This is an Appeal on behalf of the landlord, in a proceeding under the Land Acquisition Act, for apportionment of the compensation money awarded. The Respondent claims a part of the compensation as tenant of the land acquired. The Court below has found on the evidence that he is a purchaser of a non-transfer-able holding and that consequently the interest he claims to hold has no market value. In this view of the matter he would not be entitled to any portion of the compensation money. As a matter of fact, however, the Collector made an award in his favour and he managed to withdraw the money before the landlord could make an application for a reference under sec. 18 of the Land Acquisition Act. The Court below has held that as the money has already been paid out by the Collector, no reference was permissible under sec. 18, as the Judge had no jurisdiction to compel the Respondent to bring back into Court the money paid out to him. The substantial question in controversy in this Appeal is whether this view is well-founded on reason and principle.
It appears that on the 16th January, 1907 the Appellant presented a petition to the Collector in which he alleged that he was the talukdar of this land and was in possession thereof. The Respondent does not appear to have presented any petition to the Collector, at any rate, none is to be found on the present record. The Collector thereupon made an order, awarding a part of the compensation money to the Appellant and the remainder to the Respondent. On the 14th August, 1907, notice of this order was served upon the landlord as also upon the so-called tenant. On that very date, the latter made an application that the money might be paid out to him and on the next day an order was recorded by the Collector to the following effect: “Pay, if no objection”. The money was paid out to him on that very day. The land lord presented a similar petition on the 15th August, and the money was received by him under protest. On the 24th September, 1907, the landlord made an application under sec. 18 for a reference to the Civil Court. In this application he explicitly stated that the present Respondent had no interest in the land and no portion of the compensation money ought to have been awarded to him by the Collector: he also objected to the valuation. The question is, whether the fact that the money had been paid out was a bar to the reference, though it is clear upon the facts stated, that the money should not have been paid out to the Respondent.
Sec. 31(1) of the Land Acquisition Act provides that when an award has been made by the Collector under sec. 11 he shall tender the compensation awarded by him to the persons interested thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the following sub-section: sub-sec. (2) then provides, amongst other things, that if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount in the Court to which reference under sec. 18 will be submitted. In the present case, it is manifest on the face of the record that there was a dispute as to the title of the present Respondent to receive the compensation; or, to put it in another way, as to the apportionment of the total compensation between the landlord and the tenant. By an oversight, we may take it, on the part of the officers in the Collectorate, the money was paid out to the Respondent. Can it be suggested under these circumstances that the jurisdiction of the Court to entertain a reference under sec. 18 has been ousted? If this view were to prevail, the jurisdiction of the Court under sec. 18 might be ousted wherever one of the parties managed to obtain payment of the compensation money awarded by the Collector. But it has been contended that the Appellant is not without a remedy and that it is open to him to institute a suit in the Civil Court under the last proviso to sub-sec. 2 of sec. 31. Assuming, however, that the Appellant may have recourse to a suit, there is no reason why the jurisdiction of the Special Court provided by the Legislature for the adjudication of questions of apportionment should be ousted, merely because the Respondent has managed to receive payment of the compensation money. Such a result could never have been contemplated by the Legislature. In the events which have happened, the Court has clearly inherent power to recall the money improperly paid out, Mrinalini v. Abinash(1), Nabin Kali v. Banalata(2), and even the decision in Gobinda Ranee v. Brinda Ranee(3) would not tolerate recourse to a device deliberately taken to oust the jurisdiction of a Court. The view adopted by the learned Judge cannot consequently be supported.
The result is that this Appeal is allowed, and the order of the lower Court set aside. We direct the Respondent to bring back into Court the money which he has taken out from the Collectorate, together with interest thereon, at the rate of six per cent, per annum from the 24th September, 1907 (the date when the Appellant made an application under sec. 18) to the date when the money is deposited in Court. As soon as the money is deposited it will be paid out to the Appellant. If the Respondent does not deposit the amount within three months from this date, the Appellant will be entitled to recover the amount in execution of the decree of this Court. The Appellant is entitled to his costs of these proceedings both here and below. We assess the hearing-fee in this Court at five gold mohurs. The order of the Court below in so far as it relates to the costs of the Secretary of State for India in Council, will stand, but there will be no order for costs of the Secretary of State in this Appeal.
Appeal allowed.