Bhandi Singh v. Ramadhin Roy Defendant — 1905 DIGILAW 126 (CAL)

JUDGMENT Stephen, J. - This is a second appeal from the decision of the Judge of Bhagulpore, that a suit which had been decreed in the original Court was not maintainable, and this is the only issue that we have to decide. The case arises out of proceedings under the Land Acquisition Act in which the Collector made an award that the Railway, for whom the land was acquired, should pay compensation of Rs. 61 odd to the first Defendant. Some of the Plaintiffs objecting to this award, so far as it ordered payment to the first Defendant, the Collector referred the matter to the Court under sec. 18 of the Act: and on the matter coming before the Judge in due course, it was struck off on the non appearance of the Plaintiffs. The first Defendant had by that time withdrawn the money. Do these facts give the Plaintiffs any cause of action? and is their claim res judicata 2. The simplest way to arrive at an answer to these questions is to consider what rights to a share in the compensation awarded were created at every step in the proceedings. Of these the first is the award under sec. 11. The effect of this is to settle all questions between the Collector and the parties interested, by force of sec. 12. As between parties having a right to a share in the compensation, the award does not, by force of sec. 31, affect the liability of any person who receives the whole or part of it, to pay it to the person lawfully entitled thereto. According to the judgment in Sri Punnabati Dai v. Padmanund Singh 7 C.W.N. 538 (1903) this leaves it open to any of the persons who appeared before the Collector to bring an action in the Civil Court to recover money awarded to any other person. We are not concerned with the effect of this decision in so far as it recognizes a right to sue in persons who were before the Collector; but it cannot be doubted that such a right exists in a person who was not, and who cannot be taken to have been, before him, as is fully borne out by the decision in the case we have just referred to and that in Raja Nilmoni Singh v. Ram Bandhu Rai ILR 7 Cal. 388, 393 (1881). 3. 388, 393 (1881). 3. We have next to consider the effect of the reference to the Court under sec. 18, and in particular in what capacity the Court acts in giving effect to the order. It is to be observed that the service of notices, and the appearance of advocates are regulated by secs. 20, 45 and 21 of the Act, which, when it is a question of the sufficiency of compensation that is referred, also lays down what matters the Court is to take into consideration, and what not. The decision of the Court is to be a "determination" [sec. 18 (1)], and the Court makes an "award" [sec. 25 (1)]. The Act also makes the CPC generally applicable to the proceedings of the Court, (sec. 53); and gives a right of appeal from the Court to the High Court (sec. 54). Under these circumstances is the Court when dealing with such a reference acting in its ordinary jurisdiction as a Court of justice, or is it merely a creature of the Act appointed to perform some of the duties, which, except in cases of dispute, are more conveniently discharged by the Collector ? The provisions I have referred to with the exception of the last, seem to point to the second alternative. Why should it, for example, be necessary to say that the proceeding is to take place in open Court, and that the advocates entitled to practise in the Court shall be entitled to appear, if the Court is sitting in its usual capacity ? On the other hand, the provisions made applicable to the hearing of the reference to the Court, do not seem applicable to a hearing of an appeal to the High Court. The language of the judgment in Raja Nilmoni Singh v. Ram Bandhu Rai I. L. R. 7 CM. 388, 393 (1881) (decided under the similar Statute, Act X of 1870) seems also to point in the same direction; for in the last paragraph the reference to the Court is referred to as a suit, and it is plainly laid down that the settlement of the amount and distribution of compensation by a competent Court is final, subject to the appeal as provided. This last feature alone seems to distinguish the proceedings of the Court from those of the Collector, and accepting the decision before referred to in Punnabati Dai v. Pudmanund Singh 7 C.W N. 538 (1903) the difference on which the distinction is founded seems to be that the former are and the latter are not, strictly judicial, a view which is at least consistent with the decision in Hurmut Jan Bibi v. Padma Lochun ILR 12 Cal. 33 (1885). 4. Taking it then that the Court acts judicially and in its ordinary capacity when hearing a reference under sec. 18 of the Land Acquisition Act, I think it is plain that on the non-appearance of the objectors the Court did right to dismiss their objections and that this decision is final. Had the reference been a suit in which the objectors were Plaintiffs it is not denied that the dismissal would have properly taken place under sec. 102 of the Code, and that such dismissal would have been a bar to a subsequent suit in which the objector's right to the money awarded to the Defendant No. 1 was in issue; that is to this suit. The reference was not a suit, the objectors were not Plaintiffs and the present Defendants were not Defendants then. But sec. 647 seems to me exactly to meet the case. By it the procedure prescribed in the Code is to be followed, as far as it can be made applicable, in any proceedings in any Court of civil jurisdiction other than suits and appeals. It is difficult, to see how a reference under the Land Acquisition Act can fail to be a proceeding under this section, and I have held the Court to be a Court of civil jurisdiction in this case. It is plain that the provisions of the Code are to be extended to meet certain cases not within the terms of the Act. It also seems to me that they ought to be extended so as to cover this case, treating the reference as a suit, the objector as a Plaintiff and Defendant No. 1 as a Defendant in that suit. The result of this is that I hold that by force of secs. 102 and 103 those of the Plaintiffs who made objection to the award of the Collector and who obtained a reference under sec. The result of this is that I hold that by force of secs. 102 and 103 those of the Plaintiffs who made objection to the award of the Collector and who obtained a reference under sec. 18 of the Land Acquisition Act are debarred from instituting the present suit. Against them therefore this appeal is dismissed with costs. 5. A question has been raised as to how many of the Plaintiffs did make such objection. One of them (No. 3) is a minor: another (No. 6) is stated by the Munsif not to be a party. The learned Judge however held that all the Plaintiffs being members of one family may be presumed to be members of a joint family; and that the uncle of the minor was kurta of the family. He was not however entitled as a matter of law to make either of these presumptions on the grounds on which he appears to have made them; and the other grounds stated for fixing Modun Prosad with liability as a party are not sufficient for that purpose. The case must therefore be remanded to the Judge for him to find on grounds other than those stated in the judgment whether the Plaintiff's Nos. 3 and 6 were parties to the reference; and if they were not, he must hear the arguments of the pleaders on the merits which we understand from the note appended to the judgment that he did not hear before. Costs in their case to abide the result. Mookerjee, J. 6. I agree with my learned brother that the decree made by the District Judge must be reversed and the case remitted to him for further consideration on the lines indicated in the judgment just delivered. 7. The Plaintiffs, Appellants, seek for a declaration that the land specified in the plaint is their khudkhast property, that the Defendant, first party, who claims to have acquired a raiyati right therein has no valid title to it, and they consequently ask for a decree against the Defendant for a refund of Rs. 61 which he has withdrawn from the Collectorate being the amount awarded as compensation for the land which has been acquired under Act I of 1894 for the purposes of a Railway. 61 which he has withdrawn from the Collectorate being the amount awarded as compensation for the land which has been acquired under Act I of 1894 for the purposes of a Railway. The Defendant resisted the claim on the ground amongst others that the suit was not maintainable in a Civil Court and that the only remedy open to the Plaintiff is what is prescribed in the Land Acquisition Act. The Munsif held that the suit was maintainable and upon the merits made a decree in favour of the Plaintiffs. Upon appeal the learned District Judge has dismissed the suit on the ground that it is not maintainable The Plaintiffs have appealed to this Court, and the only point argued on their behalf is that there is nothing in the Land Acquisition Act of 1894 which bars a suit of this description. The question is one of great importance, but before I deal with it, it is necessary to refer to some facts about which there is no dispute. It is conceded that Plaintiffs Nos. 3 and 6 were not parties to the land acquisition proceedings, and that the other Plaintiffs who were parties and who were dissatisfied with the apportionment made by the Collector got the matter referred to the Civil Court, but as they did not appear at the hearing, the proceeding was dismissed for default on the 10th August 1900. 8. The decision of the question raised before us must depend upon the construction to be placed upon the provisions of the Land Acquisition Act, the scope of which therefore necessarily requires careful examination. Sec. 9 provides for notice to persons interested in the land intended to be acquired and invites from such persons, claims to compensation. Sec. 11 then prescribes for an enquiry by the Collector and the award to be made by him, dealing with the area of the land, the compensation to be allowed therefore and the apportionment of such compensation among all persons known or believed to be interested in the land, of whom or of whose claims the Collector has information. Sec. 12, cl. Sec. 12, cl. (1), next lays down that the award shall be filed in the office of the Collector and unless challenged in the manner provided in the Act shall be final and conclusive evidence of the area and value of the land and of the apportionment of the compensation, with the important qualification that such finality is to be operative only as between the Collector and the persons interested. Sec. 18 deals with reference to Court at the instance of an objector, whether such reference is rendered necessary by reason of an objection 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 interested. Sec. 30 similarly authorizes the Collector in the event of a dispute as to the apportionment to make a reference to the Civil Court of his own motion. Secs. 20-28 describe the form and nature of the proceeding before the Civil Court and manifestly show that there is to be a judicial investigation which culminates in an award. Sec. 53 makes the provisions of the CPC generally applicable to all proceedings before the Land Acquisition Judge under the Act and sec. 54 gives a right of appeal against the award. The only other section to which it is necessary to make specific reference is sec. 31, cl. (2), the third proviso to which lays down 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. 31, cl. (2), the third proviso to which lays down 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. From this review of the principal provisions of the Act, three propositions are established beyond the possibility of dispute, namely, that the Statute creates a right in the Local Government to acquire land needed for public and other purposes, secondly, that it confers upon the private individual whose land is thus compulsorily acquired a corresponding right to receive compensation therefore, and thirdly, while the Act provides for a summary determination by the Collector of the area and the value of the land and of the apportionment of the compensation, it also provides for a judicial determination by a special Civil Court of the measurement of the land, of the amount of the compensation of the persons to whom it is payable, and of its apportionment among the persons interested. The question therefore arises whether under those circumstances, when statutory rights and liabilities have been created and jurisdiction has been conferred upon a special Court for the investigation of matters which may possibly be in controversy, is such jurisdiction exclusive or is it concurrent with that possessed by the ordinary Courts. In my opinion, such jurisdiction is exclusive and has to be exercised subject to the exception contained in the Statute itself; for it is an elementary rule of construction of Statutes, as stated by Lopes, L.J. in R.V. County Court Judge of (sic) 18 Q.B.D. 704 (708) (1887), that in the case of an Act which creates a new jurisdiction, a new procedure, new forms or new remedies, the procedure, forms or remedies there prescribed and no others must be followed. Substantially the same principle has been recognised in the case of Rama Chundra v. Secretary of State ILR 12 Mad. 105 (1888), where it was held upon the authority of Governor v. Meredith 4 T.R. 794 (1792), Stevens v. Jeacocke 11 Q.B. 731 (1848), and West v. Downman 14 Ch. Substantially the same principle has been recognised in the case of Rama Chundra v. Secretary of State ILR 12 Mad. 105 (1888), where it was held upon the authority of Governor v. Meredith 4 T.R. 794 (1792), Stevens v. Jeacocke 11 Q.B. 731 (1848), and West v. Downman 14 Ch. D. 111 (1880), that when by an Act of the legislature, powers are given to any person for a public purpose from which an injury results to an individual, if the mode of redressing the injury is pointed out by the Statute, the jurisdiction of the ordinary Courts is ousted and the party cannot proceed by action but must avail himself of the specific remedy provided by the Statute. This view is also supported to some extent by the decision of the Judicial Committee in Raja Nilmoni Singh v. Ram Bandhu ILR 7 Cal. 388 (1881), where it was held that it would not be reasonable to permit a person whose claim under the Land Acquisition Act of 1870, had been adjudicated on in the manner pointed out by the Act, to have that claim reopened and reheard in another suit. This position appears to me to be unquestionably right on principle; if it were not for the Statute, the Local Government would not have any authority to acquire private property for public purposes without the consent of the owners thereof, but it is a primary requisite in the appropriation of lands for public purposes, that, compensation shall be made therefor and consequently it was inevitable that the Statute should provide for some tribunal for the assessment of the compensation; where such tribunal has been provided, upon what principle can it be contended that recount need not be bad to the Court invested with special jurisdiction, but that the rights which would be non-existent without the Statute may be litigated in the ordinary Courts. In my opinion the jurisdiction of the special Court ought to be regarded as exclusive; see Sedgwick on the Construction of Statutory Law, 2nd Edition, pp. 341, 464, where it is shown that this position is supported by high authority and reference is made to Brown v. Beatty 84 Miss. 227 : 69 Ana. Dec. 389, in which Smith, C.J., following the observations of Lord Truro, L.C., in London and N.W.R. Co. v. Bradley 8 Mac. 341, 464, where it is shown that this position is supported by high authority and reference is made to Brown v. Beatty 84 Miss. 227 : 69 Ana. Dec. 389, in which Smith, C.J., following the observations of Lord Truro, L.C., in London and N.W.R. Co. v. Bradley 8 Mac. and G. 336 (1851), held that where in cases of compulsory acquisition of land, a certain form of proceeding has been prescribed and a certain tribunal has been created for the determination of the right to and the award of the compensation the parties are confined to the remedy prescribed; to the same effect are the cases of Hickox v. Cleveland 8 Ohio 543 : 32 Aw. Dec. 730 and Aldrich v. Cheshire 21 N.H. 359 : 53 Am. Dec. 212 which are authorities for the proposition that where the Statute itself provides the mode of assessment and payment of compensation due to the exercise of the right of eminent domain, no separate suit can be maintained for that purpose. If now these principles be applied to the case before us the inference is obvious that any of the four questions which may be raised upon the award of the Collector under sec. 18, cl. (1), must be tried by the principal Civil Court of Original Jurisdiction or by the special judicial officer possessing jurisdiction to deal with the reference made by the Collector. Here, however, a difference arises between the objection relating to the measurement of the land or the amount of the compensation and an objection relating to the person to whom the compensation is payable or its apportionment among the persons interested and this distinction is founded on the third proviso to sec. 31, cl. (2), which as I have already stated, saves the liability of a person who may have received the whole or any part of the compensation awarded under the Act, to pay the same to the person lawfully entitled thereto. The effect of this proviso, to my mind is, that whereas an objection as to the measurement of the land or the amount of the compensation payable therefor must be determined exclusively by a reference to the Civil Court under sec. 18, cl. The effect of this proviso, to my mind is, that whereas an objection as to the measurement of the land or the amount of the compensation payable therefor must be determined exclusively by a reference to the Civil Court under sec. 18, cl. (7), a question relating to the persons to whom the compensation is payable or its apportionment among the persons interested may be determined either under a reference as contemplated by sec. 18, cl. (1), or by a suit at the instance of a person who may be lawfully entitled to it as against another, who has withdrawn the compensation money either without any right or in excess of his just dues. This distinction is based and may be justified upon a broad and intelligible principle. As regards a dispute relating to the measurement to the land and the amount of compensation to be paid therefor, the Collector, as representing the authority for whom the acquisition is made, would be the opposing party; his rights and liabilities are entirely statutory and he may justly claim that they should be determined in the forum specially created for the purpose. On the other hand, in the event of a dispute as to the persons to whom the compensation is payable or its apportionment amongst them proportionate to their respective interests the Collector would not have any concern whatsoever; and even without the Statute if, when land which belongs to A. and B. has been converted into money, A. takes more than his share of the proceeds, B. would be entitled according to the rule of justice, equity and good conscience to demand restitution from A. I must hold accordingly that in the case of a dispute as to the persons among whom the compensation is to be apportioned, or the extent of their interests, the Land Acquisition Judge and the ordinary Civil Court have practically concurrent jurisdiction, by reason of the third proviso to sec. 31, cl. (2), read with sec. 18 of the Act. This however necessarily leads to the position, that if a litigant has made his choice and availed himself of a reference to the Court under sec. 18, he cannot again ask for an opportunity to litigate the same matter in the ordinary Court; the dicision of the Judicial Committee in Raja Nilmoni Singh v. Ram Bandhu ILR 7 Cal. 388 (1881), clearly supports this view. 18, he cannot again ask for an opportunity to litigate the same matter in the ordinary Court; the dicision of the Judicial Committee in Raja Nilmoni Singh v. Ram Bandhu ILR 7 Cal. 388 (1881), clearly supports this view. On the other hand, if there has been no reference to the Court under sec. 18, a suit would be maintainable for the adjudication of the rights of the claimants inter se, because sec. 12 to which I have already referred makes the award of the Collector final and conclusive only as between himself on the one hand and the persons interested on the other and not as between the claimants inter se. This view is in accordance with that taken by the Court in the case of Punnabati v. Padmanund 7 C.W.N. 538 (1903), and is substantially in agreement with the decision in Hurmut Jan v. Padma Lochun ILR 12 Cal. 33 (1885) which arose upon the construction of the provisions of secs. 39 and 40 of Act X of 1870. The learned vakil for the Appellant has, however, strenuously endeavoured to take the present case out of the principle deducible from the decisions just referred to and he has principally relied upon the circumstance that in the present instance the reference to the Court under sec. 18 proved ineffectual, because the proceedings were dismissed for want of prosecution and there was no adjudication on the merits. This circumstance, however, appears to me to be wholly immaterial. Under sec. 53 of Act I of 1894 all the provisions of the CPC are made applicable to proceedings before the Court under the Act except in cases where there may be any inconsistency. It is clear, therefore, that sec. 647, C.P.C, is applicable to proceedings before the Land Acquisition Judge and consequently the provisions of secs. 102 and 103 are also applicable. It has been ingeniously suggested how ever by the learned vakil for the Appellant that sec. 102 by its very terms is inapplicable because it speaks of a suit in which there is a Plaintiff and a Defendant, whereas in a proceeding upon a reference to the Court under sec. 18 there is no Plaintiff or Defendant. This argument is obviously fallacious. The party at whose instance the reference is made under sec. 102 by its very terms is inapplicable because it speaks of a suit in which there is a Plaintiff and a Defendant, whereas in a proceeding upon a reference to the Court under sec. 18 there is no Plaintiff or Defendant. This argument is obviously fallacious. The party at whose instance the reference is made under sec. 18 is virtually the Plaintiff and if the objection relates to the measurement of the land and the amount of the compensation, the Collector is the Defendant, whereas if the question is as to the persons to whom the compensation is payable or its apportionment, the person who disputes the claim of the Plaintiff substantially occupied the position of the Defendant. When therefore a reference was made under sec. 18 at the instance of some of the present Appellants and they did not appear at the time the case was taken up for adjudication, it must be assumed to have been rightly dismissed under Sec. 102, C.P.C, and they are precluded by sec. 103, C.P.G. from bringing a fresh suit upon the same cause of action. It follows therefore that such of the Plaintiffs as by written application to the Collector obtained a reference to the Court under sec. 18 of Act 1 of 1894, are not entitled to maintain the present action; so far as they are concerned the suit has been rightly dismissed and to this extent the decree of the District Judge must be upheld. In so far however as Plaintiffs Nos. 3 and 6 are concerned, there is nothing to show that they obtained a reference under sec. 18 and consequently, as regards them, the appeal must be allowed, the decree of the District Judge reversed and the case remitted to him for further consideration.