The Judgment of the Court was delivered by
Sinha, J.:— In this application there are 25 petitioners. The facts are shortly as follows:
Premises Nos. 3, 4/1A, 4/1B and 4/1C Luxmi Narayanganj Gulee, Khidderpore, originally belonged to the Mahapatras. The Mahapatras mortgaged them to the Srinibash Banking Corporation Ltd. The mortgagees filed a suit, and went into possession. For arrears of income-tax due by the Mahapatras, the properties were sold in certain proceedings, and purchased by the Calcutta Properties Ltd. On or about the 27th September, 1957 proceedings were commenced under the Land Acquisition Act by the Land Acquisition Collector, Calcutta. Objections were received from parties interested, and so far as the petitioners are concerned, objections were received from them, except as to five; that is to say, 18 of the 25 petitioners filed objections. The objections were heard and the premises were also inspected by the Land Acquisition Collector and a report made under Sec. 5A of the Land Acquisition Act. Those objections were overruled, and the Collector was authorised under section 7 of the said Act to proceed with the acquisition. Thereafter, notices under secs. 9 and 10 of the said Act were served on parties, known or believed to be interested in the premises. This part of the proceedings commenced on the 27th September, 1957 and the subsequent order sheet is to be found as an annexure to the petition at pages 14 to 25. It appears from the order sheet that the matter was adjourned from time to time and the parties interested were called upon to file their title deeds and rent receipts. So far as the petitioners are concerned, it is not disputed that they did not file any title deeds, nor rent receipts. At least none appear in the records. On or about the 7th June, 1958 after completion of the enquiry an award was made. Before the award was finalised a draft award was made and notice given to the parties for settling it Most of the petitioners refused to accept the notice. Then a date for compensation was fixed and at this time one Hiralal filed an application under Article 226 being C.R No. 3635 of 1958 and further proceedings were stayed. Thereafter this application was taken out.
2. The application by Hiralal has already failed, the Rule having been discharged. So far as this application is concerned, the petitioners state that they are thika tenants and had built structures on the land, and yet in the award that has been made, they have been allowed removal charges only, but no other compensation. Although it is not stated in the petition or in the affidavits anywhere, it now appears that four of them, viz., Ganesh Chandra Nayak, Banchhanidhi Nayak, Banchhanidhi Boral and Purna Chandra Rakshit have already made applications for a reference under section 18 of the Land Acquisition Act, not a word of which is mentioned in the petition. The ground upon which this application is made is that in the course of the enquiry the petitioners put in objections, but they were never heard, and without hearing them the award has been made, and they have been deprived of legitimate compensation. It is argued that the award is not in accordance with section 11 of the Land Acquisition Act, and therefore is not an award at all, and under such circumstances the petitioners are entitled to come to this Court and ask for the issue of a Writ in the nature of Certiorari quashing the award and the subsequent proceedings.
3. The first point that is against the petitioners is the question as to whether an application by all these 25 persons in one petition lies. It appears that some of them have made applications for a reference under section 18 and others have not. Some of them again had preferred objections to the acquisition but others had not done so they are not jointly interested in any land or structure. There can be no doubt therefore that they have independent causes of action and I do not see how they can combine themselves and make one single application. This matter has been dealt with by Halsbury in his Laws of England, Vol. 11, 3rd Edition, page 83, Para 155 where it has been laid down that two persons cannot join in a single application for an order of Mandamus to enforce separate claims. There must be separate applications for separate orders. If however it is permissible for the petitioners to join in one application, then it seems there is another insuperable barrier to the success of this application, because, at least with regard to the four applicants who have made applications under section 18 of the Land Acquisition Act this application must fail in limine. They have chosen to avail themselves of an alternative remedy granted to them under the law. Consequently while that alternative remedy is being pursued, an application cannot lie in this Court for a high prerogative Writ. If therefore the case fails against four of the joint applicants, can it succeed with regard to the rest? This point was dealt with by a decision of the Andhra High Court in In re: Atmakuri Gopal Krishna Rao, (1) A.I.R (1957) Andhra 88. The learned Judge stated as follows:
“It is not open to him to join in this petition other person or persons affected by similar orders, for they too have remedies open to them and the quashing of one order does not necessarily render the other order null and void. The case however may be different where a common or class injury is done by some common order or orders. Even in cases where a joint application is thus permissible the principle laid down in American Jurisprudence, Vol. 35, page 81, paragraph 33 is that if it is found that even one of the applicants is disentitled to relief, the whole application must fail.”
4. I might mention here a rather curious fact which appears on the face of the pleadings. Although there are 25 petitioners, the petition is verified and signed by only Ganesh Nayak who, as stated above, has already made an application for a reference under section 18 of the Land Acquisition Act. None of the other parties are in the picture. Indeed, the affidavit in reply on behalf of the petitioners has been affirmed by one Rajaram Tiwari stated to be a brother of one of the petitioners. It is therefore questionable as to whether the other petitioners at all know of this application. Be that as it may, the application seems to be defective in form and if it fails in respect of four of the petitioners, as it must fail in the facts and circumstances stated above, I do not see how it can succeed with regard to the others.
5. Coming now to the merits of the case, it seems to me that even assuming that the application lies, the petitioners are faced with many obstacles. After the making of the award, if the petitioners were aggrieved by it, they have a remedy laid down by the Land Acquisition Act, and that is to be found in section 18. Sub-section (1) of section 18 lays down that a person interested, who has not accepted the award, may by written application require that the matter be referred for determination by a Court. Actually four of the petitioners, including Ganesh Nayak who appears to be the most active of them, have already made applications for a reference which are pending. The question is as to why the same principle should not apply to all the petitioners and why, if they are aggrieved by the award, they should not avail themselves of the remedy laid down by section 18 of the said Act. Mr. Haldar on behalf of the petitioners states that in making the award the learned Collector did not observe the rules of natural justice and therefore it must he said that he did not observe the rules laid down in section 11 and consequently an application under Article 226 lies. He has cited two cases. The first is a decision of a Division Bench of the Patna High Court, Pannalal Maheswari v. State of Bihar, (2) A.I.R (1955) Pat. 63. The facts of that case were as follows: The petitioner claimed to be a tenant in respect of certain raiyati lands in village Khajurahi in Bihar. Government initiated land acquisition proceedings in respect of the said lands, including the interests of the petitioner. Thereupon, the Land Acquisition Officer made an inspection and made a certain report. The petitioner alleged that this report was an award and inspite of the award, Government was refusing to pay him compensation. Government took up the attitude that this was merely a preliminary report for assessing the cost which Government might be called upon to pay for the acquisition, and that there was no award in pursuance whereof compensation could be given. It was held that the report was not an award, but merely a preliminary assessment of the cost that Government would have to incur in respect of the acquisition, and therefore it could not be treated as an award under which compensation could be paid. It was further held that the Land Acquisition Authorities could not hold up the acquisition proceedings unreasonably and desist from making an award, and that the Collector was under a statutory duty to make an enquiry into the valuation of the land and into the respective interests of persons claiming compensation and to make an award in respect of the matters mentioned in section 11. If the Collector fails to do so, the Court can interfere by the issue of a Writ under Article 226 of the Constitution.
6. The second case that was cited is a decision of mine, Rabindra Kumar Basu v. S.K Banerjee, (3) 63 C.W.N 851. In that case, several persons were interested in the compensation money. Instead of apportioning the same, the Land Acquisition Col lector directed that the money was to be paid jointly. I held that this was not compliance with section 11 of the Act, and that the Collector was bound to do all the matters that were mentioned in section 11 and apportion the compensation money between the joint owners or parties jointly interested.
7. In my opinion, neither of these cases apply to the facts and circumstances that we are now considering. In the Patna case mentioned above, the Collector was failing to make an award at all, and in the Calcutta case an award was made but without carrying out the duties laid down in section 11 of the Land Acquisition. Act. Under such circumstances, this Court could intervene under Article 226. The facts of this case are completely different. Here, several persons, including the petitioners, were interested in the apportionment of compensation. According to the petitioners, they had interest as thika tenants who had built structures. Instead of getting full compensation, they were only allowed removal charges. Therefore, there was no question of refusing to make an award. There was an apportionment but it may be that the apportionment was wrongly made. It may be that the compensation allowed to the parties interested is erroneous.
8. In such a case, however, the proper remedy is not to rush to this Court but to take the remedy that is offered by the Land Acquisition Act itself. The petitioners had a clear remedy under section 18, and indeed, some of them have already availed of it. Mr. Haldar argues that since there has been a violation of the rules of natural justice, an application in this jurisdiction lies. Again, whether there has been a violation of the rules of natural justice or not, it is not clear at all from the materials before me. It appears from the order sheet that the parties were asked to produce their title deeds and rent receipts, but none were produced. Mr. Haldar says now that his clients, or at least some of them, intended to produce the rent receipts on the date of hearing. This seems to me to be a very unsatisfactory answer. An enquiry under the Land Acquisition Act is not like a trial in Court. The Land Acquisition Collector has got to make enquiries and even if he is not assisted by the parties, he has to do it suo motu. There can therefore be no excuse for not filing the necessary papers before him. So far as title is concerned, the titles of the petitioners have been seriously contested. It has been pointed out that save and except four or five of the petitioners, the others never figured in the Rent Roll of the Bank or its Receiver. In the application by Hiralal, which was dismissed, it was found that his title was seriously disputed and that he was stated to be only an employee of the Mahapatras and not a tenant at all. It is stated in the order sheet that even the draft award would not be received by most of the petitioners. This of course is now denied, and I do not see how this can be determined except upon evidence. I do not see therefore why this Court should go into such questions, which are primarily questions of fact, when there is a clear alternative remedy available, in which, evidence can be taken, and a complete adjudication can be made of the points advanced.
9. For these reasons, I do not think that I am in a position to interfere in this case and in my opinion, this application must fail and must be dismissed. The Rule is discharged. Interim order, if any, is vacated. There will be no order as to costs.
10. Let the operation of this order remain in abeyance for three weeks from to-day to enable the petitioners to prefer an appeal, as prayed for.
C.R.D