Laldeen v. State of Rajasthan — 1982 DIGILAW 150 (RAJ)

S.K. MAL LODHA, J—This is a petition under Arts. 226 and 227 of the Constition of India by Laldeen for quashing the order (Ex.10) dated January 24, 1976, by which, the Land Acquisition Officer, Jaisalmer declined to make a reference under s. 18 of the Rajasthan Land Acquisition Act (No. XXIV of 1953) (for short the Act hereinafter) . 2. A few facts leading to this writ petition may briefly be recounted here. The award (Ex. 8) dated March 20, 1975 was made by the Land Acquisition Officer, Jaisalmer in respect of the well situate in Khasra No. 77 of village Hawatala which was acquired and handed over to military authorities for the purpose of establishing of Field Firing Range. The amount determined was Rs. 10, 930. 70P as detailed in the award (Ex.8). A direction was made by the Land Acquisition Officer that as the compensation relates to the public property, it should be placed at the disposal of the Collector, Jaisalmer for public utilities. 3. An application (Ex.9) under s.18 of the Act was made by the petitioner before the Land Acquisition Officer (Collector), Jaisalmer for making a reference to the court concerned. The Land Acquisition Officer declined to make the reference and rejected the application vide order (Ex.10) dated January 24, 1976 on the ground that the petitioner has not shown any new ground regarding his title to the property acquired and the proof had already been completely examined at the time of award. The petitioner filed this writ petition on March 31,1976, inter alia, praying that the order (Ex. 10) dated January 24, 1976 may be quashed and the non-petitioners may be compelled to make a reference to the District Judge, Jodhpur under s. 18 of the Act. 4. On behalf of the State of Rajasthan, a reply was filed on September 1, 1976 opposing the writ petition on various grounds. One of the preliminary objections raised was regarding the maintainability of the writ petition. It was contended that the petitioner had an alternative remedy by way of revision under s.18 (3) of the Act which he failed to avail and, therefore, this Court should not invoke its extraordinary jurisdiction under Art. 226 of the Constitution of India. 5. I have heard Mr. H.C. Jam, learned counsel for the petitioner and Mr. M.D. Purohit, learned Additional Government Advocate. 6. Mr. 5. I have heard Mr. H.C. Jam, learned counsel for the petitioner and Mr. M.D. Purohit, learned Additional Government Advocate. 6. Mr. H.C. Jain, learned counsel for the petitioner contended that the Land Acquisition Officer has failed to exercise jurisdiction vested in him by law when he refused to make a reference under s. 18 of the Act and rejected the petitioners application, for, on fulnlment of the conditions laid down in s.18 of the Act, he was bound to make the reference to the Court concerned. In support of his argument, Mr. H.C. Jain, learned counsel for the petitioner has invited my attention to Jagarnath Vs. L. A. Deputy Collector (1), Rampratap vs. Revenue Minister (2), Prahlad Pd. vs. T. F. Kumari (3), Kasiviswanadham vs. Sub-Collector (4), P.M. Association vs. Collector, Anantapur (5) and Sugandhi vs. Collector, Raipur (6). 7. S.18 of the Act is as under: "18. Reference to Court.—(1) The Government Department on whose behalf (or the Company for which) acquisition is being made or any person interested who has not accepted the award or the amendment thereof 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 amount of costs allowed, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award or the amendment thereof is taken: Provided that every such application shall be made,— (a) if the person making it was present or represented before the Collector at the time when he made his award or the amendment thereof, within six weeks from the date of the Collectors award or the amendment thereof, and (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), within six months from the date of Collectors award or the amendment thereof whichever period shall first expire. (3) Any order made by the Collector on an application made under this section shall be subject to revision by the High Court as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code." Subs. (3) Any order made by the Collector on an application made under this section shall be subject to revision by the High Court as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code." Subs. (1) of S. 18 of the Act corresponds to s. 18 (1) of the Land Acquisition Act, (No.1 of 1894). 8. No useful purpose will be served by examining the aforesaid authorities in detail, for, there is an authoritative pronouncement of the Supreme Court in Md. Nasruddin vs. State of Maharashtra (7), where s. 14 (1) of the Hyderabad Land Acquisition Act (1809F) in parinateria with the provisions of S.18 of the Land Acquisition Act (No. 1 of 1894) came up for consideration. His Lordships A.P. Sen, J., with whom their Lordships Jaswant Singh and R. S. Pathak, JJ. agreed observed as under: "The word require in S.18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under S.18 on the fulfilment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award". 9. Keeping in view the principles laid down in Md. Nasruddins case (supra), let me now proceed to examine the order (Ex 10) dated January 24,1976 by which the Land Acquisition Officer refused to make the reference under s. 18 (1) and rejected the application of the petitioner. The reasons mentioned by the Land Acquisition Officer in the impugned order are that the reference pertains to a public property and that the petitioner (claimant) has not shown any new ground in support of his claim and the proof given by him has already been completely examined at the time of making the award. To quote the Land Acquisition Qfficer:- ^^;g lkoZtfud lEifr dk jsQjsUl gSA mtjnkj us vius gksus dk dksbZ u;k vk/kkj ugha crk;k gS rFkk lcwr ,okMZ nsrs le; iw.kZr;k ns[kk fy;k x;k gSA** What the Land Acquisition Officer was required to examine was whether the petitioner (claimant) has properly complied with the provisions of s. 18 of the Act. To quote the Land Acquisition Qfficer:- ^^;g lkoZtfud lEifr dk jsQjsUl gSA mtjnkj us vius gksus dk dksbZ u;k vk/kkj ugha crk;k gS rFkk lcwr ,okMZ nsrs le; iw.kZr;k ns[kk fy;k x;k gSA** What the Land Acquisition Officer was required to examine was whether the petitioner (claimant) has properly complied with the provisions of s. 18 of the Act. In other words, the Collector is required to decide whether the application presented by the claimant is or is not within time and satisfies the conditions laid down in S. 18. While considering the application under s. 18 of the Act, the Collector should not examine the merits of the application. It is not open to the Collector to decide an application under s. 18 on merits of the objections raised therein and then refuse to refer the matter to the Civil Court. There is no discretion of the Collector in the matter, if the conditions under s. 18 are fulfilled. The Land Acquisition Officer had, thus, acted illegally in rejecting the application on the grounds on which he did. It was incumbent on the Land Acquisition Officer to have made a reference under s. 18 of the Act, if the conditions laid down therein were properly complied with. He could not refuse to make a reference on his own finding which was arrived at by him at the time of award. 10. Mr. M.D. Purohit, learned Additional Government Advocate pressed that the petitioner had an alternative remedy by way of revision under s. 18(3) of the Act which was not availed of and, therefore, the extraordinary jurisdiction under Arts. 226 and 227 of the Constitution should not be invoked. The learned Additional Government Advocate has placed reliance on State Vs. L. A. Collector, Kapurthala (8) wherein the learned Judge observed that when a specific remedy has been provided by the Statute itself that should have been availed of by the petitioner and that simply because the petitioner was negligent in not doing so, it cannot be permitted to bypass the Statute by moving a petition under Article 227 of the Constitution at the belated stage. It may be stated here that in that case, the limitation for filing a revision against the order passed under s. 18(1) had expired and finding the difficulty regarding limitation, the State of Punjab thought of moving the High Court under Art. 227 of the Constitution. In those facts, the learned Judge declined to interfere with the order under challenge in exercise of his writ jurisdiction. It is well settled by a catena of cases of the Supreme Court that the rule that when there is an adequate alternative remedy, the High Court will not interfere under Art. 226 of the Constitution is only a rule of discretion and expediency and not one of jurisdiction or limitation on the powers of the High Court. It is not an absolute rule that in all cases where there is an alternative remedy available, the High Court will not exercise its powers under Art. 227 of the Constitution. The High Court may in exceptional cases issue a writ notwithstanding the fact that the statutory remedies have not been exhausted. This will depend on the facts of each case and the wrong and illegality alleged. 11. It was observed by their Lordships of the Supreme Court in Collector of Customs, Cochin vs. AS. Bava (9) as under: "It is settled, that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Article 226 of the Constitution." A somewhat similar question with which I am concerned in this writ petition also arose before a learned Judicial Commissioner in Smt. Sampuran Kaur vs. Collector Land Acquisition, Solan (10), wherein he opined that even if it be assumed that an application in revision lies against an order of the Land Acquisition Collector rejecting a petition under s. 18 of the Land Acquisition Act for reference made by a claimant, a petition challenging the order under Arts. 226 and 227 of the Constitution of India a would lie in the High Court. It will be relevant to quote the following observations of the Judicial Commissioner; " ......... and jurisdiction exercised by a High Court under Arts. 226 and 227 is more or less akin to the jurisdiction exercised by it on the revision-al side and the existence of the power of revision cannot be put a bar to the exercise of powers under Arts. and jurisdiction exercised by a High Court under Arts. 226 and 227 is more or less akin to the jurisdiction exercised by it on the revision-al side and the existence of the power of revision cannot be put a bar to the exercise of powers under Arts. 226 and 277 of the Constitution of India." I respectfully agree the view taken in Smt. Sampuran Kaurs case (supra). Apart from the fact that States case (supra) is distinguishable on facts, it may be stated that if it is taken to lay down that a petition under Arts. 226 and 227 of the Constitution cannot be entertained challenging the order of refusal of a reference application under s. 18(1) of the Land Acquisition Act. I regret, I have not been able to persuade myself to subscribe to that view. In the case on hand, the exceptional circumstances are (l)that the writ petition was filed within the prescribed time for revision, (2) that the revision against the impugned order also lay to this Court, (3) that the writ petition was admitted on April 5, 1976 and (4) that the illegality committed by the Land Acquisition Officer in rejecting the application which has resulted in miscarriage of justice. For all these reasons, I am disposed to think that bar of alternative remedy should not come in the way of the petitioner. The argument of the learned Additional Government Advocate that because of an alternate remedy of revision, the writ petition should not be entertained is, therefore, repelled. 12. No other point was pressed by any of the learned counsel for the parties. 13. The upshot of the above discussion made hereinabove is that the Land Acquisition Officer while passing the order (Ex. 10) dated January 24, 1976 has acted illegally in rejecting the application under s. 18 of the Act, for, if the conditions under s. 18 of the Act were properly complied with he was bound to make the reference to the court concerned. 14. The result is that the writ petition is allowed and the order (Ex. 10) dated January 24, 1976 declining to make the reference under s. 18(1) of the Act and dismissing the application (Ex. 14. The result is that the writ petition is allowed and the order (Ex. 10) dated January 24, 1976 declining to make the reference under s. 18(1) of the Act and dismissing the application (Ex. 9) filed by the petitioner is set aside and the Land Acquisition Officer, Jaisalmer/ Collector, Jaisalmer is directed to determine whether the application (Ex.9) complies with the statutory conditions laid down in s. 18 inclusive of the one regarding limitation and if he comes to the conclusion that the application (Ex. 9) was within time and also fulfils the conditions laid down therein, he will make a reference under s. 18 of the Act. 15. In the circumstances of the case, the parties shall bear their own costs.