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Concise Analytical Summary of the Opinion

Factual and Procedural Background

This Rule was issued challenging an order of the First Land Acquisition Collector dated 1 September 1933, which rejected the petitioner's application for a reference to the Calcutta Improvement Trust Tribunal under section 18 of the Land Acquisition Act. The reference was sought in relation to the petitioner’s objection to the amount of an award made by the Land Acquisition Collector under section 11 of the Act. The Collector rejected the application on the ground that it was not made within the time allowed by law. A preliminary jurisdictional objection was raised that the High Court had no power of revision under section 115 of the Code of Civil Procedure or section 107 of the Government of India Act. The matter proceeded for consideration of both the preliminary jurisdictional point and the merits (particularly the question of limitation).

Legal Issues Presented

  1. Whether this Court has jurisdiction to exercise revision in respect of an order of the Land Acquisition Collector refusing to refer a case under section 18 of the Land Acquisition Act (in particular whether the Collector is a "court" within the meaning of section 115 of the Civil Procedure Code or section 107 of the Government of India Act).
  2. Whether the petitioner's application for reference was time-barred under section 18 of the Land Acquisition Act — specifically, whether the petitioner was present or represented before the Collector when the award was "made," thus bringing the six-week limitation under section 18(2)(a) or section 18(2)(c) into operation, or whether other limitation periods applied (six weeks from notice under section 12(2) or six months from the award).

Arguments of the Parties

Petitioner's Arguments

  • The petitioner relied on prior decisions of this Court (cited as Administrator-General of Bengal v. Land Acquisition Collector and Krishna Das Roy v. Land Acquisition Collector of Pabna) that the Court is entitled to revise an order of the Land Acquisition Collector refusing to refer a case under section 18 of the Act; these decisions had not been overruled.
  • The petitioner argued that, because she had received no notice under section 12(2), the six-month limitation (from the date of the award) would apply, and her application dated 31 August 1933 was therefore within time.

Collector's / Respondent's Arguments

  • The Collector contended that the petitioner's application was out of time and that she was present when the award was effectively made because she participated in the discussions that culminated in the award and knew the terms proposed.
  • In the Collector's show-cause response he argued that an award is "made" when the Collector and parties settle what the award is to be, even though the formal drawing up and signing of the award might take several days; recalling parties just to sign a previously settled award would be impractical.
  • The Collector asserted that even if the petitioner herself was not physically present on the date the award was drawn up and signed, she had been represented: under directions of this Court a receiver had been appointed who accepted the award on behalf of the claimants, and thus the representation rendered her reference subject to the shorter limitation period.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
British India Steam Navigation Co. v. Secretary of State for India Cited as authority supporting the view that the Land Acquisition Collector is not a "court" within the meaning of section 115 CPC / section 107 of the Government of India Act. The Court treated this as part of "abundant authority" for the proposition that the Collector cannot be said to be a court under those provisions.
Ezra v. Secretary of State for India Cited similarly in support of the Collector not being a "court" for the purposes of section 115 CPC / section 107 Government of India Act. Used as authority among others to show that the Collector is not a court within the cited statutory meanings.
Abdul Sattar Sahib v. The Special Deputy Collector, Vizagapatam Harbour Acquisition Another authority referred to support the non-court status of the Collector for revision jurisdiction purposes. Relied upon as part of the body of authority indicating the Collector is not a court under section 115 CPC / section 107 Government of India Act.
Balkrishna Daji Gupte v. Collector, Bombay Suburban Cited as authority to the same effect (Collector not being a "court"). Included among the precedents supporting the proposition that the Collector is not a court for section 115 CPC / section 107 Government of India Act purposes.
M.H. Mayet v. Land Acquisition Collector, Myingyan Also cited in support of the view that the Collector is not a "court" for purposes of revision by the High Court under the cited provisions. Counted among authorities indicating limited scope for revision of Collector's orders under those procedural provisions.
H.D. Chatterjee v. L.B. Tribedi (under the Rent Act) Cited as an example where orders of a Rent Controller were held subject to revision by the High Court; advanced by respondents/petitioner as analogous authority. Referred to in argument by both sides as a comparative authority on revision of subordinate authority orders; the Court notes the analogy but relies primarily on land-acquisition specific authorities and prior rulings of this Court.
Allen Bros. & Co. v. Bando & Co. (under the Rent Act) Cited similarly as an instance where subordinate adjudicatory orders were found amenable to revision. Noted as an analogous precedent cited in arguments regarding revision, but not treated as overruling the distinction that the Collector is not a "court" under section 115 CPC.
Administrator-General of Bengal v. Land Acquisition Collector Cited for the proposition that this Court is entitled to revise an order of the Land Acquisition Collector refusing to refer a case under section 18 of the Land Acquisition Act. The Court relied on this earlier ruling and, because it had not been overruled, did not decide against the petitioner on the preliminary jurisdictional point.
Krishna Das Roy v. The Land Acquisition Collector of Pabna Cited for the same proposition that the Court may revise a Collector's refusal to refer under section 18. Used, together with Administrator-General, to justify the Court's refusal to dismiss the petition on the preliminary jurisdiction point.
Saraswati Pattach v. Land Acquisition Deputy Collector of Champaran Referenced by the petitioner as supportive of the proposition that judicial control is available against certain actions of Land Acquisition authorities. Referred to as supporting authority cited by the petitioner; the Court noted the reliance but its principal reliance was on the two named precedents above.
Secretary of State for India v. Jiwan Bakhsh Cited by the petitioner among authorities relevant to revision/control over acquisition proceedings. Identified as one of several authorities the petitioner invoked in support of the contention that revision is available; the opinion records the citation but places determinative weight on the two earlier Court rulings cited above.
Hari Das Pal v. The Municipal Board, Lucknow Cited by the petitioner in support of the availability of judicial remedies in related administrative contexts. Noted as part of the petitioner's assortment of authorities; the opinion records the citation but does not treat it as dispositive of the preliminary jurisdictional question.

Court's Reasoning and Analysis

The Court proceeded in two main stages: (A) the jurisdictional preliminary point, and (B) the merits question of limitation.

A. Jurisdictional (preliminary) analysis

- The Court acknowledged the general rule that the High Court has no powers of revision under section 115 CPC or section 107 Government of India Act unless the decision is that of a court subordinate to the High Court. It also noted that orders of a Collector may indirectly come before the High Court by virtue of a reference made to a civil court under section 18.

- The Court recorded that there is "abundant authority" for the proposition that the Collector is not a "court" within the meaning of section 115 CPC or section 107 Government of India Act (and cited multiple authorities to that effect).

- However, the Court observed that earlier decisions of this Court (Administrator-General of Bengal v. Land Acquisition Collector and Krishna Das Roy v. Land Acquisition Collector of Pabna) had held that the Court is entitled to revise an order of the Land Acquisition Collector refusing to refer a case under section 18. Those decisions had not been overruled.

- Given those prior rulings, the Court declined to decide the preliminary point against the petitioner and proceeded to consider the merits.

B. Merits — analysis of limitation and presence/representation

- The Court framed the controlling question as whether the petitioner was present or represented before the Collector when the award was "made." The applicable limitation differs depending on that factual/legal status:

  • If the petitioner was present when the award was made, section 18(2)(a) imposes a six-week bar from the date of the award.
  • If the petitioner was not present or represented, she could apply within six weeks of receipt of notice under section 12(2), or within six months from the date of the Collector's award, whichever period first expires.

- The award in this case was formally drawn up and signed on 30 March 1933. The petitioner provided affidavits showing she herself was not present on that date. On that ground the Collector's rationale that the award was effectively "made" earlier because the terms were settled in discussions was rejected, because section 11 required the award to be "under his hand" and to contain particulars of apportionment; therefore the award cannot be said to have been made until it was drawn up and signed.

- However, the Court accepted the Collector's alternate contention that the petitioner was represented before the Collector. The Court reviewed the terms of the appointment of a receiver made under the direction of this Court: the receiver had been directed to accept the award on behalf of the claimants and, when he appeared before the Collector on 30 March and accepted the award, he was representing the petitioner's interests under the orders of this Court.

- The Court read the petition for appointment and the terms of appointment together and concluded that the receiver was entitled to represent the claimants before the Land Acquisition Collector, subject only to a reservation that his appointment did not prejudice the parties' contentions that the amount of the offer was too low. That reservation preserved their substantive right to challenge the amount, but did not negate that they had representation before the Collector.

- Because the claimants were represented before the Collector when the award was drawn up and signed on 30 March, section 18(2)(c) applied and the six-week limitation period from the date of the award became applicable. The petitioner had notice of the receiver's appointment and did not exercise her right to make a reference within six weeks of 30 March. Consequently, her claim to make a reference was time-barred.

Holding and Implications

Holding: Rule discharged.

Implications:

  • The immediate effect is that the petitioner's application for a reference under section 18 of the Land Acquisition Act (filed 31 August 1933) was held to be out of time and the Rule challenging the Collector's refusal was discharged.
  • The Court did not overrule earlier decisions relied upon by either side; it relied on prior rulings (Administrator-General of Bengal and Krishna Das Roy) to proceed with consideration of the merits rather than dismiss on the preliminary jurisdictional point. The opinion does not purport to lay down a new, broader precedent beyond the application of existing authorities and the statutory interpretation applied in this case.

Order pronounced: "Rule discharged." (G.S.)

    Leah Elies Joseph Solomon v. H.C Stork

    Jack and Khundkar, JJ.:— This Rule has been issued on the learned First Land Acquisition Collector in connection with his order, dated 1st September, 1933, rejecting the petitioner's application requiring a reference to the Calcutta Improvement Trust Tribunal under section 18, of the Land Acquisition Act for decision of her objection to the amount of an award made by the Land Acquisition Collector under the provisions of section 11 of the Act. The application was rejected on the ground that it was not within the time allowed by law.

    A preliminary point was raised that this Court has no jurisdiction in revision either under section 115 of the Code of Civil Procedure or under section 107 of the Government of India Act.

    The High Court has no powers of revision unless the case is decided by a court subordinate to the High Court, viz., subject to the appellate jurisdiction of the, High Court. It is true that a decision of the Collector as to the amount of an award may indirectly come before the High Court in its appellate jurisdiction, where a reference has been made to the civil court under section 18 of the Land Acquisition Act, and it is argued that on this ground the orders of the Collector are subject to revision just as the orders of the Rent Controller under the Calcutta Rent Act have been held to be subject to revision by the High Court in the cases of H.D Chatterjee… v. L.B Tribedi…Opposite Party. and Allen Bros. & Co. v. Bando & Co. . The fact remains, however, that the Collector cannot be said to be a court within the meaning of section 115 of the Civil Procedure Code or of section 107 of the Government or India Act. There is abundant authority for this view. Reference may be made to the cases of British India Steam Navigation Co. v. Secretary of State for India , Ezra v. Secretary of State for India Ezra v. Secretary of State (3), Abdul Sattar Sahib v. The Special Deputy Collector, Vizagapatam Harbour Acquisition (4), Balkrishna Daji Gupte v. Collector, Bombay Suburban (5), M.H Mayet v. Land Acquisition Collector, Myingyan (6).

    The petitioner, on the other hand, relies on the cases of this Court, in which it has been held that this Court is entitled to revise an order of the Land Acquisition Collector refusing to refer a case to the civil court under section 18 of the Act, viz., Administrator-General of Bengal v. Land Acquisition Collector, 24-Pergs. (7), Krishna Das Roy v. The Land Acquisition Collector of Pabna (8). These decisions have not been overruled and the petitioner supports them by reference to the decisions in Saraswati Pattach v. Land Acquisition Deputy Collector of Champaran (9), Secretary of State for India v. Jiwan Bakhsh (10), Hari Das Pal v. The Municipal Board, Lucknow (11), and to the cases under the Rent Act H.D Chatterjee… v. L.B Tribedi…Opposite Party. (12), and Allen Bros. & Co. v. Bando & Co. (13).

    There can be no question that the act of the Collector in refusing to make a reference under section 18 of the Land Acquisition Act is a judicial act. The petition for a reference corresponds to the plaint in a suit. It initiates judicial proceedings in the Land Acquisition Court, which, by virtue of section 54 of the Land. Acquisition Act, is a court subordinate to the High. Court, and the petition for reference is practically a part of those proceedings. Though, therefore, technically section 115 of the Civil Procedure Code may not be applicable, it was hardly the intention of the legislature that there should be no remedy against the wrongful rejection of an application for reference. It may be noted in this connection that no relief under section 45 of the Specific Relief Act could be obtained outside the jurisdiction of the Chartered High Courts. In these circumstances and in view of the previous rulings of this Court [Administrator-General of Bengal v. Land Acquisition Collector, 24-Pergs. and Krishna Das Roy v. The Land Acquisition Collector of Pabna ], we will not decide against the petitioner on the preliminary point.

    As regards the merits:—

    The question of limitation turns upon the point, whether the applicant was present or represented before the Collector when the award was made. If she was so present, her application was barred by time, for the award was made in March, 1933, and her application was not made until the 31st of August 1933, whereas under section 18, clause (2)(a), the application must be made within six weeks. If, on the other hand, she was not present or represented, the application may be made within six weeks of the receipt of notice from the Collector under section 12(2), or within six months from the date of the Collector's award, whichever period shall first expire. As in this case, the applicant received no notice under section 12(2), she would have time up to six months and was within time on the 31st of August. In dismissing her application the learned Land Acquisition Collector says that she was present when the award was made, because she was there throughout the discussions, which culminated in the awardshe knew fully the terms proposed, in fact “the delay in making out the award, as finally proposed and accepted by the other parties was entirely due to her unwillingness to join the otherwise general agreement.” This is not quite accurate, since another party, was also objecting to the proposed terms.

    In showing cause under the Rule, the learned Land Acquisition Collector says that the fact that the petitioner was not present on the 30th of March does not alter the position. She was present when it was finally determined that the award would be for Rs. 4,10,000. He considers that the award is “made” when it is settled what the award is to be; after that it takes several days to draw up the actual award so determined—“a long and complicated document requiring great care and intricate calculation in this case”—and adds “in practice it would be absurd as well and a great inconvenience to the parties, if they were again recalled when the Collector only signs his name to an award already determined, merely in order to clarify an imaginary intention of section 18(2)(a).”

    The learned Collector appears to have overlooked the terms of section 11 of the Act directing that an award shall be made “under his hand” and contain particulars of apportionment amongst those interested as well as the total compensation. It follows that the award cannot be said to be made until it is so drawn up and signed. In the present case this took place on the 30th March and the affidavits show that the petitioner was not herself present on that date. The learned Land Acquisition Collector was, therefore, not entitled to reject her application as barred under section 18(2)(a) by six weeks' limitation on the ground that she was so present. However, his order can be supported on the ground that, though she was not present she was represented and so comes within the terms of section 18(2)(a), for, under the orders of this Court, she was represented by a receiver of the estate, a portion of which is the property in question: Under the direction of this Court the receiver was to accept the award on behalf of the claimants and there is no doubt that, when he appeared before the Collector on the 30th March and accepted the award, he was in representing them under the orders of this Court. This would not take away the petitioner's right to make a reference specially as the appointment of the receiver was “without prejudice to the contentions of the parties concerned.”

    Reading the petition for appointment of the receiver together with the terms of the appointment and the directions given to him, it is clear that he was entitled to represent the claimants before the Land Acquisition Collector with the reservation only that his appointment would not prejudice their contention that the amount of the offer was too low. The effect of this would be that they were entitled to make a reference against the award under section 18 of the Act, but, inasmuch as they were represented before the Collector, section 18, clause (2)(c) would apply, and the period of limitation would be six weeks from the date of the award, viz., six weeks from the 30th of March. Under Order XL, rule 1, this Court was entitled to so appoint a receiver and give him such powers. There was no appeal against the order appointing him and it must be taken that the petitioner, who had notice of his appointment accepted his representation of her before the Collector, and, as she did not take advantage of her right to make a reference within 6 weeks, her claim to do so was barred and her application on 31st of August out of time.

    The Rule is accordingly discharged.

    Rule discharged.
    G.S

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    Leah Elies Joseph Solomon v. H.C Stork
    (May 28, 1934)