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Miscellaneous Civil Revision No. 7 of 1963, decided on 16^th May 1963.

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-----Appeal can be treated as revision and vice versa.

Ss. 30, 18 & 11 Collector making reference under S. 18 on application of party‑Not barred from making reference under S. 30 on application of third person‑Payment of compensation to one of claimants No bar to reference under S. 30.

"Land Acquisition Act": Om Prakash Aggarwala, 3rd Ed., p. 342 ref.

A I R 1942 Cal. 53 ; 45 Mad. 320 (P C) and 22 C W N 816 ref.

Ss. 18 & 30‑Distinction between reference tinder S. 18 and one under S. 36‑Reference under S. 18 can be made only on application of party and within prescribed period whereas that under S. 30 can be made suo moto by Collector at any time.

Kh. Muhammad Shafi for Petitioner.

S. Zainul Abdin Shah for Respondent.

This is a revision petition against the order of the District Judge, Muzaffarabad dated 8‑1‑63 by which the learned District Judge held that the reference made by the Collector under section 30 on the application of Muhammad Ashraf Shah was competent and he had jurisdiction to proceed with the matter.

The facts giving rise to this revision petition are that the Government started proceeding for the acquisition of land com prising Survey Nos. 1438/182, 183‑min and 184‑min measuring 10 kanals situate in Muzaffarabad town for Eid Gah which is the property of Ziarat Pir Alauddin with S. Muhammad Salim Gilani as its Mohtamim'. The Collector, Muzaffarabad by his order dated 30‑8‑1960 made an award in favour of Muhammad Salim Gilani petitioner and the amount of compensation was assessed at Rs. 11,500. Muhammad Salim Gilani was dissatisfied with the amount of compensation awarded by the Collector and on his application the Collector made a reference to the D. J., Muzaffarabad under section 18 of the Land Acquisition Act. On 29‑3‑61 S. Muhammad Ashraf Shah respondent applied to the Collector for making a reference to the D. J., Muzaffarabad on the ground that the property acquired belonged to Pir Hisamuddin deceased father of Pir Muhammad Salim Gilani and that one Mst. Yaqubunnisa who was also the widow of Pir Hisamuddin was interested in the apportionment of the compensation awarded by the Collector and that she has died and Muhammad Ashraf Shah is her sole heir and therefore he is also interested in the apportionment of the compensation. The Collector made a reference to the D. J. on the application of Muhammad Ashraf Shah on 30‑3‑1961. Muhammad Salim Gilani put in objections before the D. J. to the effect that the reference made on the application of Muhammad Ashraf Shah was not competent and the D. J. had no jurisdiction to proceed in the matter of such reference. The learned D. J. passed the order which is the subject of revision.

Learned counsel for the respondent has taken a preliminary objection that revision is not competent. He has referred to section 54 of the Land Acquisition Act which provides that subject to the provisions of C. P. C. 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceeding under this Act to the High Court from the award or from any part of the award of the Court. Learned counsel's contention is that an appeal is the only remedy and revision is not competent. Reading section 54 it appears that an appeal should lie to the High Court from the award or from any part of the award of the Reference Court. I wonder if the order under revision can be said to be an award or any part of the award. Learned counsel for the petitioner's contention is that the D. J. Reference Court has no jurisdiction to proceed in the matter of reference made on the application of S. Muhammad Ashraf Shah, therefore, the revision is competent against such order. If this view can be said to be correct then,' of course, revision is competent. In any case an appeal can be treated as a revision or a revision petition can be treated as an appeal, therefore, the preliminary objection raised by the learned counsel for the respondent would not make any difference and is overruled.

It was argued by the learned counsel for the petitioner that Mst. Yaqubunnisa was alive at the time of making the award by the Collector and sometime afterwards even but she did not appear before the Collector, therefore, she or her heirs who were not parties to the proceedings before the Collector had no right to come to the Reference Court. Learned counsel has cited A I R 1942 Cal. 53, wherein it was held that the jurisdiction of the Court in a reference made by the Collector under section 30, is confined to a consideration of the dispute expressly referred to it by the Collector. An addition of parties may indeed be made when the persons who desire to be added as parties do not raise any new dispute but want to place other materials before the Court in connection with the dispute that is referred to it by the Collector. But it cannot be permitted where the question sought to be raised is entirely to be a new one and is not covered by the reference made by the Collector. Consequently a person claiming a share in compensation money who was not a party to the proceeding before the Collector cannot be made a party to the apportionment case referred to the Court under section 30. The line of argument advanced by the learned counsel for the petitioner is that a reference had been made by the Collector to the D. J. on the application of the petitioner who was dissatisfied with the amount of compensation and that S. Ashraf Shah is setting up an entirely new question that of apportionment, therefore, in the light of this ruling, the D. J. should not allow him to be made a party. There is some mis understanding in the mind of the learned counsel about the facts of the case. S. Ashraf Shah has not applied to the Reference Court for being made a party to the reference proceedings initiated by Muhammad Salim Gilani petitioner. It is correct that if a reference had been made on the application of Muhammad Salim petitioner who was dissatisfied with the amount of compensation awarded by the Collector and Ashraf Shah had come to the Reference Court and applied to it for being made a party to the proceedings initiated on the application of Muhammad Salim Gilani petitioner, it could be said that Muhammad Ashraf Shah wanted to enlarge the scope of the enquiry referred to the D J. by the Collector, but the position here is different. Muhammad Ashraf Shah is not being made a party to the proceedings initiated on the application of Muhammad Salim petitioner but the Collector on the application of Muhammad Ashraf Shah has made another reference under section 30 of the Land Acquisition Act to the D. J. and the learned D. J. is consolidating the two references and proceeding to decide both by framing the following issues in the matter of the reference made on the application of Muhammad Ashraf Shah:‑

(1) Whether Mst. Yaqubunnisa was divorced by Pir Hisamuddin and as such she is not entitled to any inheritance O. P. Muhammad Salim Gilani.

(2) Whether Muhammad Ashraf Shah is entitled to the apportionment as successor of Mst. Yaqubunnisa and to what extent O. P. Muhammad Ashraf Shah.

Learned counsel for the petitioner has not been able to show and in fact he has not put forth any argument on this point that the Collector when he has made a reference under section 18 on the application of one party, is barred from making a reference under section 30 on the application of another party.

Learned counsel for the petitioner argued that when the Collector has made an award under section 11 of the Acquisition Act the remedy of any person whether he was represented before the Collector or not is by way of making an application for a reference to the Reference Court under section 18 of the Land Acquisition Act and then in any case he has to come within 6 months of the date of the award when he was not represented before the Collector. The award was made by the Collector on 30‑8‑60. The period of 6 months expired on 28‑2‑1961 but Muhammad Ashraf applied to the Collector on 29‑3‑61 for making a reference. The application was clearly beyond the period of 6 months from the date of the award. As regards section 30 the learned counsel for the petitioner argued that the Collector can proceed under this section only when the amount of compensation has been settled under section 11 but not when there has been made a completed award under section 11. Under this section the Collector has to determine 3 things :‑

(1) the true area of the land

(2) the compensation which in his opinion should be allowed for the land ; and

(3) apportionment of such compensation money among all the persons known of believed to be interested in the land, whom, or of whose claims he has information, whether or not they have respectively appeared before him.

Learned counsel's contention is that it is only when the Collector has reached the second stage and before he has reached the third stage that he can make a reference under section 30. In the present case the Collector had by his award dated 30‑8‑60 also decided that Muhammad Salim alone is entitled to receive the compensation but the amount of compensation had not been paid to him yet. Learned counsel for the respondent relies on a passage in the commentary on the Land Acquisition Act by Om Parkash Aggarwafa. Third Edition, 1950 under section 30, on page 342, para. No. 2 wherein the learned Commentator expressing his opinion has remarked that where the Collector has not made a joint award but after he has made his award under section 11 and before he has made payment, a new person not previously before him appears and makes a claim‑Section 30 may be applicable.

There is no judicial authority one way or the other on the point whether a reference under section 30 can be made by the Collector when he has made an award in favour of one person and another person comes forward and makes a claim before payment has been made, to the apportionment of the compensation) awarded by the Collector. The opinion of the learned Commentator in the absence of any judicial authority is also relevant and I am disposed to agree with the learned Commentator because I think there is no other remedy available for a person who was not represented before the Collector and who comes forward only after the award has been made by the Collector under section 11.

The general principle of law is that when a special statute such as Land Acquisition, provides for a particular line of remedy, no other remedy is available to the party. The claimant dissatisfied with the award can only demand revision under this section (section 18). According to this Act, the Collector's proceeding would be final on the lapse of the period of limitation laid down in the proviso of section 1.8, subject to any later adjudication of the Reference Court on any reference that may have been applied for within this period. If a person omits to press any part of his claim before the Land Acquisition Court, the matter will become res judicata and cannot be litigated afresh in the Civil Court as held in 45 Mad. 320 ; 43 M L J 78 (P C). It is to be observed that the above remarks apply equally to persons whether they have appeared or not before the Collector or whether their names were included in the Collector's proceedings or not. In this view of the matter there is no other remedy available to the person who was not represented before the Collector but who had an interest in the apportionment of the compensation awarded by the Collector. I would go a bit further and say that the payment of compensation to one of the claimants is no bar to the Collector making a reference under section 30, Land Acquisition Act, the Act clearly contemplates that when there is a dispute as to apportion ment, the reference to the Civil Court under section 30 should be made before any payment has been made, still there is nothing in the Act that prohibits the Land Acquisition Collector from making the reference after the payment of compensation to one of the parties. When such a reference has been made it is undesirable that the party who succeeds in showing that the Collector's order was wrong should have resorts to a regular suit to compel the opposite‑party to refund the compensation to which he has been held not so entitled nor can the rights of the opposite‑party be in any way prejudiced by reduction of the litigation as was laid down in 22 C W N 816 ; 30 I C 253.

The main distinction between the reference under section 18 and a reference under section 30 is that under section 18 a party has a right to demand a reference to the Reference Court and the Collector is bound to make a reference if an application is made to him within the prescribed period, while under section 30 it is within the discretion of the Collector he may make a reference or he may not. There is another distinction for making a reference under section 18, there should be an application to the Collector made within the prescribed period while under section 30 0 the Collector may proceed even suo moto and there is no period of limitation prescribed. The Collector may make a reference even after the expiry of the period prescribed under section 18. When the Collector after the expiry of the period under section 18 makes a reference, obviously he is proceeding under section 30. It may be mentioned here that the Collector has after making the reference to the District Judge made payment to the petitioner which as already observed by me is no bar to the hearing of the reference.

It was brought to my notice by the learned counsel for the petitioner that a suit for a declaration and consequential relief of possession had been filed by Mst. Yaqubunnisa and is pending in the Court of the Sub‑Judge Muzaffarabad against all the heirs of the late Pir Hisamuddin. Learned counsel's argument was that the suit pending in the Court of the Sub‑Judge was sufficient to afford a relief to Mst. Yaqubunnisa or her heirs if she can succeed in that suit since the same covers the whole of the property left by the deceased. I have already observed that Land Acquisition Act prescribes a special remedy by way of reference under section 18 or 30 and the omission to pursue this remedy is a bar to a separate suit so far the amount of compensation in respect of land acquired by the Government for Eid Gah goes. This is within the exclusive jurisdiction of the District Judge. The Sub‑Judge has no jurisdiction over this item which is also covered by the plaint. The Sub‑Judge cannot hear this claim while the D. J. can hear and decide the suit pending in the Court of the Sub‑Judge. All the heirs of the late Pir Hisamuddin are before the Sub‑Judge but all of them are not before the D. J. A finding given by the learned D. J. on the question whether Mst. Yaqubunnisa had or had not been divorced by the late Pir Hisamuddin would not be binding on the other heirs of the late Pir Hisamuddin who are not party to the proceeding before the learned D. J. There is consequently a chance of conflicting findings being given on the question of divorce by the two Courts, therefore, in order to avoid this divergence of the findings and the multiplicity of proceedings I think that it would be in the interest of justice that both the suit and the reference proceedings are heard by the same Tribunal. The Sub‑Judge is not compe tent to try the reference proceeding while the D. J. is competent to try both. Therefore, under section 24, of C. P. C. it is ordered that Mst. Yaqubunnisa's suit for declaration and possession be transferred to the Court of the D. J., Muzaffarabad who shall try and decide both the suit and the reference proceedings simultaneously. It may be mentioned here that the parties were agreeable to this suggestion of mine and they loudly acclaimed the transfer of the suit to the Court of the District Judge, Muzaffarbad since such a transfer would result in a speedy disposal of the suit.

My view is that the Collector was competent to make a reference under section 30, Land Acquisition Act even after the expiry of the period of limitation prescribed under section 18, therefore, it cannot be said that the proceedings before the District Judge on the application of Syed Muhammad Ashraf are without jurisdiction. He has jurisdiction and there is no force in this revision petition which is dismissed. Costs shall abide the event.

K. B. A. Petition dismissed.

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