judgement:
Appeals Nos. 262 to 264 of 1964.
Appeals from the judgment and decrees dated January 5, and January 22, 1959, and 24th November 1960 of the Patna High Court in appeals from Original Decrees Nos. 401 of 1953, and 297 and 298 of 1954 respectively.
S.R. Ghosal and R.C. Prasad, for the appellant (in all the appeals).
D.P. Singh, R.K. Garg, S.C. Agarwala and M.K. Ramamurthi for the respondent (in all the appeals).
SUBBA RAO.
J. delivered a dissenting opinion.
The Judgment of SHAH, and BACHAWAT JJ. was delivered by SHAH J. Subba Rao, J. I regret my inability to agree with brother Shah, J., on one of the questions raised in the appeals, namely, whether the Land Acquisition Officer can, after making the award under section 12 of the Land Acquisition Act, 1894, hereinafter called the Act, fixing the compensation for the land acquired and apportioning the same among the persons interested in the land, refer the question of apportionment under section 30 of the Act to the decision of the Court.
Shah, J., held he could; but, with great respect to him, I take a different view.
The facts are fully stated in the judgment of Shah, J., and they need not, therefore, be restated here.
The answer to the problem raised falls to be decided on a conspectus of the relevant provisions of the Act.
Section 9 of the Act enjoins on the Collector to cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land ', and that claims to compensation for all interests in such land may be made to him; under sub section
(2) thereof such notice shall state the particulars of the land so needed and shall require persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned and to state the nature of their respective interests in the land and the amount and, particulars of 579 their claims to compensation for such interests, and their objections, if any, to the measurements made under section 8.
Under section 11, on the day fixed or on any other day to which the enquiry has been adjourned, the Collector shall proceed to make an enquiry and shall make an award under his hand of (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he had information, whether or not they have respectively appeared before him.
Under section 12, "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. ' ' The group of sections, viz, sections 9 to 15, describes the subject matter and the nature of the enquiry to be held by the Collector and ' provides for the making of the final award in respect of the said subject matter; ss.18 to 28 provide for reference to Court and the procedure to be followed therein in respect thereof.
Sections 29 and 30 fall under part IV of the Act under the heading "Apportionment of compensation".
As the decision mainly turns upon these provisions, it will be convenient to read them in full.
Section 29.
Particulars of apportionment to be specified Where there are several persons interested ', if such persons agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the apportionment.
Section 30.
Dispute as to apportionment When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.
While section 11 imposes a statutory duty on the Collector to enquire in respect of the three matters mentioned therein, sections 29 and 30 deal with the manner of deciding the dispute in respect of one of the said matters, viz., apportionment of the compensation fixed; under section 29, if the claimants agree in the apportionment of the compensation, the agreed particulars shall be specified in the award and the said award is final as between them.
It is manifest that this agreement necessarily refers to the apportionment to be made under section 11 before the award is made, for the section in terms says that the agreed particulars shall be entered ' in the award.
If there is no such agreement, section 30 comes into play.
It also refers to a stage after the compensation has been settled and before the apportionment is made and included in the award.
If there was no agreed formula, the Land Acquisition Officer has the discretion, presumably when 580 there is a complicated question, to refer the dispute in respect of the apportionment to the Court.
But he need not do so if he thinks fit to decide the dispute for himself.
The Land Acquisition Act discloses a well knit scheme in the matter of making an award.
The Land Acquisition Officer, after issuing notice calling for objections, decides on the three matters prescribed in section 11, i.e., the true area of the land, the amount of compensation and the apportionment of the compensation.
Before making the apportionment of the compensation he can resort to any of the following three methods: (i) to accept an agreed formula; (ii) to decide for himself; and (iii) to refer to the Court if he thinks that the decision of the Court is necessary.
But once the award is made, it becomes final and it can be reopened only in the manner prescribed, i.e., by way of a reference under section 18 of the Act.
This construction makes for the smooth working of the provisions of the Act and does not lead to any anomalies.
It also does not affect the right of the aggrieved parties to proceed in the manner prescribed by the Act for getting the award vacated or modified ', as the case may be.
It is said that if this view be accepted, a person who acquires a right after the award by transfer inter vivos or by devolution of interest will be without a remedy.
I do not see any difficulty in that regard.
Under section 18 he may ask for a reference.
He may apply to be brought on record after the reference is made to the Court.
It may also be that he may proceed in a civil Court to recover the compensation from the persons who received ' it on the basis of his title.
On the other hand, the contrary view will lead to an incongruous position.
It enables the Land Acquisition Officer to reopen a final award in the teeth of the express provisions of section 12 of the Act.
It further enables him to make a reference without any period of limitation and thus to disturb the rights finally settled by the award.
I, therefore, hold that the Land Acquisition Officer cannot make a reference under section 30 of the Act in the matter of apportionment of compensation after the award has been made by him apportioning the compensation under section 11 and ' has been filed under section 12 thereof.
During the course of the arguments it was suggested that as the interest of Dr. Grant devolved on the Government it may be held that the Government was in substance brought on record in the place of Dr. Grant in the reference made under section 18 of the Act to the District Court.
But the point was not raised at any stage of the proceedings.
Indeed no application was filed in the District Court for bringing the Government on record in the place of Dr. Grant.
In the circumstances I am not justified ' in permitting the respondent to raise the said point for the first time before this Court.
In the result, I set aside the decision of the High Court and restore that of the District Court.
The appellant will have his costs throughout.
581 Shah, J. Dr. Gregor Hug Grant hereinafter called 'Dr. Grant ' was the proprietor of the Dumka Estate in the District of Santhai Parganas in the State of Bihar.
By a notification under section 4(1) of the Land Acquisition Act, 1894 published on June 8, 1949 the Government of Bihar notified for acquisition a larger area of land out of the estate of Dr. Grant for establishing "an agricultural farm.
" The Collector made on March 25, 1952 awards setting out the true area of the land notified for acquisition, compensation which in his opinion should ' be allowed for the land and apportionment of the compensation among all the persons known or believed to be interested in the land.
The awards were filed in the Collector 's office on the same day.
In respect of Plot No. 142, Rs. 575/14/were awarded by the Collector as compensation in equal shares to Dr. Grant and the members of the village community, who had also made a claim for compensation.
In respect of Plot No. 68, the Collector awarded Rs. 294/6/ as compensation.
In respect of acquisition of an area admeasuring 88.91 acres consisting of several plots, the Collector awarded Rs. 1,64,446/5/10 as compensation and directed apportionment in the manner set out in the award.
On May 5, 1952 Dr. Grant applied to the Collector under section 18 of the Land Acquisition Act that the three matters be referred for determination by the Court of the amount of compensation payable to the owners.
Similar applications were filed in respect of Plot Nos. 68 & 142 by the members of the village community.
In consequence of a notification issued under section 3 of the Bihar Land Reforms Act 30 of 1950 the Dumka Estate vested on May 22, 1952 in the State of Bihar.
In exercise of the power under section 16 of the Land Acquisition Act, the Government of Bihar took over possession on August 21, 1952 of the Lands notified for acquisition.
On October 15, 1952 the Government Pleader submitted a petition before the Collector claiming that the compensation money awarded to Dr. Grant had since the publication of the notification under the Bihar Land Reforms Act become payable to the State Government, and the dispute between Dr. Grant and the State Government regarding the right to payment may be referred to the Court under section 30 of the Land Acquisition Act.
The Collector made on November 5, 1952 three references to the District Court, Santhai Parganas.
Two out of those references were made in exercise of powers under sections 30 & 18 of the Land Acquisition Act, and the third under section 30.
The District Judge by his order dated April 9, 1954 held that the State of Bihar had no interest in the property notified for acquisition when the award was filed before the Collector under section 12 of the Land Acquisition Act, and the State could, lay no claim to the compensation money awarded.
The District Judge upheld the apportionment of compensation between Dr. Grant and the village community and enhanced the valuation of the land and directed that compensation at the enhanced rate be awarded.
582 Against the order of the District Judge in the references, three appeals Nos. 401 of 1953, 2c)7 of 1954 and 298 of 1954 were preferred by the State to the High Court of Judicature at Patna.
The High Court held that title of the owner to the land acquired under the Land Acquisition Act could not be extinguished under that Act till possession was taken under section 16 of the Act, and that since the title of Dr. Grant in the land acquired stood statutorily vested in the State by virtue of the notification issued under the Bihar Land Reforms Act, he was not entitled to receive the compensation money.
In the view of the High Court, title to the compensation money had vested in the State Government before possession was obtained by the State Government under section 16 of the Land Acquisition Act, and that it was open to the Collector, on a dispute raised by the State about the right to receive the compensation money, to make a reference to the Court under section 30 of the Act.
With certificate granted by the High Court, these three appeals have been preferred by Dr. Grant.
Three contentions have been urged in support of the appeals: (1) the Collector had no authority to refer the matter under section 30 after he had apportioned the amount of compensation under section 11 (2) since title to compensation is derived solely from and on the date of the award, the notification under section 3 of the Bihar Land Reforms Act did not deprive Dr. Grant of his right to receive compensation, and (3) the State Government was not "a person interested" within the meaning of the Land Acquisition Act, and could not apply for a reference under section 30.
After a notification is issued under section 6 of the Land Acquisition Act, the appropriate Government may acquire the land notified in the manner set out in sections 7 to 16.
Section 9 provides for an enquiry into the area of the land, into compensation which is payable and apportionment of compensation.
The Collector is by section 11 authorised to make an award setting out the true area of the land, the compensation which, in his opinion, should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, or of whose claims, he has information, whether or not they have respectively appeared before him.
The award when filed in the Collector 's office becomes 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 compensation among the persons interested.
The land vests absolutely in the Government, free from all encumbrances when possession is taken by the Collector under section 16.
By section 17 authority is conferred upon the Collector, when in cases of urgency the appropriate Government so directs, to take possession of waste or arable land even before making an award.
Section 48 authorises the Government to withdraw from the acquisition any land of which possession has not been taken.
583 By section 18 the Collector is enjoined to refer to the District Court for determination, objections as to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment thereof among the persons interested.
Part IV deals with apportionment of compensation.
If the persons interested agree in the apportionment of the compensation, the particulars of such apportionment shall be specified in the award (section 29): if there be no such agreement, the Collector may, if a dispute arises as to the apportionment of the compensation or any part thereof or as to the persons to whom the same or any part thereof is payable, refer such dispute under section 30 for decision by the Court.
Part V of the Act which contains sections 31 to 34 deals with payment of compensation.
Under section 31 the Collector has to tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award.
By the third proviso to sub section
(2) of section 31, liability of any person, who may receive the whole or any part of the compensation awarded under the Act, to pay the same to the person lawfully entitled thereto, is not affected.
Sections 32 & 33 deal with investment of money deposited in respect of land belonging to persons incompetent to alienate the land and ' in other cases, but with these we are not concerned.
Section 34 obliges the Collector to pay interest at the rate of six per centum per annum if compensation is not paid or deposited on or before taking possession of the land from the time of taking possession until it is so paid or deposited '.
There are two provisions sections 18(1) and 30 which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable.
By sub section
(1) of section 18 the Collector is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed ' by sub section
(2) of that section of a person interested who has not accepted the award.
Section 30 authorises the Collector to refer to the Court after compensation is settled under section 11, any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable.
A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under sub section
(2) of section 12, must, if he does not accept the award, apply to the Collector within the time prescribed under section 18(2) to refer the matter to the Court.
But a person who has not appeared in the acquisition proceeding before the Collector may, if he is not served with notice of the filing, raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference under section 30, for determination of his right to compensation which may have existed before the award, or which may have develoved upon him since the award.
Whereas under section 18 an application made to the Collector must be made within the period prescribed by sub s.(2) cl.
(b), there is no such period 584 prescribed under section 30.
Again under section 18 the Collector is bound to make a reference on a petition filed by a person interested.
The Collector is under section 30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared.
by his award.
We are unable to agree with the view expressed by the Mysore High Court in Boregowda and another vs Subbaramiah and others that if the Collector has made apportionment of the compensation money by his award his power to refer a dispute under section 30 cannot be exercised.
Clause (iii) of section 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land: he has ' no discretion in the matter.
Exercise of the power under section 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may, but is not bound to exercise that power.
It is however not predicated of the exercise of that power that the Collector has not apportioned the compensation money by his award.
We are also unable to agree with the Mysore High Court that the power under section 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by section 18(2) of the Land Acquisition Act.
In our judgment the powers exercisable by the Collector under section 18(1) and under section 30 are distinct and may be invoked in contingencies which do not overlap.
By virtue of the notification issued under the Bihar Land Reforms Act the right of Dr. Grant vested in the State of Bihar.
On March 25, 1952 when the Collector made an award under section 11, the only persons interested in the award were Dr. Grant and the members of the village community, but the title of Dr. Grant in the land notified for acquisition stood, by operation of the Bihar Land Reforms Act, transferred as from May 22, 1952 to the State of Bihar.
A dispute then arose between the State Government and Dr. Grant "as to the persons whom" compensation was payable.
The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector, and no application for reference could be made by the State, as a person interested within the meaning of section 18(1).
The title of the State to receive compensation arose only when in consequence of the notification under section 3 of the Bihar Land Reforms Act, the title of Dr. Grant to the Estate was divested.
An award by the Collector is strictly speaking an offer made to the person interested in the land notified for acquisition: the latter may accept the offer, but is not bound to accept it.
He may ask for a reference to the Court for adjudication of his claim for adequate compensation.
The person interested may even accept (1)A.I.R. 585 the compensation under protest as to the sufficiency of the amount and ask for a reference.
It is also open to the Government, even after the award is made, but before possession is taken, to withdraw from acquisition of any land in exercise of the powers conferred by section 48 of the Land Acquisition Act.
It is therefore not the award of the Collector which is the source of the right to compensation: the award quantifies the offer of the appropriate Government, which is made because the Government has taken over, or intends to take the land of the owner under the authority conferred by the Land Acquisition Act.
In Serju Prasad Sahu vs The State of Uttar Pradesh and Others(1) it was observed by this Court in considering the scheme of the Act that the right of the owner of the land is extinguished when Government takes possession of the land after an award of compensation is made.
This is also supported by the scheme of the Act.
Interest is made payable under section 28 on the additional amount of compensation awarded by the Court from the date on which the Collector had taken possession.
Similarly under section 34 interest is made payable on the compensation from the date on which the possession is taken, if the same be not paid or deposited on or before taking possession of the land.
The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act.
There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under section 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation.
If after a reference is made to the Court, the person interested dies or his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted.
In Promotha Nath Mitra vs Rakhal Das Addy(2) it was held that a reference made by the Collector under section 30 of the Land Acquisition Act at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction.
If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award.
The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted.
Jurisdiction of the Court in this behalf is not restricted (1)A.I.R. (2) 586 to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled ' to receive compensation, and there is nothing in section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved.
It was strongly pressed that under section 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled ' thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and therefore the only persons who can raise a dispute under section 30 are those whose names are set out in the award.
This contention stands refuted by the plain terms of section 30.
The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land.
In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him.
But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested.
The Collector has no power to finally adjudicate upon the title to compensation, that dispute has to be decided either in a reference under section 18 or under section 30 or in a separate suit.
Payment of compensation therefore under section 31 to the person declared by the award to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under section 30 or by a separate suit.
The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision.
Under the Bihar Land Reforms Act, the title of Dr. Grant to the Land notified for acquisition became vested ' in the State, and there fore the right to compensation for the land acquired devolved upon the State.
A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under section 30 of the Land Acquisition Act to the Court and was in fact referred to the Court.
We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under section 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made.
The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the 587 State was a person interested ' in the compensation money before the date of the award, but because of the right which has arisen since the award was made.
We therefore dismiss the appeals with costs There will be one hearing fee.
ORDER Following the judgment of the majority, the appeals are dismissed with costs.
There will be one hearing fee.

summary:
The appellant owned certain lands in the State of Bihar in respect of which proceedings under the Land Acquisition Act were started.
Under section 11 of the Act the Collector fixed the area of the land to be acquired and the compensation payable, and also apportioned the compensation between the appellant and the members of the village community who had claimed compensation for some.
portions of the land.
The award was then filed under section 12.
The appellant and members of the village community being dissatisfied asked the Collector to make.
references under section 18 to the Court.
After the award was given but before possession under section 16 of the Act was taken the Bihar Land Reforms Act, 1950 was passed and by the operation of s.3 of the Act the appellant 's land became vested in the State.
On behalf of the State an application was made to the Collector to make a reference to the Court under section 30 of the Act claiming that the compensation under the award was payable to it as it had acquired the appellant 's title to the land.
The District Court held that the compensation was not payable to the State but, on appeal, the High Court held in favour of the State.
The appellant came to this Court with certificate.
It was contended on behalf of the appellant that (1) the Collector had no authority to refer the matter under section 30 after he had apportioned the amount of compensation under section 11; (2) since title to.
compensation is derived solely from and on the date of the award, the notification under section 3 of the Bihar Land Reforms Act did not deprive the appellant of his right to receive compensation; and (3) the State Government was not 'a person interested within the meaning of the Land Acquisition Act, and could not apply for a reference.
under section 30.
HELD: Per Shah and Bachawat, JJ. (i) There are two provisions in the Act under which the Collector can make a reference to the Court, namely, section 18 and section 30.
The powers under the two sections are distinct and may be invoked in contingencies which do not overlap.
A person shown in that part.
of the award which relates to apportionment of compensation who is present either personally or through a representative or on whom notice is issued under section 12(2), must, if he does not accept the award, apply to the Collector to refer the matter to the Court under section 18 within the time prescribed thereunder.
But a person who has not appeared in the acquisition proceedings before the Collector may, if he is not served with notice of filing, raise a dispute as to apportionment or as to the persons to whom it is payable and apply to the Court for a reference under section 30, for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award.
For a reference under section 30 no period of limitation is prescribed.
[583E 584A] 577 (ii) It is not predicated of the exercise of the power to make a reference under section 30 that the Collector has not apportioned the compensation money by his award.
[584D] Boregowda and Anr.
vs Subbaramiah and Ors., A.I.R. , disapproved.
(iii.) The award made by the Collector under section 11 is not the source of the right to compensation.
An award is strictly speaking only an offer made by the Government to the person interested in the land notified for acquisition; the person interested is not bound to accept it and the Government can also withdraw the acquisition under section 48.
It is only when possession of the land has been taken by the Government under section 16 that the right of the owner of the land is extinguished.
Therefore the appellant 's contention that title to compensation is derived solely from and on the date of the award, could not be accepted.
[584H 585C] (iv), The liability of the Government under section 31 to pay compensation to the person entitled thereto under the award does not imply t.hat only the persons to whom compensation is directed to.
be paid under the award may raise a dispute under section 30.
The scheme of apportionment by the Collector under section 11 is conclusive only between the` Collector and the persons interested and not among the persons interested.
Payment of compensation under section 31 to the persons declared in the award to be entitled thereto discharges the State of its liability to pay compensation leaving it open to the claimant to compensation to agitate his right in a reference under section 30 or by a separate suit.
[586B F] (v) Under the Bihar Land Reforms Act the title of the appellant to the land notified for acquisition became vested in the.
State and therefore the right to compensation for the land acquired devolved upon the.
State.
A dispute then arose between the State Government and the appellant "as to the persons to whom" compensation was payable.
The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector and no application could be made by it as a person interested within the meaning of section 18.
But a dispute between the appellant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under section 30 of the Act to the.
Court.
There is nothing in section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of the land has since the award, devolved.
[584G; 586A, G, H] Promotha Nath Mitra vs Rakhal Das Addy, 11 Cal.
L.J. 420, referred to.
Per Subba Rao, J. (i) The Land Acquisition Officer cannot make a reference under section 30 of the Act in the matter of apportionment of compensation after the award has been made by him apportioning the compensation under section 11 and has been filed under section 12.
The Land Acquisition Act discloses a well knit scheme in the matter of making an award.
The Land acquisition Officer after issuing notice calling for objections decides on the three matters prescribed in section 11 i.e. the true area of the land, the amount of compensation and the apportionment of the compensation.
Before making the apportionment he can resort to any of the following three methods.
(i) to accept ' an agreed formula; (ii) to decide for himself; and 578 (iii) to refer to the Court if he.
thinks that the decision of the Court is necessary.
But once the award is made, it becomes final and it can be reopened only in the manner prescribed i.e. by way of a reference under section 18 of the Act.
It is not correct to say that on the above view a person who acquires a right after the award by transfer inter vivos or by devolution of interest will be without a remedy.
Such a person may ask for a reference under section 18.
He may apply to be brought on record after the reference is made to the.
Court.
He may proceed to the Civil Court to recover the compensation from the persons who received it on the basis of his title.
On the other hand the contrary view will lead to an incongruous position.
It enables the Land Acquisition Officer to reopen a final award in the teeth of the express provisions of section 12 of the Act.
It further enables him to make a reference without any period of limitation and thus to disturb the rights finally settled by the award.
[580B G]


judgement:
Appeals Nos. 213 and 214 of 64.
Appeals from the judgment and order dated April 4, 1961, of the Madras High Court in Case Referred No. 130 of 1956.
Niren De,Additional Solicitor General R. Ganapathy Iyer and R.N. Sachthey, for the appellants (in both the appeals.
A. V. Vishwanatha Sastri, M.M. Ismail and R. Gopalakrishnan, for the respondent in both the appeals.
The Judgment of the Court was delivered by Subba Rao, J.
In the t,own of Nagore in Tanjore District, Madras State, there is a Durgha consecrated to Hazerath Sayed Shahul Hameed Quadir Ali Ganja Savoy Andavar, who lived some 400 years ago.
The said Durgha receives large income from immovable properties endowed to it and the offerings in cash and kind made by the devotees.
The Durgha and its properties are now being administered under a scheme settled by the Madras High Court on March 16, 1955.
Under the scheme the management of the administration of the affairs of the said Durgha vests hereditarily in 8 trustees called Nattamaigars, who constitute a board of trustees.
The said board of trustees shall from among themselves elect one as a managing trustee and he shall hold office for a term of 3 years.
The managing trustee shall at the end of each fasli prepare a balance sheet verified by the manager and ascertain the net amount available for payment to kasupangudars, who are the descendants of Saiyed Muhammed Eusoof, the foster son of the saint.
The Managing Trustee shall declare the amount due to each of the kasupangu (share) and shall allocate the amount to each kasupangudar (sharer) in the list to be prepared for that purpose 661 in each year.
He shall pay the amount to each kasupangudar in accordance with the list.
It is said that at present there are 640 kasupangudars.
Briefly stated under the scheme the management of the properties of the Durgha, both movable and immovable, vests in Nattamaigars, and the kasupangudars are entitled to the surplus in accordance with their shares.
For the assessment years 1953 54 and 1954 55 the Income tax Officer assessed the surplus income in the hands of the Managing Trustee as an association of persons.
The Appellate Assistant Commissioner, on appeal, confirmed the same.
On further appeal, the Income tax Appellate Tribunal took the same view.
At the instance of the assessee, the Tribunal submitted the following question for the opinion of the High Court of Madras under s.66(1) of the Income tax Act.
1922, hereinafter called the Act: "Whether the provisions of Section 41 can be said to apply to the assessees in this case.
" A Division Bench of the High Court, which heard the reference.
held that the Managing Trustee qua the surplus income managed the property and derived the income on behalf of the kasupangudars and that the assessment should be made on the said Managing Trustee to the extent of the interest of each of the kasupangudars in the income received by him.
In the result it answered the question in the affirmative and in favour of the assessee.
The Commissioner of Income tax, Madras, on a certificate of fitness granted by the High Court, has preferred the present appeals against the said Order.
The learned Additional Solicitor General, appearing for the Revenue, contended that the Natmaigars being trustees, the properties of the Durgha vested in them and, therefore, they or the Managing Trustee administered the trust properties in their own right and not on behalf of the kasupangudars and hence s.41 of the Act did not apply, with the result the Income tax Officer had rightly assessed the surplus income in the hands of the trustees as an association of persons.
Mr. A.V. Viswanatha Sastri, learned counsel for the assessee respondent, argued, on the other hand, that the Nattamaigars of the Durgha were not trustees as understood in the law of trust but were only managers managing the properties on behalf of the Durgha and kasupangudars.
On that assumption, his argument proceeded.
as the Nattamaigars, as managers, held the surplus on behalf of the kasupangudars for distribution in definite shares, s.41 of the Act was attracted.
At the outset we may make it clear that in this appeal we are concerned only with the surplus remaining on hand with the Nattamaigars after meeting the expenses of the Durgha.
662 The problem presented in these appeals falls to be decided on a true construction of s.41 of the Act.
The material part of s.41 reads: (1) In the case of income, profits or gain chargeable under this Act, which the Courts of Wards, the Administrators General, the Official Trustees or any receiver or manager (including any person whatever his designation who in fact manages property on behalf of another) appointed by or under any order of a Court, or any trustee or trustees appointed under a trust declared by a duly executed instrument in writing whether testamentary or otherwise (including the trustee or trustees under any Wakf deed which is valid under the ), are entitled to re ceive on behalf of any person, the tax shall be levied upon and recoverable from such Court of Wards, AdministratorsGeneral, Official Trustee, receiver or manager or trustee or trustees, in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profits or gains are receivable, and all the provisions of this Act shall apply accordingly.
Under this section the income of properties receivable by the enumerated persons for the benefit of others is liable to be assessed to tax in their hands in the like manner and to the same amount as it would be leviable upon and recoverable from the person or persons on whose behalf such income is receivable.
This section centres on the basic fact that the person in whose hands the income is assessable shall be entitled to receive the same on behalf of any person; if he is not so entitled, the provisions of the section cannot be invoked.
it is contended that, as the properties vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries, though for their benefit,, the said income in the hands of the managing trustee fell outside the scope of s.41 of the Act.
There are two answers to this contention.
The doctrine of vesting is not germane to this contention.
In some of the enumerated perso,ns in the section the property vests and in others it does not vest, but they only manage the property.
In general law the property does not vest in a receiver or manager but it vests in a trustee, but both trustees and receivers are included in s.41 of the Act.
The common thread that passes through all of them is that they function legally or factually for others: they manage the property for the benefit of others.
That the technical doctrine of vesting is not imported in the section is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him.
In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallis are brought under the section.
A reasonable interpretation of the 663 section is that all the categories of persons mentioned therein are deemed to receive the income on behalf of another person or persons or manage the same for his or their benefit.
None of them has any beneficial interest in the income; he collects the income for the benefit of others.
In this view, even if the Nattamaigars were trustees in whom the properties of the Durgha vested, they should be deemed to have received the income only on behalf of the kasupangudars in definite shares.
The same conclusion will be reached even if the problem was approached from a different angle.
In the well known decision of the Privy Council in Vidya Varuthi Thirtha vs Balusami Ayyar(1) the inappropriateness of the use of the expression "trustee" to the manager of a Hindu or Mahommedan religious endowments was brought out.
Therein their Lordships observed: "Neither under the Hindu Law nor in the Mahommedan system is any property "conveyed" to a shebait or a mutawalli, in the case of a dedication.
Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage.
Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakf, and vest in God Almighty.
The curator, whether called mutawalli or saijadanishin, or by any other name, is merely a manager.
He is certainly not a "trustee" as understood in the English system." The Privy Council, in the context of a wakf property, reaffirmed the said observations, in Allah Rakhi vs Mohammad Abdur Rahirn(2).
The effect of the said decisions is that Nattamaigars are only the managers of the properties in which the Durgha and the kasupangudars have beneficial interests.
The properties do not vest in them.
They receive the income therefrom on behalf of both of them.
After meeting the expenses of the Durgha they hold the.
balance on behalf of the kasupangudars and distribute the same in accordance with their shares.
In this view, in terms of section 41 of the Act the Nattamaigars are the managers of the properties on behalf of others and, are entitled to receive the income therefrom on behalf of them.
With the result, the income which they hold on behalf of the kasupangudars can be assessed only in their hands in the manner prescribed thereunder.
But it is said that whatever may the doctrine of Hindu or Mohammadan law, under the terms of the aforesaid scheme the properties vested in the Nattamaigars and, therefore, they receive the income in their own right and* not on behalf of the kasupangudars.
A careful reading of the relevant (1)(1921) L.R. 48 I.A. 302, 315.
(2) (1933) L.R.61. '.
I.A. 50.
664 part of the scheme does not countenance this argument.
Clause 3 of the scheme, which is the material clause, reads: "The management and administration of the affairs of the Nagore Durgha at Nagore, Tanjore District, and other thakias and shrines connected therewith (mentioned in Schedule A hereunder) and all properties movables and ' immovables which belong to or have been or may hereafter be given, dedicated, endowed thereto, shall subject 10 the provisions thereof vest hereditarily in the eight trustees or nattamaigars of the Durgha who shall constitute the Board of Trustees.
Each trustee or nattamaigar is entitled to hold ' office for life, and after him the trusteeship shall devolve on his next male heir in accordance with the custom prevailing in respect of such office in the Durgha.
" Under this clause the management and administration of the Nagore Durgha and its properties vest in the Nattamaigars.
What vests in the Nattamaigars is not the properties of the Durgha but the management and administration thereof.
Unless the words are clear we are not prepared to hold that the High Court in framing a scheme for the endowments of the Durgha had introduced a foreign concept of "trust" in derogation of Mohammadan law. 'We, therefore, hold that the scheme did not vest the properties of the Durgha in the Nattamaigars.
Lastly, a faint argument was raised to the effect that under the scheme the managing trustee was not appointed under any order of a Court but was appointed by an agreement among the trustees.
But in cl. 4 of the scheme the High Court gave a specific direction that the managing trustee shall be elected from among the Board of Trustees.
The Managing Trustee elected was certainly appointed under an order of a Court, for the election was held pursuant to the order of the Court.
That apart, in the view we have taken, namely, that the Nattamaigars are not trustees in the English sense of the term, this question does not arise for consideration.
In the result, we hold that the High Court has rightly answered the question referred to it in the affirmative and in favour of the assessee.
The appeals fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.

dataset_name: IN-Abs

summary:
A scheme was settled in 1955 by the Madras High Court for the management of the income and properties of the Durgah consecrated to a saint in Tanjore District.
Under the scheme the management of the properties of the Durgah was to be in the hands of eight trustees called Nattamaigars one of whom was to be elected by them as Managing Trustee.
The net income of the trust was to be distributed among descendants of the foster son of the saint, called Kasupangudars, whose definite shares were to be determined each year by a list prepared by the Managing Trustee.
For the assessment years 1953 54 and 1954 55, the Income tax Officer assessed the surplus income of the wakf in the hands of the Managing Trustee as an association of persons.
The trustees unsuccessfully appealed to the Appellate Assistant Commissioner and the Appellate Tribunal.
The controversy centred round the question whether s.41 of the Indian Income tax Act, 1922 applied to the case.
In a reference made by the Tribunal at the instance of the assessee the High Court held that that section 41 applied to the case and that the income was received by the trustees on behalf of the beneficiaries.
Aggrieved, the Commissioner of income Tax appealed, by certificate, to this Court.
It was contended on behalf of the appellant that as the properties vested in the managing trustee and he received the income in his own right and not on behalf of the beneficiaries, though for their benefit, the said income in the hands of the managing trustee fell outside the scope of s.41 of the Act.
HELD: The High Court had rightly answered the question in favour of the assessee.
(i) The technical doctrine of vesting is not imported into section 41.
This is apparent from the fact that a trustee appointed under a trust deed is brought under the section though legally the property vests in him.
In the case of a Muslim Wakf the property vests in the Almighty; even so the mutawallis are brought under the section.
Thus in some of the persons enumerated in the section property vests and in others it does not.
A reasonable interpretation of the section is that all categories of persons mentioned therein are deemed to receive them on behalf of another person or persons or manage the same for his or their benefit.
None of them has any beneficial interest in the income; he collects the income for the benefit of others.
In this view even if the Nattarnaigars were trustees in whom the 65 660 properties of the Durgah vested, they should be deemed to have received the income only on behalf of the Kasupangudars in definite shares.
[662G 663B] (ii) The mutawalli of a Muslim Wakf is merely a manager and not a "trustee" as understood in the English system.
[663E] Vidya Varuthi Thirtha vs Balusami Ayyar, (1921) 48 I.A. 32 and Allah Rakhi vs Mohammad Abdur Rahim, (1933) 61 I.A. 50, relied on.
Therefore in terms of s.41 of the Act the Nattamaigars were the manager of the properties on behalf of other and were entitled to receive the income therefrom on behalf of them.
[663G H] (iii) Under c1.3 of the scheme it was the "management and administration" of the Durgah and its properties which was vested in the Nattamaigars and not the properties themselves.
In the absence of clear words it could not be held that the High Court in framing a scheme for the endowments of the Durgah had introduced a foreign concept of "trust" in derogation of Mohammadan Law.
The scheme therefore did not vest the properties of the Durgah in the Nattamaigars and the contention on behalf of the Revenue could not succeed.
[664D, E]


judgement:
il Appeal No. 329 of 1962.
Appeal from the judgment and decree dated September 26. 1957 of the High Court in Appeal from Original Decree No. 253 of 1949.
656 Sarjoo Prasad and R.C. Prasad, for the appellants.
A.V. Viswanatha Sastri and D. Goburdhun.
for respondents nos.
1 to 4 and 6.
The Judgment of the Court was delivered by Sarkar, J.
This appeal arises out of a suit brought by the appellants in 1947 for a declaration that the defendants first party had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void.
The suit was decreed by the trial Court but on appeal by the defendants first party to the High Court at Patna that decree was set aside.
The High Court having granted a certificate of fitness, the appellants have brought the present appeal.
The defendants first party have alone contested the appeal and will be referred to as the respondents.
The High Court held that as the appellants were not in possession of the property at the date of the suit as found by the learned trial Judge and the respondents were, their suit must fail under the proviso to s.42 of the Specific Relief Act as the appellants had failed to ask for the further relief of recovery of possession from the respondents.
In this view of the matter the High Court did not consider the merits of the case.
The fact however was that at the date of the suit the property was under attachment by a magistrate under powers conferred by section 145 of the Code of Criminal Procedure and was not in the possession of any party.
This fact was not noticed by the High Court but the reason why it escaped the High Court 's attention does not appear on the record.
The only point argued in this appeal was whether in view of the attachment, the appellants could have in their suit asked for the relief for delivery of possession to them.
If they could not, the suit would not be hit by the proviso to section 42.
The parties seem not to dispute that in the case of an attachment under section 146 of the Code as it stood before its amendment in 1955, a suit for a simple declaration of title without a prayer for delivery of possession is competent.
The respondents contend that the position in the case of an attachment under section 145 of the Code is different, and in such a case the magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the section was made.
It was said that a suit for declaration of title pending such an attachment is incompetent under the proviso to section 42 unless recovery of possession is also asked for.
It appears that the attachment under section 145 in the present case is still continuing and no decision has yet been given in the proceeding 's resulting in the attachment.
In our view, in a suit for declaration of title to property filed when it stands attached under section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession.
The fact 657 if it be so, that in the case of such an attachment, the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant.
On the question however whether the magistrate actually does so or not, it is unnecessary to express any opinion in the present case.
The authoritie 's clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession: see Sunder Singh Mallah Singh Sanatan Dharm High School, Trust vs Managing Committee, Sunder Singh Mallah Singh Rajput High School.(1) Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants.
The magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit.
It is pertinent to observe that in Nawab Humayun Begam vs Nawab Shah Mohammad Khan(2) it has been held that the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only.
We may add that in K. Sundaresa lyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd.(3), it was held that it was not necessary to ask for possession when property was in custodia legis.
There is no doubt that property under attachment under section 145 of the Code is in custodia legis.
These cases clearly establish that it was not necessary for the appellants to have asked for possession.
In Dukkan Ram vs Ram Nanda Singh(1) a contrary view appears to have been taken.
The reason given for this view is that the declaratory decree in favour of the plaintiff would not be binding on the magistrate and he was free inspite of it to find that possession at the relevant time was with the defendant and deliver possession to him.
With great respect to the learned Judge deciding that case, the question is not whether a declaratory decree would be binding on the magistrate or not.
The fact that it may not be binding would not affect the competence of the suit.
The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which, it is not disputed, is the case when the property is under attachment under section 145 of the Code.
We think that Dukkan Ram 's(4) case had not been correctly decided.
We may add that no other case taking that view was brought to our notice.
(1) (1937) L.R. 65 I.A. 106.
(2) A.I.R. 1943 P.C. 94.
(3) I.L.R. (4) A.I.R. 1961 Pat.
658 For these reasons, we hold that the suit out of which this appeal has arisen was competent.
We, therefore, allow the appeal but as the merits of the case had not been gone into by the High Court, the matter must go back to that Court for decision on the merits.
The appellant will get the costs here and below.
Appeal allowed and case remanded.

summary:
There was dispute about the property in suit between theappellants and the respondents.
The property was attached by the Magistrate under section 145 of the Criminal Procedure Code.
Subsequently the appellants filed a suit for declaration of their title to the property but made no prayer for the cansequential relief of possession.
The suit was decreed by the trial court but the High Court set aside the decree on the ground that the suit was bad under section 42 of the Specific Relief Act for failure to sue for possession.
Appeal to this Court was filed with certificate of fitness.
HELD: In a suit for declaration of title to property, filed when it stands attached under section 145 of the Criminal Procedure Code, it is not necessary to ask for the further relief of delivery of possession.
The fact, if it be so, that in the case of such an attachment the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession, is irrelevant.
[656H 657B] Moreover the further relief contemplated by the proviso to section 42 of the Specific Relief Act is relief against the defendant only.
In the present case the Magistrate was in possession and he was not a party to the suit.
[657C D] Further it is not necessary to ask for possession when the property is in custodia legis.
There is no doubt that property under attachment under section 145 of the Code is in custodia legis.
[657E3 Sunder Singh Mallah Singh Sanatan Dharam High School, Trust vs Managing Committee, Sunder Singh M.allah Singh Rajput High School, (2937)L.R. 65 I.A. 10,6 and Nawab Humayun Begum vs Nawab Shah Mohammad Khan, A.I.R. 1943 P.C. 94, relied on.
K. Sundarama Iyer vs Sarvajana Sowkiabil Virdhi Nidhi Ltd. I.L.R. , approved.
Dukhan Ram vs Ram Nanda Singh, A.I.R. 1961 Pat.
425, disapproved.