.W Ry. Co. v. Bradley(22) which, it is said, are not affected by the decision of the House of Lords in Brand v. Hammersmith(23). In our opinion, there is no room for controversy that the Court of the Land Acquisition Judge is a Court of special jurisdiction, the powers and duties of which are defined by the statute, and that there is no foundation for the contention put forward on behalf of the Secretary of State that a Court of this description can be legitimately invited to exercise inherent powers so as to assume jurisdiction over matters not intended by the Legislature to be comprehended within the scope of the enquiry before it. The cases of Shyam Chunder v. Sectetary of State and Gajendra Sahu v. Secretary of State are clearly distinguishable. In the first of these cases the property acquired, namely, fishery rights, was not land within the meaning of the Act, and could not by any possibility form the subject-matter of statutory acquisition. In the second case, the property actually acquired was different from that mentioned in the declaration. Under such circumstances, it was ruled by this Court that the Land Acquisition Judge might refuse to take cognisance of a reference made by the Collector under sec. 18 of the Land Acquisition Act. It must further be observed that in these two cases, it was the claimant who ultimately took up the position that the reference was without jurisdiction and it was at his instance that the objection was allowed to prevail. The substance of the matter, therefore, was that the claimant, although he had obtained a reference under sec. 18, subsequently resiled from that position, and invited an order for what really amounted to a discharge of the reference. This position is perfectly intelligible, because such a course would still leave it open to the claimant to sue the Secretary of State for damages for unauthorizad interference with his property in merely nominal compliance with the provisions of the statute. Samby v. L.W Commissioners, Gaekwar of Baroda v. Gandhi, Rameswar Singh v. Secretary of State. The position, however, which we are here invited to affirm is of an entirely different description. The claimant has here obtained a reference under sec. 18 of the Land Acquisition Act, because he is dissatisfied with the award. It is the Secretary of State who has challenged the reference. The contention on his behalf in substance has been that, not only has the claimant no grievance, but that he has been awarded large sums of money by the Collector in a wholly unauthorized manner on account of a jetty, an over-budge, an electric plant, stone ballast, a way-bridge and loss of time due to possible removal of business to other premises, for all of which the claimant, it is suggested, has not the remotest vestige of a legal claim. It has further been urge that the statutory allowance on these items has been improperly awarded in contravention of the plain provisions of the statute and further that the sums awarded for land, houses and trees have been largely in excess of their market value. It was upon these allegations and others of a like character, that the Counsel for the Secretary of State invited the learned Judge in the Court below to review the award of the Collector, to cancel it, and to remit it to him to be recast, modified or reduced. In our opinion, the course which the learned Judge was invited to pursue was never contemplated by the framers of the statute, and is not authorized by any provision thereof. It is not necessary for us to review minutely the provisions of the Act which were recently examined by this Court in detail in the case of Raghunath v. Collector of Dacca. The scope of the reference made at the instance of a claimant under sec. 18 of the Land Acquisition Act is manifestly of a strictly limited character. If the contention of the learned Counsel for the Secretary of State were well founded, we would have to hold in substance that a reference under sec. 18 may be made at the instance not merely of the claimant but also of the Secretary of State. It follows indisputably, however, from an examination of the earlier sections of the Land Acquisition Act and especially of secs. 9, 10 and 11 that the expression “any person interested “in sec. 18 does not include the Secretary of State. Sec. 50 on the other hand, makes it clear beyond the possibility of any dispute that a local authority or company for whose benefit land may be required by the Government, is not entitled to demand a reference under sec. 18. Municipal Corporation v. Jogendra. If, therefore, the Secretary of State is not entitled to claim a reference under sec. 18 of the Land Acquisition Act, as we hold he is not, we find it difficult to appreciate how at his instance the Land Acquisition Judge can be invited to review the award of the Collector, to cancel it or to remit it for modification or reduction. Obviously, the Secretary of State cannot be permitted to achieve by the suggested indirect method what, it is indisputable, he cannot obtain directly. Sec. 18 and other sections which follow it, made it reasonably plain that the question of the legality of the acquisition or the impropriety of the award of the Collector were not intended by the Legislature to form the subject of enquiry by the Lind Acquisition Judge at the instance of the Secretary of State, The reference is obtained by the claimant, the objections he can urge against the award of the Collector are specified in sub-sec. (7) of sec. 18; under sec. 20, the Court has to determine the objection; and under sec. 21 the scope of the enquiry is restricted to a consideration of the interests of the persons affected by the objection. The questions, therefore, which were sought to be raised before the learned Judge in the Court below at the instance of the Secretary of State were manifestly questions which as a Court of special jurisdiction he was not competent to try, and we feel no doubt that he acted properly when he refused to remit the award to the Collector for reconsideration, modification or reduction. The second question must consequently be decided against the Secretary of State.

In so far as the third question which arises for consideration is concerned, the learned Judge in the Court below has held that although he has no jurisdiction to reduce the total sum awarded by the Collector, he is entitled upon a reference under sec. 18 made at the instance of the claimant, to consider items not disputed by the claimant, with a view to reduce them by an amount which the claimant may prove ought to be added to other items. In support of this position the learned Judge has placed reliance upon the case of Hughly Mills Co. v. Secretary of State. An examination of the judgment, however, taken along with the points in controversy in that case, makes it clear that the question now raised did not arise for consideration at all; and the isolated passage upon which reliance is placed cannot be deemed to embody a judicial determination of this point. The answer to the question raised, therefore, must depend upon the provisions of the Land Acquisition Act to which reference has already been made in the course of our examination of the second question. Sec. 18 contemplates a reference at the instance of the claimant, and indicates the objection that may be taken by him to the award, he is also required to state the grounds upon which such objection is taken. Under sec. 20, the Court proceeds to determine the objection, that is, the objection taken by the claimant under sec. 18. Sec. 20 does not contemplate that any cross-objection, if such an expression is permissible in this connection, may be taken by the Secretary of State. To take a concrete illustration, suppose the property acquired is land and a building thereon. The Collector in his award values the land at Rs. 500 a cottah and allows Rs. 10,000 for the house. The claimant obtains a reference on the ground that the land has been undervalued; is it open to the Secretary of State, who cannot obtain a reference under sec. 18, to urge that the building has been overvalued to such an extent that the objection of the claimant as to the undervaluation of the land, however well-founded it may be, must fail? We are not prepared to hold that such a procedure was contemplated by the Legislature. We are not unmindful that sec. 18 when it specifies the four heads under which objection may be taken by the claimant, speaks of the amount of compensation. This expression by itself may be comprehensive enough to afford some basis for an argument that the whole question of amount of compensation is referred. But this view, we think, is sufficiently negatived by sec. 20, which directs the Court to determine the objection, that is, the objection of the claimant. Because the claimant objects to a particular item, and obtains a reference, the Court cannot review another, a totally distinct and unconnected item. The view we take is to some extent supported by the principle which underlies the decisions of this Court in Abu Baker v. Peary Mohan, Gobinda Kumar v. Debendra Kumar, Mahomed Safi v. Haran Chandra and Prabal Chandra v. Peary Mohan. That principle is, as it is put in the case of Promotha Nath v. Rakhal Dass, that the Court of the Land Acquisition Judge is restricted to an examination of the question which has been referred by the Collector for decision under sec. 18, and the scope of the enquiry cannot be enlarged at the instance of parties who have not obtained, or, who, as in the case before us, cannot obtain any order of reference. In our opinion the learned Judge was in error when he held that he had authority to review the award of the Collector in regard to matters not challenged by the claimant and to set it aside on the ground of illegality. The matter of which the learned Judge was properly seized was the objection of the claimant and he should now proceed to determine its validity. The third question must consequently be awarded against the Secretary of State.

In so far as the fourth question raised before us is concerned, it is really comprised in a very narrow compass. As we have already stated an application was made in the Court below on behalf of the Secretary of State for discovery under Order 11, Rule 12 of the Code of 1908. The learned Judge was inclined to the opinion that the questions in controversy should be specified before the order for discovery was made. Yet he ultimately directed the claimants to make an affidavit of documents and to produce them in Court for inspection within a specified period. In this Court, it has been argued on behalf of the claimants that an order for discovery cannot be made in a case under the Land Acquisition Act, and that, in any event, an order ought not to be made at the present stage of the proceedings. This position has been controverted on behalf of the Secretary of State, and it has been argued that an order for discovery can be claimed almost as a matter of right. We think, there is no substance in the contention of the claimants that an order for discovery cannot be made in a case under the Land Acquisition Act. Sec. 53 makes the provisions of the Civil Procedure Code, save in so far as they may be inconsistent with anything contained in the Act, applicable to all proceedings before the Court of the Land Acquisition Judge. As the learned Judges of the Allahabad High Court observed in the case of Kishan Chand v. Jogannath Prasad the comprehensive language of this section is not to be restrained, and a similar view has been indicated in Bhandi Singh v. Ramadhin Rai and Zmindars of Dhar v. Rama. In our opinion, there is no intelligible reason why the operation of Rule 12 of Order 11 of the Code of 1908 should be excluded from the cases under the Land Acquisition Act. The mere circumstance that an order of this description cannot be shown to have been made or found necessary in any previous case, is by no means conclusive. On the other hand, as is well-illustrated by the case of Lyell v. Kennedy(33), it may not be always safe to affirm that an order of this description has never been made before. The order of the Court below is, however, open to objection on the ground that it is premature, and is of the vaguest description. The points in controversy between the parties have not yet been specified and the learned Counsel for the Secretary of State has plainly stated that in his view some of the objections taken by the claimant to the award of the Collector are, on the face of them, absolutely unsustainable in law. Manifestly, if there are any objections which must fail on the ground that they cannot be entertained at all upon any conceivable principle of law, no discovery need be directed as regards them. It is well settled that in cases where the right of discovery in any form depends upon-the determination of any issue or question in dispute in the cause or matter, or it is desirable that some issue or question of law or fact or mixed question of law and fact in dispute should be determined first, the question of discovery may be reserved till after the issue or question has been determined. To take an illustration, if a mortgagor wishes to redeem an estate and it is denied that he has the right to redeem at all, discovery relating to questions of account will be postponed till it is known whether there is such a right or not: so also in an action by a principal against an agent when agency is denied, Whyte v. Ahrens, Burns v. Richardson, Tasmania Ry. Co. v. Clarke, Great Western Colliery Co. v. Tucker. In the case before us, the proper course to follow is to have the matters in controversy between the claimant and the Secretary of State specified and to have a determination upon the preliminary question which, if any, of these objections are manifestly not maintainable in law. After this has been decided and the learned Judge has got before him the questions to be investigated, he will deal with the application of the Secretary of State for discovery and pass such orders thereon, as he may deem essential in the interests of justice, for determination of matters relevant to the points in controversy. Dawning v. Falmoth Board(38), In re Wills Trademark(39), White v. Credit Reform(40), South Africa Republic v. Campagnie Insurance Belge(41) Marriott v. Chamberlain(42), Kent Coal Concession v. Dugad(43). If discovery is needed to enable the Secretary of State to test the legality of any of the objections of the claimant, the order may also be made for that purpose. The fourth question raised before us must consequently be answered partially against the Secretary of State.

At one stage of the argument, the contention was put forward that it was not competent to this Court to consider the legality of the order of the Court below; this objection, however, lost all force when both parties found it essential in their own respective interests, to assail the order. We may add, however, that this Court is not powerless to set maters right when an interlocutory order has been made without jurisdiction or under such circumstances as are likely to cause irreparable injury to one of the litigants. Gobind Mohun v. Kunja Behary, Amjad Ali v. Ali Hussain.

The result, therefore, is that the rules obtained by the Secretary of State must be discharged with costs. We assess the hearing fee in each of these rules at 10 gold mohurs. The rules obtained by the claimants will be made absolute and the order of the learned Judge made on the 30th June 1910 discharged. The costs in these rules will be costs in the proceedings in the Court below. We assess the hearing fee in these cases at 10 gold mohurs each. The matter will be remitted to the learned Judge so that he may take up the objections of the claimants and first determine which of these are sustainable in law. He will them make an order for discovery and give specific directions in that behalf as may be found necessary.

Claimants' rules made absolute.