TMI Blog2003 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as would set out briefly the history of litigation, may be noticed. According to the appellant, the said land was Gairmajrua Malik land. It was a part of zamindari estate. Before vesting of zamindari, the land was settled by the ex-landlord in the name of one Deo Narain Prasad by means of a registered deed of settlement dated 24.04.1954. It was a raiyati settlement. The appellant purchased the land from the said Deo Narain Prasad through a registered deed of sale dated 07.09.1962. The appellant has developed the land and kept it under cultivation raising the crops. Her name was mutated in the revenue records by the Circle Officer. A correction slip was issued to her in her name. The State realized revenue from her from the very date of vesting, i.e. from 1955 till 1975. The rent receipts were exhibited on record. On 18.05.1979, the Circle Officer issued a notice u/s 3 of the Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956) calling upon the appellant to explain why she should not be treated as an encroacher on the land and why her encroachment should not be removed. The notice was issued on the premise that consequent upon vesting of zamindaris, the said land ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ petition in the High Court registered as CWJC No. 147 of 1985 (R). By order dated 13.02.1985, the High Court after hearing the learned counsel for the State, directed the Writ Petition to be allowed. A mandamus was issued to the Collector to prepare the award in the name of the appellant. The High Court went on to observe if there be any dispute thereafter, the matter be referred to the Civil Court under Sections 18 and 30 of the Land Acquisition Act for adjudication of any claim in accordance with law. The order dated 07.01.1985 passed by Additional Collector, Lohardaga was directed to be quashed. On 19.02.1986, the Collector (Land Acquisition) prepared an award in the name of Smt. Sharda Devi directing the amount of compensation as determined by him to be paid to Smt. Sharda Devi, the appellant. On 06.06.1986, much after the expiry of six weeks the time appointed for seeking a reference to the Civil Court u/s 18 of the Act, the Circle Officer, Kuru filed an application before the Collector seeking a reference to the Civil Court. It was stated in the application that a dispute existed in between the Circle Officer, Kuru Anchal (on behalf of the State of Bihar) and Smt. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the observations made by the Full Bench. Feeling aggrieved by the order of remand, the appellant has preferred this appeal by special leave under Article 136 of the Constitution of India. The sole question which arises for decision in this appeal centers around the question referred to herein above, i.e., whether in the facts and circumstances of the case a reference u/s 30 of the Act was competent ? In other words, the core question is when the State proceeds to acquire land on an assumption that it belongs to a particular person, can the award be called into question by the State seeking a reference u/s 30 of the Act on the premise that the land did not belong to the person from whom it was purportedly acquired and was a land owned by the State having vested in it, consequent upon abolition of proprietory rights, much before acquisition ? In order to appreciate the controversy, we will briefly examine the scheme of the Land Acquisition Act, 1894, also extracting and reproducing some of the statutory provisions as may be required. 'Person interested' is defined by clause (b) of Sec. 3 as under :- the expression 'person interested' includes all perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ively appeared before him. Section 12 attaches finality to the award making it a conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not on three points: (i) the true area of the land, (ii) the value of the land, and (iii) the apportionment of the compensation amount among the persons interested. The Collector may, after making the award u/s 11, take possession of the land. On such taking possession, the acquired land shall vest absolutely in the Government, free from all encumbrances. Part III of the Act deals with reference to Court and procedure thereupon. Disputes as to apportionment of compensation are dealt with in Part IV. Part III consists of Sections 18 to 28. Section 18 provides as under :- 18. Reference to Court. (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tender payment of the compensation to the persons interested in accordance with the award. The Collector is obliged to withhold distribution of the awarded amount to the awardee or amongst the awardees and deposit the amount of compensation in the reference court in three situations:- (i) if awardees do not consent to receive the amount of compensation, (ii) if there be no person competent to alienate the lands, or (iii) if there be any dispute as to the title to receive the compensation or as to the apportionment of it. The two provisions contemplating power of the Collector to make reference as contained in Section 18 and Section 30 of the Act need a comparative study. Under Section 18 the subject-matter of reference can be a dispute as to any one or more of the following: (i) as to the measurement of the land, (ii) as to the amount or the quantum of the compensation, (iii) as to the persons to whom the compensation is payable, (iv) as to the apportionment of the compensation among the persons interested. Under Section 30 the subject matter of dispute can be: (i) the apportionment of the amount of compensation or any part thereof, (ii) the persons to whom the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified for acquisition; the person interested is not bound to accept it and the Government can also withdraw the acquisition u/s 48. It is only when possession of the land has been taken by the Government u/s 16 that the right of the owner of the land is extinguished. Therefore the appellant's contention that title to compensation is derived solely from and on the date of the award could not be accepted. (iv) The liability of the Government u/s 31 to pay compensation to the person entitled thereto under the award does not imply that only the persons to whom compensation is directed to be paid under the award may raise a dispute u/s 30. The scheme of apportionment by the Collector under Section 11 is conclusive only between the Collector and the persons interested and not among the persons interested. Payment of compensation u/s 31 to the persons declared in the award to be entitled thereto discharges the State of its liability to pay compensation leaving it open to the claimant to compensation to agitate his right in a reference u/s 30 or by a separate suit. (v) Under the Bihar Land Reforms Act the title of the appellant to the land noticed for acquisition became v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the persons to whom the amount of compensation or any part thereof is payable. A dispute as to the measurement of the land or as to the quantum of compensation or a dispute of a nature not falling within Section 30, can neither be referred by the Collector under Section 30 of the Act nor would the Civil Court acquire jurisdiction to enter into and determine the same. By reference to nature of power Under Section 18 of the Act the Collector does not have power to withhold the reference. Once a written application has been made satisfying the requirements of Section 18, the Collector shall make a reference. The Collector has no discretion in the matter; whether the dispute has any merit or not is to be left for the determination of the Court. Under Section 30 the Collector may refer such dispute to the decision of the Court. The Collector has discretion in the matter. Looking to the nature of the dispute raised, the person who is raising the dispute, the delay in inviting the attention of the Court, and so on are such illustrative factors which may enter into the consideration by the Collector while exercising the discretion. If the Collector makes the reference it may be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Section 29, which speaks of 'persons interested'. Finality to the award spoken of by Section 12(1) of the Act is between the Collector on one hand and the 'persons interested' on the other hand and attaches to the issues relating to (i) the true area, i.e. measurement of the land, (ii) the value of the land, i.e. the quantum of compensation, and (iii) apportionment of the compensation among the 'persons interested'. The 'persons interested' would be bound by the award without regard to the fact whether they have respectively appeared before the Collector or not. The finality to the award spoken of by Section 29 is as between the 'persons interested' inter se and is confined to the issue as to the correctness of the apportionment. Section 30 is not confined in its operation only to 'persons interested'. It would, therefore, be available for being invoked by the 'persons interested' if they were neither present nor represented in proceedings before the Collector, nor were served with notice u/s 12(2) of the Act or when they claim on the basis of a title coming into existence post award. The definition of 'person interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein the ownership or the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act. The position of law is so clear as does not stand in need of any authority to support. Still a few decided cases in point may be referred since available. In Collector of Bombay v. Nusurwanji Rattanji Mistri Others (supra) this Court held that when the Government acquires lands under the provisions of the Land Acquisition Act, it must be for a public purpose, and with a view to put them to that purpose, the Government acquires the sum total of all private interests subsisting in them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding thereof so that it might be in a position to pass it on absolutely for public user. An interesting argument was advanced before the Supreme Court. It was submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation into the nature and value of that interest is necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition. In land acquisition proceedings there is no value of the right of the Government to levy assessment on the lands and there is no award of compensation therefor. It was, therefore, held by a Division Bench of Judicial Commissioners in Mohammad Wajeeh Mirza Vs. Secretary of State for India in Council AIR 1921 Oudh 31 that the question of title arising between the Government and another claimant cannot be settled by the judge in a reference under Section 18 of the Act. When the Government itself claims to be owner of the land there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. In our opinion the statement of law so made by the learned judicial commissioners is correct. The Collector acts as a representative of the State whilst holding proceedings under the Land Acquisition Act. In fact, he conducts the proceedings on behalf of the State. The award of the Collector is not the source of the right to compensation; i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. The Privy Council decision above-said was followed and the statement of law made therein approved by this Court in Kothamasu Kanakarathamma and Ors. Vs. State of Andhra Pradesh and Ors. AIR 1965 SC 304. This Court held that under the Land Acquisition Act the matter goes to the Court only upon a reference made by the Collector and there is no doubt that the jurisdiction of the Court arises solely on the basis of a reference made to it. The Court can adjudicate upon the matter referred to it but the Court is certainly not invested with the jurisdiction to consider a matter not directly connected with it and this is not a matter of mere technicality. A case of lack of inherent jurisdiction will not be cured by mere failure to object to the proceedings before the Court on the ground of an absence of reference on matters not referred. There can be no waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence. To sum up the State is not a 'person interested' as defined in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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