P L D 1969 Karachi 314 (PLP)

(a)Land Acquisition Act (I of 1894), S. 18(1)‑Phrase "any person interested"‑Government bound by award made by Collector and cannot challenge its legality. Section 18 of the Land Acquisition Act, 1894, permits a reference to be made to the Court at the instance of "any person interested who has not accepted the award", and the objections which he can raise are also specified, namely, the measurement of the land, the amount of the compensation or the persons to whom it is payable or the apportionment of the compensation among the persons interested. The phrase "a person interested" has been defined in clause (b) of section 3 of the Act as including "all persons claiming an interest in compen sation to be made on account of the acquisition of land under this Act ; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". It is clear, therefore, that it is not open to the Provincial Government to raise any objections to the legality of the award as made by the Collector, or to the correctness of any of the decisions embodied in that award. The reason for this policy is not far to seek. The Collector is a person who is appointed by the Government and acts as its agent in the matter of acquisition of land under the Act. The Government is, therefore, bound by the award as made by the Collector, and it is only the persons interested, as defined in the Act, who have the locus standi to challenge the award in respect of the matters specified in subsection (1) of section 18 of the Act. On this view of the matter the Provincial Government was clearly precluded from challenging the legality of the award made by its own agent, viz. the Collector. (b) Land Acquisition Act (I of 1894), S. 18‑Scope of powers ,and jurisdiction of Court under section. The scheme of the Land Acquisition Act, 1894 as disclosed by the provisions embodied in Part DI thereof leaves no doubt whatsoever, that the Court, while dealing with a reference under section 18 of the Act, does not act as at Court of general jurisdic tion, but as a tribunal of special jurisdiction restricted to the matters enumerated in subsection (1) of section

18. The intention of the Legislature is made abundantly clear by the direction contained in section 21 of the Act to the effect that the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection. It follows, therefore, that not only was the Provincial Government not competent to raise the objection which it did, but that the Court was not empowered by law to examine that objection and to remand the case back to the Collector for a fresh decision, as no such power could be spelt out from the relevant provisions of the statute. While dealing with a reference under section 18 of the Act the Court must confine itself to the matters mentioned in subsection (1) of that section, and the only party competent to raise such matters is "a person interested" as defined in clause (b) of section 3 of the Act. The Court is, therefore, not empowered to go behind the reference so as to examine either the legality of the acquisition proceedings or the legality and validity of the: award except at the instance of a person interested, and that too only in respect of the matters specified in the section: It follows, therefore, that it has no power to remand the case back to the Collector for a fresh decision. Its duty is to proceed to give its own award in the light of the provisions and principles embodied in Part III of the Act. Abu Bakar v. Teary Mohan Mokerjee I L R 34 Cal. 451 ; Secretary of State v. Subramania .4yyar A I R 1930 Mad. 576 ; Raja Prama Natha Malik Bahadur v. Secretary of State A I R 1930 P C 64 ; Land Acquisition Officer, Karachi v. HiranandLilaram A I R 19+1 Sind 152 ; .Sand Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others P L D 1960 Kar. 826 ; Collector of Karachi v. Rustom F. Cowasji and others P L D 1961 Kar. 639 ; Bashir Ahmad and others v. The Collector, Mullan P L D 1962 Lah. 292 and Ghulam Muhammad v. The Government of West Pakistan PLD1967SC191fol. Collector of Karachi v. Haji Gola and others P L D 1965 Kar. 413 and The Collector of Karachi v. Fida Hussain S. Muhammad Ali and others P L D 1965 Kar. 573 ref. Land Acquisition Officer v. Valia Raja of Chirakkal Konilagam A I R 1944 Mad. 539 rel. (c) Land, Acquisition Act (I of 1894), S. 11‑Making award under S. 11‑Collector does not act as judicial functionary‑Award cannot be said to be vitiated solely on ground that after making assessment the Collector submitted same to his superior for approval. The correct position under section 11 of the Land Acquisi tion Act, 1894 is that the Collector performs a statutory function in holding an inquiry for the purpose of assessing the compen sation payable to the land‑owners, that the inquiry proceedings are administrative in nature, that the Collector cannot be precluded from making use of any information which may be available to him and is relevant for the purpose in accordance with the provisions of the law, that in assessing the compensation payable he must exercise his own judgment, and not be dictated to by any superior authority, but that his award cannot be said to be vitiated solely for the reason that after he had arrived at his assessment he submitted the same to a superior for approval. In order to vitiate the award it must be shown that the assessment was not what the Collector had determined but was dictated by the superior authority. The mere fact that there is correspondence to show that the award of the Collector was approved by the Commissioner does not mean that the award stands vitiated for the reason that it cannot be regarded as being the Collector's award. S. T. K. Kotherasan Chettyar v. The Special Collector of Twante I L R 14 Rang. 209 ; Azra v. Secretary of State for India I L R 32 Cal. 605 and S. M. Kako Bai v. The Land Acquisi tion Collector, Hissar and others A I R 1956 Pb. 231 rel. M. Samiullah v. The Collector of Aligarh A I R 1946 P C 75 and Dossabhai Bejani Motivala v. The Special Officer, Salsette Building Sites I L R 36 Bom. 599 ref. JUDGMENT ANWARUL HAQ, J.‑This appeal under clause 10 of the Letters Patent has arisen out of an Order made by our learned brother Kadir Nawaz S. Awan, J. on the 4th of May 1967 on a reference submitted to him by the Land Acquisition Collector under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). The four appellants had objected to the amount of compensation, namely, Rs. 25 per square yard, awarded by the Collector for the plots of land situate in North Nazimabad acquired from them on behalf of the Provincial Government of West Pakistan for the purpose of constructing the Karachi Circular Railway. The possession of the land had been taken on the 8th of May 1960, notices under section 9 of the Act were issued on the 2nd of January 1963 and the award was made by the Collector on the 2nd of December 1964. The appellants 1 and 2 had claimed Rs. 50 per Sq. Yd. as compensa tion before the Collector, whereas appellants 3 and 4 had claimed Rs. 55 per Sq. Yd. However, in their application demanding a reference under section 18 of the Act all the appellants had claimed compensation at the rate of Rs. 70 per Sq. Yd , which claim was, of course, contrary to the provisions of subsection (1) of section 25 of the Act as being in excess of the amount claimed before the Collector.

2. When the matter came up before the learned Single Judge as Court under the Act a preliminary objection was raised before him by the learned Assistant Advocate‑General to the effect that the award had not been made in accordance with the provisions of the Act, as it was submitted for approval to the Commissioner, Karachi Division, before it was finally announced by the Collector of Karachi. It was urged before the learned Judge that the award had to be made by the Collector himself and this power could not be abdicated by him in favour of his superior. After referring to certain correspondence placed on the record in support of this contention, the learned Judge held that the objection must prevail. As a consequence he expressed the view that as there was no award before him he could not go into the matters raised in the plaintiffs' reference, and accordingly he remanded the case back to the Deputy Commissioner of Karachi to dispose of the matter at an early date in the light of the observations made in the order. In the present appeal Mr. Kamal Azfar, the learned counsel for the appellants, has contended (a) That the reference under section 18 of the Act is open Only to "the persons interested" as defined in the Act and, therefore the Provincial Government had no locus standi to take any objection to the legality of the award made by its .own agent, namely, the Collector; (b) that the Court acting on a reference under section 18 of the Act exercise a special jurisdiction in accordance with the provisions of that section and accordingly it has no power to remand the case to the Collector for a fresh decision; and (c) that in any case, on the facts and circumstances disclosed on behalf of the Government the award could not be said to have been vitiated merely for the reason that it was referred for approval to the Commissioner of the Division.

4. In order to appreciate the first two contentions raised on behalf of the appellants it is necessary to refer to the pro visions contained in Part III of the Act dealing with the subject of "Reference to Court and procedure thereon." Subsection (1) of section 18 contemplates that "any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Col lector 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 persons inte rested." Subsection (2) of this section then lays down that the application shall state the grounds on which objection to the award is taken. Section 19 prescribes the matters which the' Collector has to state for the information of the Court. Then follows section 20 which enjoins the Court to cause a notice to be served on the applicant, all persons interested in the objection and, if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. Section 21 lays down that "the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection". For our present purpose it is not necessary to refer to the provisions contained in the remaining sections of this Part, namely, from sections 22 to 28, as they deal with ‑,he method of determining compensation and making the award of the Court. In the case before us that stage was not reached before the learned Single Judge.

5. It will be seen that section 18 permits a reference to be made to the Court at the instance of "any person interested who has not, accepted the award", and the objections which he can raise are also specified, namely, the measurement of the land, the amount of the compensation or the persons to whom it is payable or the apportionment of the compensation among the persons interested. The phrase "a person interested" has been defined in clause (b) of section 3 of the Act as including all persons claiming an interest in compensation to be made of account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". It is clear, therefore, that it is not open to the Provincial Government to raise any objections to the legality of the award as made by the Collector, or to the correctness of any of the decisions embodied in that award. The reason for this policy is not far to seek. The Collector is a person who is appointed by the Government and acts as its agent in the matter of acquisition of land under the Act. The Government is, therefore , bound by the award as made by the Collector, and it is only the persons interested, as defined in the Act, who have the locus standi to challenge the award in respect of the matters specified in subsection (1) of section 18 of the Act. On this view of the matter the Provincial Government was clearly precluded from challenging the legality of the award trade by its own agent, especially for a reason which arose outs of instructions issued by the Provincial Government itself by way of Standing Order No. 12 laying down the procedure to be followed by the Land Acquisition Collector. Paragraph 19 of the Standing Order contemplates that in certain situations the Collector shall submit the award to the Commissioner for approval. In these circumstances, the Provincial Government could not be permitted to turn round and question the legality and propriety of the Collector's action in submitting the award to the Commissioner. It seems to us, therefore, that for this additional reason as well the Provincial Government could not have been allowed to raise the preliminary objection which has prevailed with our learned brother.

6. The above discussion really disposes of the second con tention as. well. The scheme of the Act as disclosed by the provisions embodied in Part III thereof leaves no doubt whatso ever that the Court, while dealing with a reference under section 18 of the Act, does not act as a Court of general jurisdic tion, but as a tribunal of special jurisdiction restricted to the matters enumerated in subsection (1) of section

18. The intention of the Legislature is made abundantly clear by the direction contained in section 21 of the Act to the effect that the scope of the inquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection. It follows, therefore, that not only was the Pro vincial Government not competent to raise the objection which it did, but that the Court was not empowered by law to examine that objection and to remand the case back to the Collector, for a fresh decision, as no such power could be spelt out from the relevant provisions of the statute.

7. The question of the scope of the powers and jurisdiction of the Court under section 18 of the Act has come up' for examination in several decided cases, which land support to the view we have just expressed. We may refer to Abu Bakar v. Peary Mohan Mukerjee (I L R 34 Cal. 451), Secretary of State v. C. B. Subra mania Ayyar (A I R 1930 Mad. 576), Raja Prama Natha Malik Bahadur v. Secretary of State (A I R 1930 P C 64), Land Acquisition Officer, Karachi v. Hiranand Lilaram (A I R 1941 Sind 152), Sind Industrial Trading Estates Ltd. v. First Assistant Judge, Hyderabad, West Pakistan and 4 others (P L D 1960 Kar. 826), Collector of Karachi v. Rustam F. Cowasji and others (P L D 1961 Kar. 639), Bashir Ahmad and others v. The Collector, Multan (P L D 1962 Lah. 292) and Ghulam Muhammad v. The Government of West Pakistan (PLD1967SC191).

8. Particularly instructive are the observations made by their Lordships of the Privy Council in the case of Rai Prama Natha Malik Bahadur to the effect that "the jurisdiction of the Courts under the Act is a special one and is strictly limited by the terms of sections 18, 20 and

21. It only arises when a specific objection has been taken to the Collector's award and it is confined to a consideration of that objection. Once, therefore, it is ascertained that the only objection taken is to the amount of compensation, that alone is the matter referred, and the Court has no power to determine or consider anything beyond it, e.g.' the question of measurement raised for the first time three years after references were duly made by the Collector." In this case their Lordships disallowed the raising of an additional objection by a person interested, and on the reasoning adopted by their Lordships there could be no question of permitting any other person to raise any objection whatsoever. In the case of Ghulam Muhammad the learned Judges of the Supreme Court had occasion to discuss and distinguish the scope and object of the references separately permitted by sections 18 and 30 of the Act, and it was observed (on page 199 of the Report) that "under section 18 the reference is of a dispute with regard to the area or the quantum of the compensation or as to the apportionment of the same ‑amongst the persons interested. This reference is strictly limited to the above matters, whereas, under section 30 the reference may be made if a dispute arises as to the method of apportionment of the compensation or as to the persons to whom the same or any part thereof is payable . . . ".

9. In the face of these authorities and in view of the clear intention of the Legislature as expressed in the several sections contained in Part III of the Act, we are of the view that while dealing with a reference under section 18 of the Act the Court must confine itself to the matters mentioned in subsection (1) of that section, and the only party competent to raise such matters is "a person interested" as defined in clause (b) of section 3 of the Act. The Court is, therefore, not empowered to go behind the reference so as to examine either the legality of the acquisition proceedings or the legality and validity of the award except at the instance of a person interested, and that too only in respect of the matters specified in the section. It follows, therefore, that it has no power to remand the case back to the Collector for a fresh decision. Its duty is to proceed to give its own award in the light of the provisions and principles embodied in Part III of the Act.

10. In support of the proposition that the Court can remand the case back to the Collector for fresh determination the learned counsel appearing for the Provincial Government referred us to two reported cases decided by the same learned Judge whose order is now under appeal before us, namely, Collector of Karachi v. Haji Gola and others (P L D 1965 Kar. 413) and The Collector of Karachi v. Fida Hussain S. Muhammad Alf and others (P L D 1965 Kar. 573). In both these cases the award had been submitted by the Collector to the Chief Commissioner for approval before being formally announced, and the learned Judge held that in these circumstances there was no award before him made by the Collector and accordingly he could not proceed to determine the objections which had been raised in the reference under section 18 of the Act. Having so held the learned Judge proceeded to pass an order remanding the case to the Collector for fresh decision in accordance with law; but while making such a direction he did not discuss the question whether he had the power to act in this manner. It appears from both these judgments that the question of the Court's powers in this behalf was not at all raised before him by either of the parties to the proceedings, and accordingly both these cases cannot be taken as having decided this point one way or the other, except by implication. We find that this point was, on the other hand, specifically dealt with by a learned Single Judge of the Madras High Court in the case reported as Land Acquisition Officer v. Valia Raja of Chirakkal Konilagam (A I R 1944 Mad, 539), and it was observed t hat "the f urisdiction of the Court under sections 18 to 28 is a special jurisdiction for the Court to inquire into objections to the Collector's award and to make an award itself after hearing the relevant evidence. The Act does not empower the Court to remand the matter to the Collector for fresh inquiry and for a further awards". It was added that such a remand order clearly involved a material irregularity in the exercise of the special jurisdiction of the Court. We are in res pectful agreement with this view, for the reasons already stated.

11. On the view that we take of the submissions made on the first two points raised before us, it is perhaps not necessary to say much about the third contention urged on behalf of the appellants to the effect that, in any case, the award did not stand vitiated on account of having been submitted to the Commissioner for approval. However, we find that it would not be out of place to point out that on the facts as brought out on the record it is difficult to hold that the award in the present case is not that of the Collector but of a superior officer. As already pointed out by us, the award is dated the 2nd of December 1964, on which date it was apparently signed by the Deputy Commissioner of Karachi acting as Collector under the Act. The learned Single Judge has relied upon certain letters written by the Deputy Commissioner of Karachi to the Executive Engineer, Karachi Circular Railway. The first of these is Exh. 3/1 dated the 2nd on January 1965 in which it was stated that the award in respect of lands acquired in North Nazimabad had been approved by the Commissioner, Karachi, and a copy of the same was enclosed with the letter. The letter ended with a request that the Department should arrange the payment of the remaining amount of com pensation. The next letter relied upon is Exh. 3/3 dated the 14th of February 1966 and paragraph 2 of this letter makes a reference to the award which had already been sent to the Executive Engineer on the 2nd of January 1965 in respect of Nazimabad plots, and in paragraph 3 it is stated that as the award had been approved by the Commissioner of Karachi, therefore, compen sation had been paid to the owners of those plots in December 1964. Finally, there is a demi‑official letter (Exh. 3/5) dated the 2nd of November 1965 stating that the award had been prepared, and approved by the Commissioner and that it was pending in the Deputy Commissioner's office for want of funds to be disbursed to the land‑owners whose lands had been acquired. The learned Judge has drawn an inference from these letters that the award was not made by the Collector in the exercise of his own independent judgment but must be regarded to be an award made by the Commissioner. We regret that we cannot agree that such a conclusion inevitably flows from the correspondence just referred to. These letters, no doubt, show that the Commissioner had approved the award, but they do not necessarily prove that the Collector had abdicated his own jurisdiction and judgment, and that the award announced by him on the 2nd of December 1964 was as result of instruc tions issued by the Commissioner of Karachi Division. We have already referred, in an earlier part of this judgment, to a paragraph in the relevant Standing Order which requires the Collector to refer the award to the Commissioner and, therefore, the reference to the Commissioner was apparently in accordance with that procedure‑a procedure which does not necessarily imply that the Collector is not to exercise his own Judgment while assessing the compensation due to the land‑owners, and deciding the other questions which arise under section 11 of the Act. It has not been shown on the record as it stands that the Collector's assessment of compensation was, in any way, interfered with by the Commissioner when he approved the Collector's award: In these circumstances, it does . not appear to be correct to say that there is no award made by the Collector and that the only award is the one made by the Commissioner.

12. Apart from this factual position, we cannot lose sight of the fact that while making the award the Collector does not act as a judicial functionary, although he is performing a statutory, duty under the Act. The Collector nevertheless remains an agent of the Government and one object of referring his award to his departmental superior appears to be to give the Government a chance of withdrawing from acquisition proceedings if it considers the cost to be excessive. This aspect of the matter was brought out in S. T. K. Kotherasan Cheztyar v. The Special Collector of Twante (I L R 14 Rang. 209) with reference to the power of withdrawal granted by section 48 of the Act, but it was added that "it is both improper and ultra vires for a superior executive officer to issue instructions to the Collector as to the matters which he can take into account in assessing the compensation, or to require the Collector to re‑examine the case in the light of such instructions when received". The Privy Council observed in Azra v. Secretary of State for India (I L R 32 Cal. 605), that the inquiry held by the Collector as to the value of the land and the amount of compensation to be paid for its acquisition, resulting in the award, is an administrative and not a judicial proceedings if the owner of the land desires a judicial ascertainment of the value of the land he can require the matter to be referred by the Collector to the Court for determination. Their Lordships observed further that "in making his award the Collector is not limited to the evidence taken before him, but is entitled to avail himself of information' supplied to him, without the know ledge of the owner of the land and not disclosed at the inquiry". A similar view was expressed by a High Court in the Indian jurisdiction in S. M. Kako Bai v. The Land Acquisition Collector, Hissar and others (A I R 1956 Pb. 231), and it was held that the inquiry by the collector is administrative and not judicial, and the award which he makes under section 11 of the Act is merely a tender or offer of an amount as compensation payable by the Govern ment to the claimant. The offer is binding only on the Government and not on the claimant, who has a right under section 18 of the Act to get the matter decided by the Civil Court.

13. Mr. Zari, appearing for the respondent‑Government, how ever, referred us to M. Samiullah v. The Collector of Aligarh (AIR 1946 P C 75) in which it was observed that "the Collector in awarding the amount of compensation under section 11 is performing a statutory duty, a duty exercise of which in cases where land is to be acquired for a public purpose concerns the public since it affects the expenditure of public money. In assessing compensation he is bound to exercise his own judgment as to the correct basis of the evaluation and his judgment cannot be con trolled by an agreement between the parties interested." Again in Dossabhai Bejani Mutiwala v. The Special Officer, Salsette Building Sites (I L R 36 Bom. 599) the view expressed was that "when the Collector, appointed under the Land acquisition Act of 1894, once makes the inquiry prescribed by the Act and reaches his own conclusion as to the amount of compensation to be awarded to the claimant, it is not competent to the Government to set aside the conclusion and to direct the Collector to sub stitute a smaller amount than that which, as a result of his inquiry, he has determined to offer".

14. It seems to us that the correct position under section 11 of the Act is that the Collector is performing a statutory function in holding an inquiry for the purpose of assessing the compen sation payable to the land‑owners, that the inquiry proceedings are administrative in nature, that the Collector cannot be pre cluded from making use of any information which may be available to him and is relevant for the purpose in accordance with the provisions of the law, that in assessing the compensation payable he must exercise his own judgment, and not be dictated to by any superior authority, but that his award cannot be said to be vitiated solely for the reason that after he had arrived at his assessment he submitted the same to a superior for approval. In order to vitiate the award it must be shown that the assessment was not what the Collector had determined but was dictated by the superior authority. In the latter event there would be t a violation of the provisions of the Act, but not otherwise. The mere fact, therefore, that there is correspondence in the present case to show that the award of the Collector was approved by the Commissioner does not mean that the award stands vitiated for the reason that it cannot be regarded as being the Collector's award.

15. For the foregoing reasons, we would accept this appeal, set aside the judgment of the learned Single Judge and direct that he should proceed with hearing the reference on merits in accordance with law. There will be no order as to costs. A. E./K. B. A. Appeal accepted.