The Judgment of the Court was as follows:—
The proceedings before the Collector in this matter were marked with the greatest irregularity. The declaration under sec. 6 of Act I of 1894 it dated the 30th July 1904 and it was for the acquisition of 9 bighas 10 cottas and odd chittacks, more or less, of land within defined boundaries and not of the interest of any particular person of persons in occupation of it. A plan of the land had been before the declaration. The Collector was bound to cause a public notice to be given under sec. 9, sub-sec. (1) of the Act, Inviting claimants to compensations for all interests in the land, and under sub-sec. (2) such notice should be published not earlier than 15 days before the date fixed for the persons interested to appear and claim compensation. The notice in the present case was not published before the 26th August 1904, though the first day fixed for the hearing of claims was the 8th September. The notice on the Administrator-General of Bengal was served on the 9th September, the date for presenting claims being the 16th September. The notice again was not such as is prescribed by sub-sec. (2) of sec. 9. It did not require the Administrator-General to state the nature of his interest in the land to be acquired and the amount and particulars of his claim to compensation but it expressly stated that the price of two of the plots had already been given and no further compensation was payable. The notices issued under sec. 9 were dearly bad and were not served in due time. On the 28th September 1904 the Collector made his award under sec. 11 of the Act. The Administrator-General was unrepresented on that day. But the award was not in accordance with the requirements of sec. 11. It contained no statement of the compensation which in the opinion of the Collector should be allowed for the land and there was no proper apportionment of such compensation. The case made for the Collector is that the Government had already acquired the right which the Administrator-General had in the entire land. The Administrator-General denies it. The proper award to make under sec. 11 would have been one which would contain a statement of the compensation for the lands and if the Administrator-General's interest had passed to the Government the amount payable, in the opinion of the Collector to the Administrator-General on apportionment, should have been stated as payable to the Government. No notice of the award as required by sec. 12, sub-sec. (2) was given to the Administrator-General. The Administrator-General came subsequently to know of it on enquiry by him, i.e, on the 11th October 1904.
Though the award was made on the 26th September and according to the contention before us the Collector's administrative functions under Part II of the Act, except as to taking of possession, ceased on that date, the Collector on the 11th October on the representation of the Administrator-General allowed time up to the 1st November following to file his statement of claim. The Collector had taken possession on the previous day. It is inconceivable how if his administrative functions had ceased the Collector could on the 11th October allow time up to the 1st November to file a statement of claim, having already made and filed his award under secs. 11 and 12 of the Act. The statement of claim was actually filed on the 1st, November, it was duly received and the 17th November was fixed for hearing. The matter was heard by the Collector on the 17th November bub no order was made until the 1st; December following when the Collector endorsed on the back of the petition of the 1st November his order apparently in the absence of the Administrator-General to the effect that the latter was not entitled to any compensation, his rights having already been acquired by the Government. The petition was rejected not on the ground of the absence of power of the Collector to re-open the proceedings, but on the merits of the Administrator-General's claim, the Collector coming to the finding that the land had already been acquired by the Government. The Administrator-General received notice of this order on the 14th December by the Collector's letter of that date. It is quite clear from the proceedings that the Collector did not think his award of the 26th September to be final. It had the character of finality on the 1st December when the Administrator General's claim for compensation was refused on adjudication on the merits of his claim. It is also quite clear that there were grounds of dispute as to apportionment between the Government and the Administrator-General which might legitimately be the subject of adjudication by the Court under Part III of the Act.
Under sec. 18 of the Land Acquisition Act any person interested may require that the matters covered by the award be referred by the Collector for the determination of the Court provided that the application is made, if the person was present or represented before the Collector at the time when be made the award, within 6 weeks from the date of the Collector's award, or in other cases, within 6 weeks of the receipt of the notice under sec. 12, sub-sec. (2) or within 6 months from the date of the Collector's award, whichever period shall first expire.
No notice as required by sec. 12, cl. 2 of the Act in cases where the persons interested are not present personally or by their representatives when the award is made, was, as we have seen, served upon the Administrator-General.
On the 23rd February 1905, the Petitioner applied under sec. 18 (1) for a reference to the Civil Court but the Collector by his order of the same date refused to refer the matter on the ground that the application had been made more than 6 weeks after the date of the communication of the order of the 26th September to the Petitioner. Upon that a rule was issued to the Collector to show cause why the order of the 23rd February should not be se aside.
If the period allowed by the proviso to sec. 18 of the Act for presenting a petition for reference to the Court be calculated either from the 26th September or the 14th December allowing 6 months in the first case and 6 weeks in the second case, the application for reference was in time. Besides the delay, if any, in applying for ss reference was entirely due to the irregular mode in which the Collector conducted his proceedings.
But it seems to us that the Collector having allowed his award of the 26th September to be re-opened, an award made in his administrative capacity, and notice of his final order having been given on the 14th December by a letter which should be taken to be a notice under sec. 12 of the Act, the Administrator-General was entitled to 6 weeks' time from the latter date to file his application for reference.
Assuming, however, that the Collector's proceedings after the filing of the award on the 25th September were not warranted by the law, and that he was incompetent to re-open his original award, the Administrator General could make his application for reference with 6 months of the date of the original award. In either view of the case the Collector was bound, as enjoined by sec. 18, to initiate the judicial proceedings contemplated by Part III of the Act.
The next question which arises is whether this Court has jurisdiction under sec. 622 of the Code of Civil Procedure or sec. 15 of 24 and 25 Victoria, C. 104 to interfere.
It it admitted that up to and including the time of making his award the Collector was in no sense a judicial officer and that the proceedings before him were not judicial proceedings [Ezra v. Secretary of State] and however irregular his proceedings were, we cannot interfere with his award made under sec. 11 of the Act.
But when an application is made to the Land Acquisition Collector the Collector requiring him to refer the matter to the Civil Court, the Collector may have to determine and, it seems to us, determine judicially whether the person making the application was represented or not when the award was made, or whether a notice had been served upon the applicant under sec. 12(2) and what period of limitation applies and whether the application is under the circumstances made within time. The Collector's functions under Part III of the Act are clearly distinguishable from those under Part II. Part III of the Act relates to proceedings in Court. In our opinion the Collector in rejecting the application was a Court and acting judicially and his order is subject to revision by this Court. To hold otherwise would be to give finality to an award under sec. 11 even in cases in which the Collector acts Irregularly and contrary to law and then refuses on insufficient grounds to make a reference under Part III of the Act. The party aggrieved may be left without remedy which is implied by a judicial trial before the Judge.
An attempt was made before us to show that the entire piece of land now acquired had already been acquired under a previous declaration by the local Government and the Administrator-General had received his share of the compensation. This however is a matter to be decided by the Judge, on a reference and we cannot express any opinion on it.
We, therefore, make the rule absolute and set aside the Collector's order of the 23rd February 1905 and direct him to proceed according to law. The opposite party must pay the Petitioner's costs which we assess at 5 gold mohura.
N.G
Rule made absolute.