ORDER
1. This application in revision is directed against an order of the Additional District Judge of Cawnpore, refusing to entertain a reference made by the Collector under Section 18, Land Acquisition Act, 1 of 1894, and to give an award on the ground that the Collector had no power to make the reference, and that the District Judge had no jurisdiction to decide the same.
2. Stripped of all unnecessary details, the facts that led to the reference are as follows:
Certain land situated in the civil lines of Cawnpore, was needed for Gur Narain Khattari High School, and a notification to that effect was published in the Official Gazette, in accordance with the provisions of Section 4, Land Acquisition Act. Tha land was covered with buildings which admittedly belonged to the applicants before us. In pursuance of the provisions of Section 9 of the Act, a public notice of thefact that the Government intends to take possession of the land and that claims to compensation for "all interest in such land" may be made to the Collector was issued on 19th August 1926. The applicants before us, then, filed an application putting forward a claim to the ownership of the site and, in the alternative, claiming to be permanent lessees of the same, and claimed compensation for their interest in the site either as proprietors or as permanent lessees, apart from the compensation, claimed by them for the buildings standing on the same. The Collector hold that the Government was the proprietor of the site and the assertion of the applicants that they were either the proprietors or the permanent lessees of the site was unfounded, and that their poaition was merely that of tenants at will. He accordingly, held that the applicants were only entitled to compensation in rospoct: of the buildings and were not entitled to any compensation with respect to the site. He assessed the value of the buildings at Rs. 48,235, and adding 15 per cent on that amount, on account of compulsory acquisition, awarded to the applicants in all a sum of Rs. 55,470-4-0, as compensation for the buildings. The applicants were dissatisfied with the award. They took exception to the finding of the Collector that the site belonged to to the Government and that their position was that of tenants at will, and claimed that they were entitled to compensation with respect to the site. They also claimed that the compensation awarded for the buildings was inadequate and, accordingly, moved the Collector to make a reference to the District Judge under Section 18 of the Act. No objection was taken before the Collector, that the Collector, in the circumstances mentioned above, was not competent to make a reference, and the Collector referred the matter to the District Judge.
3. On receipt of the reference, the District Judge issued a notice in accordance with Section 20 of the Act and fixed certain issues for trial. The case was then transferred to the file of the Additional District Judge, who recorded the evidence adduced by both the parties and proceeded to hear the arguments. In the course of arguments, an objection was raised on behalf of the opposite party, that the question of title arising between the Government and the applicants could not be the subject of a reference under Section 18 of the Act, and that the Collector had no jurisdiction to make the reference, nor had the Judge jurisdiction to determine and decide the same. The learned Judge gave effect to this contention and held that the amount of compensation to be awarded to the plaintiffs in this case depends entirely on. the nature of their interest in the land in dispute, but as I cannot decide the nature of their interest, 1 cannot entertain the reference about the amount of compensation also.
4. He accordingly, directed that the record be sent back to the Collector and that "the plaintiffs should establish their rights in the Civil Court." The learned Judge in support oE the conclusion arrived at by him, relied on the decision in Imdad Ali Khan v. Collector of Farru-khabad (1885) 7 All. 817, Grown Brewery, Mussoorie v. Collector of Dehra Dun (1897) 19 All. 339 and Mohammad Wajeeh Mirza v. Secy.of State, AIR 1921 Oudh 31. These decisions are authorities for the proposition that the question of title arising between the Government and a claimant cannot be made the subject of a reference under the Land Acquisition Act to the District Judge, and that the District Judge on reference, is not competent to decide the question of title as between the Government and the claimant. The two reported decisions of this Court noted above were decisions with respect to the true scope of, and the interpretation to be put on Section 15 of the former Land Acquisition Act 10 of 1870, but it seems difficult, if not impossible, to distinguish those cases on. this ground from the case before us. In the case of Mohammad Wajeeh Mirza v. Secy. of State, AIR 1921 Oudh 31, the question, whether a question of title between the Government and a claimant can be referred by the Collector to the Court under Section 18 of the present Act, directly arose for consideration, and one of the learned Additional Judicial Commissioners felt no hesitation in answering the question in the negative. The other learned Additional Judicial Commissioner composing the Bench, however "felt considerable difficulty regarding the question of law involved" and while holding that, once a notice is issued under Section 9, Land Acquisition Act in respect of land of which the Government claims to be the owner, and some person claims proprietary title to or some interest in respect of that land, the Collector is bound to inquire into and decide the question BO raised in proceedings under Section 11 of the Act, affirmed the proposition that a question of title as between the Government and the claimant does not come within the purview of 8. 18 of the Act and cannot therefore be referred to the Court (the District Judge) for decision.
5. The law may or may not have been correctly laid down in the decisions noted above, but there is no doubt that there is considerable divergence of judicial opinion on the point.
6. In the case of the Government of Bombay v. Ksufali Salebhai (1910) 34 Bom. 618, the two decisions of this Court were referred to and were doubted. Further in Mangaldas Girdhar Das Parekh v. Assistant Collector, Ahmedabad A.I.R. 1921 Bom. 325, a view diametrically opposed to the view taken by this Court was adopted. It was pointed out in that case that the Calcutta and Allahabad High Courts have taken a different view of the question, and the desirability of uniformity of judicial opinion on the question of the scope of the inquiry by the Court on a reference under Section 18 of the Act was emphasized. We further find that in the case of the Secretary, Cantonment Committee, BarracJcpore v. Satish Chandra Sen A.I.R. 1931 P.C. 1, a disputed question of title to land as between the Government and a claimant was considered at length and decided by their Lordships of the Judicial Committee, without any objection being raised or suggested as to the jurisdiction of the Court to decide such a question on a reference under Section 18 of the Act. Similarly this Court in the case of Ehushal Singh v. Secy. of State A.I.R. All. 394, which arose out of land acquisition proceedings, considered at length and decided the question whether the Government or the claimant in that case was entitled to the "kankar." It is true that in neither of the last two mentioned cases the question of jurisdiction was raised or decided, but if objection to the jurisdiction of the Court to determine a disputed question of titje between the Government and a claimant, on a reference under Section 18 of the Act, was as patent as it has been assumed to be by the District Judge in the case before us; we find it difficult to believe that the matter would not have arrested attention, and there would not have been some observations on the point, either by their Lordships of the Judicial Committee or by the learned Judges of this Court who decided the case of Khushal Singh A.I.R. All. 394.
7. The question of law involved in the case is not free from difficulty and is of far reaching importance, and we consider it desirable to refer this case to a larger Benoh. We therefore direct that the ease be put up before the Hon'ble the Acting Chief Justice with request for the constitution of a Eull Bench for the decision of the case.
8. A preliminary objection to the hearing of this application was taken by Dr. Sen, the learned Counsel for the opposite party on the ground that this Court had no jurisdiction to revise the decision of the District Judge under Section 115, Civil P.C. He argued that the Land Acquisition Act is a self-contained Act, containing detailed provisions as regards the procedure to be followed by the Collector and by the Court, and he emphasized the fact though a right of appeal is given by Section 54 of the Act, there is no provision in the Act authorizing this Court to interfere with the decision of the District Judge in the exercise of its revisional jurisdiction. He conceded that there is no authority in support of his argument and that, on the contrary, the authorities are against his contention, and that Section 53 of the Act, furnishes strong argument in favour of the applicants. As we are referring the whole case for decision to a Full Bench, we refrain from deciding the preliminary objection noted above.
JUDGMENT Makerji, J.
9. This Civil Eevision No. 165 of 1932, has been referred to a Pull Bench by two learned Judges of this Court, because they found some difficulty in agreeing with two earlier decisions of this Court, namely, Imdad Ali Khan v. Collector of Farrukhabad (1885) 7 All. 817 and Grown Brewery, Mussoorie v. Collector of Dehra Dun (1897) 19 All. 339. The facts so far as they are material at this stage of the case are these: The local Government decided to acquire a piece of land, which was described in the Notification as situate in district Cawnpora, pargana Gawnpore, village Civil Lines, area 2 acres and odd with buildings thereon, for purposes of extending the G. N. K. School, Oawnpore. In the Notification, in the remark column the following was stated:
The land required is Nazul land occupied by buildings owned by a private person.
10. The applicants before us, who owned "the buildings situated on the land, claimed to be the proprietors of the land, and in the alternative, to be its permanent lessees if it was found that the site was still the property of the Government. The Collector decided that the land belonged to the Government ; that the applicants' interests in the site were limited to those of a tenant at will and that they were entitled to compensation only for the buildings that stood on the land. The applicants, being dissatisfied with this decision of the Collector, asked fora reference under Section 18, Land Acquisition Act, 1894. Tea case was heard at length, in the Court below. It was argued there on behalf of the Secretary of State, that the District Judge had no jurisdiction to decide whether the site belonged to the Secretary of State or not. The learned District Judge accepted this argument and said in his judgment as follows:
The amount of compensation to be awarded to the plaintiffs in this case depends entirely on the nature of their interest in the land in disrate, but as I cannot decide the nature or their interest, I cannot entertain the reference about the amount of compensation also. For reasons given above, it is ordered that the record be sent iiack to the Collector. The plaintiffs should establish their rights in the civil Court.
11. Being dissatisfied with this order of the learned District Judge dated 18th February 1932, the applicants have filed this revision. A preliminary objection is taken on behalf of the Secretary of State for India in Council that the revision is not maintainable. The argument is twofold. One is that the learned District Judge acting under the Land Acquisition Act was acting as a persona designata and not as a "Court," and the second argument is that assuming that the District Judge was a Court he did not act with material irregularity or illegality nor did he fail to exercise jurisdiction vested in him, inasmuch as ho followed two rulings of this Court. As regards the first point, there can be no doubt that the learned District Judge was acting judicially. Ho was acting as a "Court" as defined in Section 3, Land Acquisition Act. A Court is defined as follows:
The expression 'Court' means a principal civil Court of original jurisdiction, unless the Local Government has appointed (as it is hereby empowered to do) a special Judicial Officer within any specified local limits to perform the functions of the Court under this Act.
12. In this particular case it was the District Judge who performed the functions of the "Court" within the meaning of the Land Acquisition Act. But the argument is that instead of the District Judge it was open to the local Government to appoint any other officers. The argument further is that, if any executive officer had been so appointed, he could not have been described as a Court. This argument however overlooks the fact that the officer to be appointed a ''Court" must be a Judicial Officer and not an Executive Officer. The idea in defining the word "Court" is clear. The Court must be presided over by a Judicial Officer. It is not difficult to see why this idea should have prevailed in defining the word "Court." Important questions of law, such as status of parties, questions of Hindu and Mahomedan Law, limitation and similar difficult questions may arise in determining the rights of the parties, and it was necessary that the duty, which is very often an onerous one, should be entrusted to a Judicial Officer. An appeal is permitted from the "award" of the Court to the High Court, and a further appeal is permitted to his Majesty in Council : vide Section 54 of the Act. In this view, the officer, who gave the decision impeached must be treated to have been a "Court," as indeed he is called by the Act itself, and not merely a persona designata. Now the question is whether the Court, as defined in the Land Acquisition Act of 1894, is a Court subordinate to the High Court. We have to find this out, because Section 115, Civil P.C., gives jurisdiction to the High Court to revise only an order of a Court subordinate to it. The fact, that an appeal is allowed from an award of the Court constituted under the Land Acquisition Act, is, in our opinion, conclusive of the fact that the "Court" is subordinate to the High Court. The Court under the Land Acquisition Act, follows all the rules laid down in the Civil Procedure Code for the guidance of an ordinary Court, and further an appeal is allowed from its award to the High Court. These two facts indicate that the Court is subordinate to the High Court. No authority has been cited before us in support of the argument that the Court under the Land Acquisition Act is not subordinate to the High Court and that no revision is entertain-able against its orders. On the other hand, the few cases that are available appear to have held to the contrary. As far biick as in the year 1875, the High Court, of Calcutta had to consider whether a Court established under Act 10 of 1870, (Land Acquisition Act which has been superseded by Act 1 of 1894) was or was not a Court subject to the Superintendence of the Calcutta High Court. The fact, that an appeal lay to the High Court from the award of that Court, was held to bo an indication that the Court was subject to the Superintendence of the 1 Ligh Court. In Joseph v. Salt Co. (1894) 17 Mad. 371, the High Court exercised revisional jurindiction under Section 622, Civil P.C., 1882. The fact, that no cases which may have decided to the contrary have been brought to our notice, indicates that the rovisional powers of the High Court have nwvar beon questioned.
13. Before leaving this point, we may quote the case of Balhrishna v. Vasudeva Ayyar A.I.R. 1917 P.C. 71, decided by the Privy Council undi.ilthe Eeligious Endowments Act. The Heligious Endowments Act, 20 of 1863, uses the words "civil Court" and Court" and describes them as meaning the principal Court of original civil jurisdiction. A District Judge exercised jurisdiction under Section 10, Religious Endowments Act. A revision was entertained by the High Court against his orders. The matter was taken before their Lordships of the Privy Council, and it was contended that no revision lay to the High Court. It was specifically held by their Lordships that the High Court had jurisdiction under Section 115, Civil P. C., 1908. Their Lordships further pointed out that in making the order the District Court was acting in a judicial capacity as a Court of law, and not merely in an administrative capacity. We have already pointed out that the Court constituted under the Land Acquisition Act, is either the District Court of a Judicial Officer exercising the functions of a Court under the Land Acquisition Act. In each case the Court is acting in a judicial capacity and not in an administrative-capacity. In Mohammad Abdul Wahid' Khan v. Badha Kishun A.I.R. 1929 All. 581, the question arose, viz., where a District Judge exercised jurisdiction under the Charitable and Eeligious Trusts Act, 14 of 1920, Section 7,. whether a revision by this High Court is competent. Following the Privy Council case just quoted, a Division Bench of this Court, of which one of us was a member, held that a revision was maintainable. For the reasons given above, we are of opinion that an application in revision would lie. The next question is whether the fact, that the District Judge followed two decisions of this Court, should bar us from entertaining the revision. Reliance has been placed on the Full Bench case of Yad Bam v. Sundar Singh A.I.R. 1923 All. 392. That was a case in which, following a previous ruling of this Court, a subordinate Court held that the person, who had applied for setting aside a sale held in execution of a decree, was not entitled to make the application. It was held by the Full Bench that the Court below in following the rulings of the High Court acted in a way in which it should have acted, and therefore no revision was maintainable. Piggot, J., is reported to have said as follows:
I cannot reconcile it with my judicial conscience to hold that, in thus fulfilling an obligation incumbent upon him as a judicial officer, the learned Subordinate Judge was acting illegally, or with material irregularity, or going outside the jurisdiction conferred upon him by Section 104 read with Order 43, Civil P.C.
14. There no question arose as to whether the Court had or had not jurisdiction in the matter before it. The only question for decision was whether the Court acted illegally or with material irregularity. In following a previous decision of this Court the Court did not act either illegally or with material irregularity. There was no question of failure to exercise jurisdiction vested in the Court. It was conceded that the Court was rightly seized of the case. In the present case however the District Judge had distinctly declined to exercise jurisdiction, being of opinion that he is precluded from hearing the case. He says:
...but as I cannot decide the nature of their interest, I cannot entertain the reference about the amount of compensation also.
15. We are therefore of opinion that the second argument also as regards want of revisional jurisdiction in the High Court is not sound. On the merits we are of opinion that the learned Judge was wrong in the decision at which he arrived. Prom an examination of the several sections, to bo just noticed, of the Land Acquisition Act if; appears to us that the Act provides a complete machinery for decision of all questions of title and interest that may arise in the course of the acquisition. If that bo the case, there is no reason why where , title to land is claimed on behalf of the Secretary of State, that question should not be decided by the Court exercising functions under that Act. Section 4, Land Acquisition Act, states that where the Local Government considers that any particular land is needed or is likely to be needed for any public purpose, it shall issue a Notification to that effect. This Notification is meant for a preliminary inquiry as to the fitness of the land for the purpose for which it may be needed. Then, when the Local Government decides that ilr should acquire that land or any other land, it shall issue a Notification. After the Notification, the Collector is called upon by Section 9 of the Act to cause public notice to be given of the intention of the Government and calling on persons interested to claim compensation. By H. 11 the Collector is called upon to fix a ciate for an inquiry and then to proceed to inquire into the objections, if any, of any person interested. Then by Section 12 the Collector is to make an award. By Section 18 any person dissatisfied with the award may call upon the Collector to make a reference to the "Court." The Collector thereupon makes a referenoe to the Court, and after service of notice the Court proceeds to determine the points at issue. By P . 21, the scope of the inquiry is to be restricted to a consideration of the interests of the persons affected by the objection. By Section 22 the proceeding is to take place in open Court, and all persons interested are entitled to have the services of persons, who are entitled to practise in the civil Courts of the province.
16. Then under Section 26 the Court is to make an award which is to be deemed to be a "decree" and the statement of the grounds of every such award is to be regarded as a judgment within the meaning of Section 2, Civil P.C., 1908. The Court has jurisdiction to allow costs. As we have already indicated, the award of the Court which is to be regarded as a decree is open to appeal to the High Court, and the decision of the High Court is again subject to appeal to His Majesty in Council. A survey of the provisions of the Land Acquisition Act shows that a complete machinery has been provided for deter, ruination of all questions of title and amount of compensation that may arise in the course of the acquisition. Now the questionis: is there anything in the Land Acquisition Act which gives any identification of the view of the Legislature that where the Secretary of State claims an interest in any land, the "Court" is to stay its hand and refuse to decide the question of title as it is otherwise empowered to do under Section 26, Land Acquisition Act? The learned Counsel appearing for the Secretary of State has not been able to lay his finger on any of the Acts as giving an indication in support of the argument. He merely took his stand on the two decisions of this Court quoted in an earlier part of this judgment. With all respect, the decisions do not proceed on a correct consideration of the provisions of the Land Acquisition Act. The earlier decision is based on the view that where the Secretary of State is a parby, the machinery provided is not applicable because Section 15 of the Act, 1870, contemplated a dispute between parties other than the Collector himself. The second case merely follows the earlier case, though the learned Judges professed their agreement to the view expressed in the earlier case. In a case decided by the late Court of the Judicial Commissioner of Oudh, Wajeeh Mirza v. Secy. of State A.I.R. 1917 Cal. 373, the Bench followed the Allahabad cases. The reasons given by the two learned Judges were not the same. It would be sufficient to say that the several sections of the Act were not considered there in the way in which we have done. Mr. Lyle followed the Allahabad eases. Mr. Daniels felt some difficulty on the question before him, but ultimately accepted the view taken in the Allahabad cases. But, as we have said, none of the learned Judges examined the whole structure of the Act as we have done and with utmost respect we differ from the opinion expressed by them.
17. On the other hand, numerous cases decided by other High Courts have been cited to us in which it has been specially held that the question of title of the Secretary of State may be inquired into by the Court under the Land Acquisition Act. Before we proceed to examine these cases, we may point out that one case went up to the Privy Council, and although im it the question of the title of the Secretary of State was raised and decided, nobody thought of questioning the right of the Court constituted by the Land Acquisition Act to entertain the reference. This case is, Secretary Cantonment Committee, Barrackpore v. Satish Chandra Sen A.I.R. 1931 P.C. 1. In another case recently decided in this Court, Khushal Singh v. Secy. of State A.I.R. All. 394, the question was decided whether title to minerals under the upper soil lay in the Secretary of State or in the zamindar. No question of jurisdiction of the Court was ever raised. In the case of the Government of Bombay v. Esuf Ali Salebhai (1910) 34 Bom. 618, the question of want of jurisdiction was raised and was decided against the present contention. The head note does not bring this out clearly. In a later case, namely, Mangal Das Oirdhar Das v. Assistant Collector, Ahmedabad (1885) 7 All. 817 it was decided that it was competent to the Court to adjudicate on any question of titlo to the land acquired as between the claimant and the Government. In Bijoy Kumar Addy v. Secy. of State A.I.R. 1919 Cal. 724, it was held that the question of title between the Government on the one hand and the claimant on the other must be decided. In Jogesh Chandra Boy v. Secy. of State A.I.R. 1916 Pat. 330, it appears, that the Collector held that the claimant had no title to the site and his interests were confined to the structure on the land and the trees growing thereon. Thereupon, the claimant filed a suit in an ordinary civil Court to obtain a declaration of his title to the site. The High Court of Calcutta held that the suit was not maintainable and that the only remedy of the person whose property was being acquired under the Land Acquisition Act, and who was dissatisfied with the award of the Collector was by asking the Collector to make a reference under Section 18 of the Act. In Dasarath Sahu v. Secy, of State A.I.R. 1916 Pat. 330, the Patna High Court held that the term "land" in Section 3(a), Land Acquisition Act, included things attached to the earth, and the Act did not contemplate the acquisition of only things attached to the land without the land itself.
18. In the case before the Patna High Court an attempt had been made to acquire things standing on the land apart from the land itself, and the High Court held that the proceedings were without jurisdiction. On behalf of the Secretary of State it has been argued that in this particular case what was sought to be acquired was not the site, namely, the land, but only the buildings thereon. In our opinion, this argument is not correct. Firstly, it would not be open to the Local Government to acquire anything apart from the land and, secondly, as a matter of fact, the Notification indicates that what was sought to be acquired was land. We have quoted the Notification and we may point out that the word "land" clearly appears on the face of it. The Notification begins with these words: "The land designated below," and under this Notification appears a specification of the land. If we look at Sections 4 and 6, Land Acquisition Act, we find that what is to be acquired is land, and nothing apart from the land. If the argument of the learned Counsel for the Secretary of State were correct, the opinion of the Officers of the Secretary of State that a certain site belonged to the Secretary of State would be conclusive for the purpose of the Land Acquisition Act. It is always open to the Secretary of State to declare in the Notification that the Secretary of State claimed the land as Nazul, and this is what has been done in this case. Persons, who are interested in disputing the title of the Government to the land, would be entitled to raise objections before the Collector and then before the District Judge and to have a determination of the question of title on the evidence. The result is that we accept this application in revision, set aside the order of tbe learned District Judge by which he declined to entertain the reference and returned the papers to the Collector and direct him to send for the papers from the Collector and to proceed to determine the case from the stage at which he declined to accept the reference. The applicants will have their costs in this Court. The costs incurred in the Court below will abide the result.