P (PLP)

" It is true that under section 31(2) of the Land Acquisition Act it is provided that the Collector shall deposit the amount of compensation in the Court, but it seems to me inconceivable that the legislature by this could have intended that deposit in Court should be .a condition precedent to a reference under section 18 of the Land Acquisition Act, if the requirements of that section are complied with and if any of the contingencies enumerated in section 31(2) arises. Further the provisos to the very section contemplate payment in certain cases ". In an earlier case reported as (10 Indian Cases 818) a Division Bench had held that " where a party has wrongly taken from the " Court moneys deposited in Court by his opponent, that Court has inherent power to enforce a refund of the amount with interest. In a recent case reported as (A. I. R. 1944 Bom. page 200) the scope of section 18 of the Land Acquisition Act was considered by a Division Bench. The judgment was delivered Sattar by Beaumont C. J. It was held that the Collector has power to make a reference on certain specified conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award, the second condition is as to the nature of the objections which may be taken and the third condition is as to the time within which the application shall be made. It seems to me that the Court is bound to satisfy itself that the reference made by the Collector complies with the specified conditions, so as to give the Court jurisdiction to hear the reference. It is not a question of the Court sitting in appeal or revision on the decision of the Collector; it is a question of the Court satisfying itself that the reference made under the Act is one which it is required to hear. If the reference does not comply with the terms of the Act, then the Court cannot entertain it. I have myself some, difficulty in seeing on what principle the Court is to be debarred from satisfying itself that the, reference, which it is called upon to hear, is a valid reference." The Madras view is contained in A.I. R. 1943 Mad.

327. It is a Single Bench judgment. Considering the various rulings cited by him the learned judge held that " it is duty of the Collector before he makes the reference to decide on the materials before him whether he should make the reference or not, and if he decides to make and does make a reference, it is not open to the land Acquisition Court to go behind it. It is not open to the High Court or any other authority to interfere when the land Acquisition Officer decides to make and does make a reference. In the case of a reference under section 18 it is not the application of the party which gives jurisdiction to the Civil Court, but it is the reference made by the land Acquisition Officer. An application may be given and the reference may not be made. Conse quently, if the application was not validly made, then it will only indicate that the reference was made without adequate grounds. But that will not make it any the less a reference which would give the Court jurisdiction to enquire into the question referred to. "It was also held that " it does not make it obligatory on the Collector to give notice to interested person whom he is not aware of. If he chooses to give a notice, then that person will have to apply within six weeks. But if he does not give a notice and. the person interested was not present then the period of limitation will be six months." The Madras goes further than the Bombay‑ view referred to above in A. I. R 1944 Bom. 2C

0. According to Madras it would not be open to the Court to go behind the reference by the Collector and to any that the conditions specified in section 18 were not fulfilled. The Patna High Court has taken the view that the fact that the compensation awarded under the land Acquisition Act is withdrawn by the party to whom it was awarded, does not affect the right of the, party who is entitled to receive it to have a reference made. to the Court under section 18 of the Act." This is a Division Bench judgment. I. L. R. 35 Cal.1104 was distinguished on the ground that in that case one of the parties to the award was a Hindu widow and there was no dispute as to the amount of the compensation or to the interest of the persons in the amount awarded, or to any apportionment thereof and the money awarded by the Collector was withdrawn according to the allotments made by him by the several persons entrusted therewith. Six months after the award, that is long after the period prescribed for applying for a reference under section 18 an application for reference was made by a daughter of the widow who was not a party in the acquisition proceedings. The object of the reference was to have a determination as to the limited interest of the widow and as to her not having any power to alienate the land referred to in clause 2, section

31. This was not considered to have any bearing on the point in issue. In the course of the judgment it was observed that "the District Judge had also a right to demand the deposit of the money in Court when the reference was made and to insist upon its being done, and in our opinion he ought to have done so before disposing of the reference so that the money could be ready for payment forthwith in pursuance of the decree made by him." The language of section 18 of the land Acquisition Act does not require the deposit of money in Court as a condition precedent to the reference by the Collector. In the case of a dispute as to (a) measurement of land (b) amount of compensation (c) the person to whom it is payable and (d) the apportionment of the compensation among the persons interested, a person interested who has not accepted the award may by a written application to the Collector demand a reference to the Court. The period prescribed for such application varies with the knowledge of the applicant and in no case does it exceed six months from the date of the Collector's award. Section 3 explains the expression " person interested " including all persons claiming an interest in compensation 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 cannot be doubted that the petitioners who are the brothers of the deceased husband of Mst. Hamida Begum succeeding to an ordinary widow's estate under custom are persons interested under the Land Acquisition Act. Reference in this connection may be made to 105 Indian Cases 219 (A. Madras case) and 116 Indian Cases page 335 (A Lahore case). In the latter it was held that " a reversioner who is entitled to succeed to land on the death of a widow holding a life estate is a " person interested " as defined in section 3 of the Land Acquisition Act and is, therefore, entitled to present an objection under section 18 of the Act." It was further pointed out that sections 31 and 32 of the Land Acquisition Act are intended by the legislature to protect the interests of reversioners when land is taken from the possession of a person who held it only on a life‑estate and a widow holding a life‑estate under the Customary Law is within the purview of the sections. It appears that the public notice issued by the Collector under section 9 did not attract the attention of the petitioners or they were otherwise kept in ignorance thereof. They could not Bibi therefore, present their case to the Collector and there was no occasion for their objections to be considered. As observed above the award by the Collector was made on 20th March 1949 and within three days i.e. on 23rd March 1949 the amount was paid to Mst. Hamida Begum. The application under section 18 was presented on the 29th i.e., within 1.0 days of the award itself. It was, therefore, amply within time and made by a person interested about one of the matters mentioned in section 18 and the Collector was bound to make the reference to the Court. The Court could not, therefore, refuse to entertain it. The allied question whether the Court has a power to require a person to whom the money has been paid, to place it again in the custody of the Court, should not present much difficulty. According to A. I. R. 1920 Patna 222, the Court was held to have an inherent right to make the demand. In any case the order of the Acquisition Court would amount to a decree under section 54 of the Land Acquisition Act and as such it is capable of execution. As the question indicated in the beginning is not free from difficulty and there is a conflict of judicial opinion about it, it would be desirable that the case be referred to a larger Bench preferably a Full Bench for decision. The papers may be laid before my Lord the Chief Justice for necessary orders. MUHAMMAD SHARIF, J.‑The relevant facts are, contained in the order of reference dated 3rd Match 1950. A small area of land measuring 15 kanals 18 marlas out of Chak No. 122‑ G.B., Tahsil Jaranwala, District Lyallpur, was acquired by the Government for the Construction of a drainage scheme. Mst. Hamidan Begum respondent was in possession and she was given the compensation money by the Collector. The award was made on the 200 of March 1949. and the sum of Rs. 2472‑8.0 was paid out on 23rd of March 1949. On 1st of April 1949 a petition was presented to the Collector under section 18 of the Land Acquisition Act by the petitioners that the matter be referred to the Acquisition Court, as there was involved a question of title. The Collector made the required reference. The learned District judge follow ing,

63. Indian Cases 1, dismissed it on the short ground that, as the money had been paid out and was no longer in the custody of the Court, the reference was not competent. It appears that one Maulvi Muhammad Ali was the original owner of the land in dispute, as also of some other lands. He had five sons i.e., Badar‑ud‑Din, Shams‑ud‑Din, Abdul Qayyum, Abdus Sattar and Qamar‑ud‑Din. On his death the five sons succeeded in,equal shares. Abdul Qayyum died without any issue and his share was entered in the name of his widow Mst. Hamidan Begum on the usual life tenure. The remaining‑ four brothers divided their patrimony into four shares and Mst. Hamidan Begum, the widow of Abdul Qayyum, was given 5‑kanals by each of her husband's brothers i.e., 20 kanals in all for her maintenance. Out of this, land measuring 15 kanals 18 marlas was acquired by the Government 15 kanals was the property of Abdus Sattar and 18 marlas that of Qamar‑ud‑Din. It was they who moved the Collector to make the reference to the District Judge under section

18. After hearing the counsel, the following two questions arise for determination :‑ (1) Whether the Acquisition Court can go behind the reference made by the Collector under section 18 of the Land Acquisition Act, if it is within limitation ? (2) Whether the reference by the Collector is competent even after the money had been paid out and the applicants had not appeared before the Collector ? There appears to be considerable conflict of judicial opinion on these questions and it is expedient that they be determined by a Full Bench. MUHAMMAD MUNIR, C. J.‑I agree that the questions be referred to a Full Bench. ORDER OF FULL BENCH MUHAMMAD MUNIR, C. J.‑The ‑two following questions :‑‑ (1) Whether the Acquisition Court can go behind the reference made by the Collector under section 18 of the Land Acquisition Act, if‑it is within limitation ? and (2) Whether the reference by the Collector is competent even after the money had been paid out and the applicants had not appeared before the Collector ? have been referred to this Full Bench by a Division Bench in the course of the hearing of a petition for revision against an order of the District Judge by which he held that a reference under the Land Acquisition Act made to him as a Court under that Act by the Collector was not competent.‑ The questions have arisen. in the following circumstances. One Maulvi Muhammad Ali owned some land in Chak No; 122‑A. B., Tahsil Jaranwala, District Lyallpur. On his death the land was mutated in equal shares in the names of his five sons; viz., Badar‑ud‑Din, Shams‑ud‑Din, Abdus Sattar, Qamar‑ud- Din and Abdul Qayyum. On Abdul Qayyumi's death five acres of land which had previously been held by the five brothers; was given to Abdul Qayyum's widow Mst. Hamida Begum to be held: by her on the usual widows estate under the Punjab Customary Law. Out of this land fifteen kanals and 18 marlas were acquired by the Provincial Government under the Land Acquisi tion Act for the purposes of a drainage scheme. The necessary notices were issued but apart from Mst. Hamida Begum, nobody took any, interest in the proceedings or put in any claim or objections before the Collector. Consequently he gave his award on the 20th, March 1949, according to which he awarded Mst. Hamida Begum, who was shown in the revenue papers as the owner on the land, a sum of Rs. 2472‑8‑0 as compensation, The amount was actually paid to Mst. Hamida Begum on 23rd March 1949, nobody appearing to oppose the payment. On 1st April 1949 Abdus Sattar and Qamar‑ud‑Din, two of the brothers of Mst. Hamida Begum's husband, put in an application before the Collector under section 32 of the Land Acquisition Act. After mentioning the relevant facts about Mst. Hamida Begum's interest in the land acquired, the application alleged that the land which was in the possession of that lady would revert to the petitioners and prayed that the amount of compensation be not paid to her but should be dealt with under section 32 of the Act, and that if by oversight the money had already been paid to her she should be ordered to refund it and then the money should either be dealt with under section 32 of the Act or sent to the Court under sections 18 and 31 of the Act. Holding that of dispute as to title arose, the Collector referred the matter for determination to the Court under sections 18 and 31 of the Act. When the reference was heard by the 'Court, objection to its competency was taken by the counsel for. Mst. Hamidan Begum on the ground that as the compensation money had already been paid in accordance with the award, none of the contingencies mentioned in section 31(2) of the Act having arisen, no order under section 32 could be made and that, therefore, the reference itself was incompetent and infructuous. The Court dealt with this point and following the decision of this Court in Gauhar Sultan v. Ali Muhammad (63

1. C. 1) in preference to the decision of the Patna High Court in Ramhat Sahu and others v. Mahadeo Chaudhuri and others (A. I. R. 1920 Pat. 222) and that of the Bombay High Court in Gangadas Mulji v. Haji Ali Muhammad Jalal Saji and another (I. L. R. 42 Bom. 54), held that as the money had already been paid according to the award and not deposited in Court under section 31(2) of the Act, the reference was incompetent and no order under section 32 could be made. Against this order of the Court a petition for revision was presented to this Court which in the first instance came up before a Single judge who referred it to Division Bench on the ground that there was some conflict of opinion on the question whether, when the amount of compensation has been paid, a reference under section 18 of the Land Acquisition remains competent. The Division Bench have referred the above two questions to this Bench because in view of the conflict of judicial opinion on the questions involved, the matter in their opinion required consideration by a larger Bench. The questions formulated by the Division Bench, which have been set out above, must be read in the light of the facts mentioned above, about which there is no dispute. The Court has held that as the amount of compensation has been paid to the person who, according to the award, was entitled to it, and no objection was put in by any interested party before its payment, no order under section 32 of the Act can be made. I have already pointed out above that the application to the Collector purported to be one under section 32 of the Land Acquisition Act, which is as follows : 32. (1) If any money shall be deposited in Court under sub‑section (2) of the last preceding section and it appears that the land in respect whereof the same was awarded belonged to any person who .bad no power to alienate the same, the Court shall (a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of owner‑ship as the land in respect of which such money shall have been deposited was held, or (b) if such purchase cannot be effected forthwith, then in such Government or other approved securities as the Court shall think fit : and shall direct the payment of the interest or other proceeds arising from such investment to the person or persons who would for the time being have been entitled to the possession of the said land, and such moneys shall remain so deposited and invested until the same be applied (i) in the purchase of such other lands as aforesaid ; or (ii) in payment to any person or persons becoming absolutely entitled thereto. On the plain terms of this section an order under it in respect of the money can be made only if it has been deposited in Court under subsection (2) of section

31. Now section 31 provides as follows;‑ 31. (1) " On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled thereto according to the award, and shall pay it to them unless prevented by some one or ‑more of the contingencies mentioned in the next subsection. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or 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 of the compensation in the Court to which a reference under section 18 would be submitted; provided alto that nothing herein obtained shall affect the liability of any person, who may receive the whole or any part of any compensation award under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this section the Collector may, with the sanction of the Local Government, instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land‑revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. In the present case the only person who, at the time the award was made, appeared to be entitled to the money, was Mst. Hamida Begum who was shown in the revenue papers as' the owner of the land. No other person had till then interested himself in the matter and there was nothing before the Collector to show that Mst. Hamida Begum was not a person competent to alienate the land. Nor was there any dispute before him as to the title to receive the compensation or to the apportionment thereof. Mst. Hamida Begum herself received the amount three days later and, therefore, it cannot be said that the persons interested did not consent to receive it. Consequently subsection (2) of section 31was not applicable to the circumstances as they existed on the 20th or 23rd March and the Collector was, accordingly, bound to make the payment to Mst. Hamida Begum. That being the position, the Court could not take any action under section 32 because its jurisdiction to act under that section depends on the money having been deposited in Court by the Collector under subsection (2) of section.

31. Such deposit is a condition precedent to the making of any order under section 32 and if the money has not been deposited in accordance with subsection (2) of section 31, the Courts jurisdiction to make any such order does not at all come into being. That this is the correct position has been ruled in a decision of this Court reported as Gauhar Sultan v. Ali Muhammad. 63 I. C. 1, where in similar circumstances Martineau J., held that an order for the investment of the money awarded to a person can only be made if the money has been deposited in Court and that there is .no authority for holding that the money paid in accordance with the award under section 31 (1) can be ordered to be refunded for the purpose of its being dealt with under section 32 (1), and in Gobindaranee Dasee v. Brinda Ranee Dasee, I. L. R. 35 Cal. 1104. where Coxe and Bell JJ., held that where the money has been paid to the person entitled to it under the award, the Court has no jurisdiction to order its refund so that it may be dealt with under section 32, subsection (1). Not a single case has been cited to us in which it has ever been held that where the money has not been deposited in accordance. with sub section (2) of section 31 of the Land Acquisition Act, it is still open to the Court on a reference being made to it to recall the money and to make an order in respect of it under section

32. There are of course several cases where money having been drawn by a person by mistake or fraud from the office of the Collector, it was held that the Court had jurisdiction to recall the money, but all these cases were cases either of apportionment between persons interested or where the title of the person receiving the money was disputed and not where as here the party aggrieved merely wanted an order under section 32 of the Act. It is contended by the petitioners that a reference to the Court having been made by the Collector, the former had no jurisdiction to question the validity of that reference and was bound to decide the matter on the merits and, if necessary, to recall the money from Mst. Hamida Begum with a view to dealing with it in accordance with the manner prescribed by section

32. In support of this argument some cases have been cited to us, in which it has been held that the power to recall the money, where it has been paid by mistake, exists and that the Court has no jurisdiction to go behind a reference made to it and to question its competency. A representative case on this point is Venkateswaraswami v. Sub‑Collector, Bexwada, A. I. R. 1943 Madras 327, where it was held by Kuppuswami Ayyar J., that it is not open to the High Court or any other authority to interefere when the Collector decides to make and does make a reference. The maintainability of the reference in that case was objected to on the ground that the applicant for reference was not a person interested and that the application was barred by time. Both these points were decided against the objector but the learned judge observed obiter that since it is not the application of the party that given to the Court but the reference itself, the Court cannot question the validity of the reference. The facts of that case were clearly distinguishable but if the learned judge intended to lay down the unqualified rule that once the Collector has made a reference, the Court to which the reference, is made, has no jurisdiction to enquire into the competency of that reference, I should be extremely reluctant to accept that statement of the law. Every‑tribunal of limited jurisdiction is not only entitled but to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction; and where the jurisdiction of such tribunal is dependent upon the" existence of certain facts or, circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter it must be satisfied that the conditions requisite for its acquiring seism of that matter have in fact arisen. As was remarked by the Privy Council in Nusserwaniee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor (6 M. I. A. 134 at page 155), wherever jurisdiction is given to a Court by an Act of Parliament, and such jurisdiction is only given upon certain specified terms contained in that Act, it is a universal principle that these terms must be complied, with, in order to create and raise the jurisdiction, for, if they be not complied with, the jurisdiction does not arise. Therefore the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction, it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act. I agree with the observations of Beaumont C. J,. with which Rajodhyaksha J., agree in Mahadeo Krishna Parkar v. Mantledar of Alibagh, A. I. R. 1944 Born. 200, that since the Collector has power to make a reference on certain specified conditions the Court is bound to satisfy itself that the reference made to it by the Collector complies with those conditions, so as to give the Court jurisdiction to hear the reference, because if the reference does not comply with the terms of the Act, then the Court cannot entertain it. The present reference was made under sections 18 and 31 of the Land Acquisition Act but neither of those sections was 'applicable in the circumstances. Section 31 has nothing to do with the making of a reference and under section 18 a person interested who has not accepted the award, may, by written application to the Collector, require that the matter 156 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 person to whom it is payable or the apportionment of the compensation among the persons interested In the present case, there was no objection to the measurement of the land or to the amount of compensation or to the apportionment of the compensation among the persons interested Nor can it be said that the petitioners, who asked for the reference, ever questioned the right of .Mst. Hamida Begum to receive the compensation. As I have already pointed out, the application for reference did not say, that Mst. Hamida Begum was not entitled to receive the money. All that it sail was that Mst. Hamida Begum had only life‑interest in the acquired land and that on her death this land would revert to the petitioners and other reversioners of Mst. Hamida Begum's husband and the only relief it asked for was that the money be not paid to Mst. Hamida Muhammad Begum but should be applied in purchasing some other land or invested in a Bank and the interest thereon paid to her. It was not alleged that Mst. Hamida Begum had no right to receive the money and there was no prayer that the question of Mst. Hamida Begum right to receive the money be referred to the Court. The application appears to have assumed that the Collector himself could recall the money if it had already been paid and could be applied in the manner prescribed by section

32. It cannot, therefore, be said that there was any dispute before the Collector as to the person to whom the amount of the compensation was payable, and that being so, no reference under section 18 of the Act could be made. In fact the application asked for no reference to the Court, and in this respect the case is similar to the Allahabad case in Sukhbir Singk v. Secretary of State for India I. L. R. 49 All. 212 where it was held that if the application on which reference is made under section 18 of the Act does not ask for a reference, but a reference is made by the Collector, the Court is entitled to refuse to act on the reference The Court the present case was thus competent to hold that no reference lay to it in the circumstances, and that even if it lay, it was helpless in the matter because the money not having been deposited in it, it could make no order respecting it under section 32 of the Act. Our reply, therefore, to question No. in reference to the circum stances of this case is in the affirmative, and the reply to question No. 2 in the negative if that que9tion be taken to refer to the position that may arise by the money having been paid in accordance with the award' under section 31 and the issue be whether the Court, when required to act under section 32, is competent to recall the money, JUDGMENT OF DIVISION BENCH In view of the answer returned by the Full Bench, the reference was incompetent but if it was competent, the Court was and right in holding that the money not having been deposited in Court, no order under section 32 could be made. The petition is dismissed with costs. A.H. Petition dismissed.