P L D 1965 Dacca 402 (PLP)

Dates of hearing: 2nd, 3rd and 7th July 1964. The suit arises out of a claim for recovery of certain amount of money awarded by the Land Acquisition Collector in favour of the defendant. It is an admitted fact that the property in dispute originally belonged to one Uzirali who died leaving behind four sons Abdur Rahman, Abdul Majid, Khalilur Rahman and Abdul Aziz and one daughter TazunNessa. The plaintiff purchased the shares of Abdul Rahman, Abdul Majid and Tazunnessa and he got accordingly 5/8th share in the property. The defendant in whose favour an award for Rs. 2,587‑8‑0 was passed claimed to have purchased from two other heirs, of Uzir Ali, namely Khalilur Rahman and Abdul Aziz on 5th of August 1936. It also appears that before the purchase by the defendant the Chittagong Islamabad Co‑operative Bank secured an award for some debt against Abdul Aziz and the award followed upon the disposal of the Dispute Case No. 773/35‑36 on 10th of May 1936, and the Bank thereafter purchased the property on 22nd of November 1937. Both the Courts found that defendant could not have acquired the share of Abdul Aziz but that of Khalilur Rahman nor the plaintiff could have acquired the share of Khalilur Rahman and as such the plaintiff was entitled to half of the award money of Rs. 2,587‑8‑

0. But the trial Court dismissed the plaintiff's claim on the finding that the plaintiff's claim to title and possession was lost by adverse possession under Article 142 of the Limitation Act. That view of the learned Munsif had not been accepted by the learned Subordinate Judge and he had accordingly decreed the plaintiff's suit in part declaring that the plaintiff was entitled to get half of Rs. 2,587‑8‑0 namely, Rs. 1,293‑12‑

0. Hence the appeal at the instance of the defendant. ? The learned Advocate for the appellant has pressed three grounds in support of the appeal. His first ground is that the suit is not maintainable inasmuch as the plaintiffs remedy did not lie in a regular suit but by way of a prayer for a reference by the Collector to the civil Court within six weeks from the award. In support of this contention he has relied on the provisions of section 18 of the Land Acquisition Act and also the case of Saibesh Chandra Sarkar v. Sir Bejoy Chand Mahatap Bahadur (26 C W N 506). ??????????? In the case relied on by the learned Advocate for the appellant there was a dispute as to the amount awarded to the Zamindar and his Patnidar and they were served with notices under section 9 of the Land Acquisition Act. After the Collector apportioned the compensation half and half, neither party applied for any reference under section 18 of the Act and the Patnidar withdrew the amount awarded by the Collector.? The Zamindar not being satisfied brought the suit for recovery of the amount, which had been withdrawn by the patnidar on various grounds. In those facts it was held in that case that the remedy was not by a regular suit as the act created a special jurisdiction and provided a special remedy and accordingly it ousted the ordinary jurisdiction of the civil Court. It was further observed by referring to the proviso to section 30. "The proviso as it stands under the old Act, is very general in its terms. Admittedly it cannot be given effect to in its entirety, it cannot be held that a suit lies notwithstanding a reference to the Court upon the application of a party under section 18 or by the Collector of his own motion under section

30. The proviso therefore must be given a limited application, and we think that it applies only to cases where the person is under a disability or is not served with notice of the proceedings before the Collector." ??????????? While on the other hand the learned Advocate for the respondent relying on the case of Bago v. Boshan Beg (A I R 1926 Lah. 321) and also the third proviso to section 31 (2) of the Land Acquisition Act has contended that it is open to a party either to ask the Collector for a reference to the civil Court or take recourse to a regular suit. The above contentions of the learned Advocate call for an investigation of the provisions of the Land Acquisition Act and also the decisions cited by them. ??????????? Section 9 of the Land Acquisition Act provides for notices to be served on the persons interested indicating that the Government intends to take possession of the land and that claims to compensation for all interest in such land may be made to him. It also provides for notice to the same effect on the occupier for any such land and on such persons known or believed to be interested therein, or to be entitled to act for persons so interested. Sections 10 and 11 have made provisions for enquiries by the Collector. Subsection (1) of section 12 provides: "Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested". From the aforesaid provisions of subsection (1) of section 12 it appears that such an award shall be final and conclusively evidence as between the Collector and the persons interested and not between co‑claimants. Subsection (1) of section 181 provides: "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 for the compensation among the persons interested". If sections 12 and 18 be read together we find that the award passed by the Collector would be final and conclusive evidence as between the Collector and the persons interested and nothing more, of course it can be argued that when a reference has been made to the Court as required by any interested person and the Court investigates into the matter and finally decides on the dispute in that case it can be argued that the aggrieved party cannot thereafter file a regular suit for his claim. Further section 31 provides for payment of compensation or deposit of the same in Court. Third proviso to subsection (2) of section 31 provides:‑ "Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto." This proviso provides for liability of the recipient of the compensation to the person lawfully entitled to get the compensation though an award has been made in his favour and money has been received by him thereon. After consideration of the relevant provisions of the Act. I am of opinion, that the award passed by the Collector will be conclusive and final as between the Collector and the claimants but not as between the co‑claimants. If no reference is sought for, the Collector's or the Government's liability cannot be questioned by any regular suit. The only remedy, provided, is by way of reference by the Collector to the Court. But the interested persons in the other case will be at liberty either to ask for a reference's by the Collector to the Court or to approach the civil Court direct to have their dispute decided in between the interested persons. This observation of mine is further strengthened by the provisions of section 20 of the Act which provided that thereupon cause a notice, specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:‑ (a) the applicant; (b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and (c) if the objection is in regard to the area of the land or to the amount of the compensation, the Collector. So, clause (c) indicates that notice will be given to the Collector if there is an objection in regard to the area of the land or to the amount of the compensation but when there is no objection in regard to the area of the land or to the amount of compensation no notice is necessary thereby showing that the Collector in such reference is not a necessary party because the dispute will be in between the interested persons and no others. Next ground urged is that the suit is bad for defect of parties, inasmuch as the Government has not been made a party. I have already pointed out that the Collector is a necessary party in a reference before a Court when there is an objection in regard to the area of the land or to the amount of compensation but in c the present case there is no such dispute but the dispute is only the sharing between the defendant and the plaintiff. Hence I find that the suit is not bad for defect of parties. The last ground urged by the learned Advocate is that the suit is barred by limitation. This argument is based on the provisions of section 18 of the Land Acquisition Act. It has been argued that as section 18 provides for six weeks' time for requiring a reference by the Collector from the date of the award the suit also will be governed by the said bar, namely six weeks' time from the award, I am unable to accept this view. I have already observed that the two remedies are open for the interested persons when the area of the land and the amount of the compensation is not questioned. The aggrieved party may require the Collector for a reference to a Court or may come direct to the Court for recovery of the sum taken by a person in whose favour the award has been made. The claim being a money claim and the suit having been instituted within three years I do not find that the suit is barred by limitation. I accordingly find no substance in any of the contentions and dismiss the appeal with costs. K. M. A.????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.