Authored By : P.B. Chakravartti, Biswanath Somadder, Blank

P.B. Chakravartti, J.

1. The question involved in the present reference is one onwhich the Calcutta High Court seems to have been the first to pronounce in theyear 1305. In that year, it was held in 12 C. W. N. 241 Administrator-Generalof Bengal v. Land Acquisition Collector (08) 12 C.W.N. 241 that in dealingwith an application under S. 18, Land Acquisition Act, asking for a referenceto the Court, the Collector himself acted as a Court and his order was liableto correction by the High Court in the exercise of its revisional jurisdiction:Since then, the question, after having been answered in various ways, has beenfinally answered in the negative by Full Benches or Special Benches of the HighCourts of Bombay, Madras, Allahabad and shortly Before this reference was made,of Patna. The same has been the answer of the High Courts of Lahore, Nagpur andRangoon. Only the Chief Court of Oudh has answered the question in theaffirmative and in holding that opinion, it stands alone. In this Court,opinion in the later cases has inclined decidedly towards the negative and thequestion comes for final decision last in the Court by which it was firstconsidered. The facts out of which the reference has arisen are the following.The petitioner occupied a portion of premises No. 6-A Armenian Street,Calcutta, as a tenant, for the purposes of his business. Those premises wereacquired under the provisions of the Calcutta Improvement Act, read with theLand Acquisition Act, and the Collector on 23rd June 1941, awarded thepetitioner a sum of Rs. 1268-12-0 as compensation. He was not satisfied withthe amount and by an application under S. 18, Land Acquisition Act, filed on7th August 1941, asked for a reference to the Calcutta Improvement Tribunal"for a proper determination of the question of valuation." By anorder, dated 19th September 1941, the Collector dismissed this application onthe ground that notice of the award having been served on the petitioner on25th June 1941, it was time barred. Thereupon, on 8th November 1941, thepetitioner made another application in which he stated that no notice of theaward had been served upon him at all and he repeated his prayer that areference might be made. This application also was rejected by the Collector on11th November 1941, with a remark that there were no grounds forre-consideration. On neither applications was the petitioner given a hearing.

2. On the dismissal of his second application, thepetitioner moved this Court under S. 115, Civil P. C. and obtained the presentrule. It came up for hearing before Mukherjee and Sen JJ. who observed that thepetitioner had a just grievance and if the Collectors order were revisableunder S. 115 of the Code, they would, without hesitation, send the case back inorder that the petitioner might be given an opportunity to prove his case. Theythought, however, that the order was not revisable, since, in their view, theCollector in refusing to make a reference under S. 18, Land Acquisition Act,did not act as a Court. The learned Judges noticed the conflict of opinionwhich existed on the matter and as it was desirable that the law should besettled, they referred to a Full Bench the following question:

Does the Land Acquisition Collector, Calcutta, in refusingto make a reference under S. 18, Land Acquisition Act, act as a Court, or aCourt subordinate to the High Court, so as to make his order revisable under S.115, Civil P. C.

3. No special significance, we apprehend, attaches to thefact that the question referred mentions the Land Acquisition Collector,Calcutta, in particular; none again, we think, to the fact that only refusal tomake a reference is mentioned. We shall treat the question as embracing allLand Acquisition Collectors and all orders made under S. 18, whether refusingto make a reference or making one. The reasons for which the learned referringJudges thought that the Collector was not a Court, were that the proceedingsbefore him had been held by the Judicial Committee to be of an administrativecharacter up to and including the making of his award and the functions heexercised in making or refusing to make a reference were not very dissimilar;and further that the power of the Local Government under S. 55 of the Act tomake rules for the guidance of officers in all matters concerning itsenforcement, which included the power to make rules for the Collector inmatters coming under S. 18, was inconsistent with his being a Court. Althoughthe application made before the Collector under S. 18, was the first stage inthe judicial proceedings under part III of the Act and, in dealing with it, theCollector exercised certain judicial or quasi-judicial functions, that fact,the learned Judges thought, was not sufficient to make him a Court; and theargument that as and when dealing with such an application, the Collector was acomponent part of the Court which made the final award, was, they thought, farfetched. The learned Judges expressed no opinion on the second part of thequestion referred viz., whether the Collector, assuming he was a Court, was yeta Court subordinate to the High Court within the meaning of S. 115, Civil P. C.

4. The scheme of the Land Acquisition Act as regards thedisposal of matters on which a party may desire an adjudication by the Court isnot very clear and the decisions of the Judicial Committee have not served tomake it clearer. Broadly speaking, there are two such matters, viz., valuationof the land acquired and apportionment of the compensation. Starting from theaward to be made by the Collector, S. 11 provides that he shall enquire"into the value of the land" and "into the respective interestsof the persons claiming the compensation" and that his award must includethe compensation which, in his opinion, should be allowed and "theapportionment of the said compensation among all the persons known or believedto be interested in the land of whom, or of whose claims, he hasinformation." Both the matters we have mentioned above are expresslyincluded, and it is clear that the Collector may, and indeed, so far as thissection is concerned, it would seem he must decide the question of apportionment,when one arises. Proceeding next to S. 18, that section enables a personinterested, subject to certain conditions to which we need not here refer, torequire the Collector to refer any objection he may have for determination bythe Court, whether such objection be, taking only the questions which arematerial for our present purpose, to "the amount of the compensation, thepersons to whom it is payable, or the apportionment of the compensation amongthe persons interested." It would thus appear that under S. 11, theCollector has to determine questions of both valuation and apportionment andunder S. 18, a person interested has a right to require a reference to theCourt on both. It is at this point that difficulties begin and since the natureand extent of the functions of the Collector are very material to the questionwe have to answer, the matter is one of importance. Although S. 18 covers, aswe have seen, questions of both apportionment and valuation, the contents ofthe reference to be made by the Collector, as set forth in S. 19, do not seemto include any question of apportionment, unless it be that the schedule,giving the particulars of the statements of the parties, would include it. Inany event, the form of the award to be made by the Judge, as set forth in S.25, does not include any apportionment of the total compensation between thedifferent persons interested. Sections 23 and 24 refer only to the principlesto be followed by the Court in determining the amount of compensation on areference under S. 16. How then is a question of apportionment decided when theCollector refers it under S. 18 and where is the decision recorded

5. The next matter to notice is that the Act contains ashort chapter, dealing exclusively with the subject of apportionment andconsisting of two sections, 29 and 30. The former of them provides that wherethere are several persons interested in the land acquired and they agree in theapportionment of the compensation, the particulars of such apportionment shallbe specified in the award. The latter provides that if any dispute arises as tothe apportionment of the compensation or as to the persons to whom the same orany part thereof is payable, the Collector may refer such dispute to thedecision of the Court. The chapter which is in part IV of the Act, ends withthis section and nothing further is provided as to how the Court is to decidethe dispute and in what form its decision is to be given. This somewhatextensive review of the sections of the Act has appeared to us necessary,because, without an examination of the sections, the decisions of the JudicialCommittee cannot be properly understood, nor the difficulty created by themappreciated. The Courts in India have held that as respects apportionment S. 30provides for the Collector a procedure, alternative to that prescribed by Ss.11 and 18. He may decide a dispute as to apportionment himself and then referit under S. 18, if required by a party, to the decision of the Court. Or, hemay act of his own motion under S. 30 and either obtain a decision from theCourt before making his award or make a joint award and then make a reference.On this view, when the Collector follows the former procedure, a disputedquestion of apportionment would be decided by him in the first instance andfinally decided by the Court, if so required, in the chain of the award.

6. In 49 I. A. 129 Rama Chandra Rao v. Rama Chandra Rao(22) 9 A. I. R. 1922 P. C. 80 : 45 Mad. 320 : 49 I. A. 129 : 67 I. C. 408 (P.C.), however, the Judicial Committee observed that the Land Acquisition Actcontemplated two perfectly separate and distinct forms of procedure and thefirst of them was necessary for fixing the amount of the compensation which wasdescribed as an award. Explaining further the nature of the award, theirLordships observed that the award, as constituted by the statute, was nothingbut an award which stated the area of the land, the compensation to be allowedand the apportionment among the persons interested in the land of whose intereststhe Collector had information. They were quoting from S. 11 of the Act, and inexplanation of the last phrase extracted from cl. (iii) of the section, theyadded, "meaning thereby people whose interests are not in dispute."They observed further that a dispute between interested people, as to theextent of their interest formed no part of the award. In the case with whichthey were dealing, the compensation money had been deposited in Court under S.31 (2) of the Act, which requires the Collector to make such deposit "ifthere be any dispute as to the title to receive the compensation or as to theapportionment of it" and the High Court had given a decision as to thenature and extent of the interest of the parties, but it did not appear clearlywhether the proceedings, which terminated in the decision of the High Court,had been commenced under S. 18 or S. 30. Their Lordships, however, held thathow the proceedings had commenced was not material and they made a generalstatement as to the matters which could be properly dealt with by an award andmatters which could not be so dealt with. It would appear that, in theirLordships opinion, an award could comprise only a determination of thevaluation and an apportionment of the compensation between persons whoseinterests were not in dispute and that an award was not appealable except sofar as expressly provided for in the Act, even when it was the award of theJudge, the reason being that it was in the nature of a verdict in arbitrationproceedings which retained that character even when it came to be dealt with bythe Court. Disputes as to apportionment, on the other hand, which involvedquestions of the title of the parties, were outside the scope of an award andwhen such a dispute was raised and the Collector deposited the compensationmoney in Court as he was bound under S. 31 (2) to do, "the functions ofthe award have ceased," The parties were then to litigate their titlebefore the Court and any decision given would amount to a decree, appealable assuch by the force of the Civil Procedure Code.

7. Previously in 32 I. A. 98 Ezra v. Secretary of State(05) 32 Cal. 605 : 32 I. A. 93 : 8 Sar. 779 (P. C.), which was a case ofvaluation, the Judicial Committee had held that the proceedings before theCollector, resulting in his award were administrative and not judicial and in39 I. A. 197 Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (13) 40Cal. 21 : 39 I. A. 197 : 16 I. C. 188 (P.C.) which, again, was a case ofvaluation, it had upheld the contention of Buckmaster K. C. as he then was,that an award, even when it was an award made by the Court on a reference, wasnot a decree, an argument which the learned counsel himself explained when, asLord Buckmaster, he delivered the judgment of the Board in 49 I. A. 129 RamaChandra Rao v. Rama Chandra Rao (22) 9 A. I. R. 1922 P. C. 80 : 45 Mad. 320 :49 I. A. 129 : 67 I. C. 408 (P. C.). In a later decision, 58 I. A. 259 Secy. ofstate v. Hindusthan Co-operative Insurance Society Ltd. (31) 18 : A.I.R. 1931 P.C. 149 : 59 Cal. 55: 59 I.A. 259 :133 I.C. 748 (P.C.), theJudicial Committee has re- affirmed this principle. We are concerned in thepresent case with these decisions only so far as they explain the scheme of theAct and define the functions of the Collector. The position as regards adispute as to valuation is clear enough, but that as regards a dispute as toapportionments is not equally clear. If, as the Judicial Committee appears tohold, a dispute as to apportionment involving questions of title, is not forthe Collector to consider and the apportionment by him, as provided for in. S.11 (3) of the Act, only means apportionment between persons whose interests arenot in dispute, it is not easy to give any meaning to the provision containedin S. 18 (1) which enables any interested person, who objects to the award, torequire a reference to the Court, whether his objection be inter alia to thepersons to whom the compensation is payable or the apportionment of thecompensation among the persons interested. The section pre-supposes that theCollector has decided these matters, for, the objection contemplated is anobjection to the award, as made. Nor can it be said that the sectioncontemplates a case where the interests of the various parties being admitted,the objection is only to the proportion of the distribution, for, an objectionto the persons to whom the compensation is payable is also included in thesection and the implication is that the Collector has decided this question aswell. Section 11 again requires the Collector, to enquire "into therespective interests of the persons claiming the compensation." It is,therefore, not clear how the terms of Ss. 11 and 18 can be reconciled with theview taken by the Judicial Committee of the nature of the functions of theCollector and the scope of his award. At the same time, it is not clear how S.18 can be reconciled with S. 26. While a reference made by the Collector mayinclude a question as to the title of a claimant or a question ofapportionment, the award to be made by the Court on such reference, unlike theaward made by the Collector, cannot, it would appear, include such matters.

8. If the functions of the Collector, in making an award, belimited merely to determining the amount of the compensation and, further, toapportioning it between interested parties in case there be no dispute as totheir interest, he decides no matter of the kind as would, according to theJudicial Committee, make a decision a judicial decree. He can then be held tobe always an administrative officer, on the reasoning in 32 I. A. 33 Ezra v.Secretary of State (05) 32 Cal. 605 : 32 I. A. 93 : 8 Sar. 779 (P. C.),whether he is determining the compensation or making an apportionment. But ifin dealing with the question of apportionment he can and does decide questionsof title, he may still be acting as an administrative officer, but thereasoning in 32 I. A. 93 Ezra v. Secretary of State (05) 32 Cal. 605 : 32 I.A. 93 : 8 Sar. 779 (P. C.) would not suffice to make him one and the principleslaid down in 49 I. A. 129 Rama Chandra Rao v. Rama Chandra Rao (22) 9 A. I. R.1922 P. C. 80 : 45 Mad. 320 : 49 I. A. 129 : 67 I. C. 408 (P. C.) would seem tomake his status at least problematic. When, therefore, it is said that theJudicial Committee decided in 32 I. A. 93 Ezra v. Secretary of State (05) 32Cal. 605 : 32 I. A. 93 : 8 Sar. 779 (P. C.) that up to and including the makingof his award, the Collector was an administrative officer and not a Court, thestatement, we think, requires qualification. The case was a valuation case andtheir Lordships were thinking of the award only as the conclusion of theCollector as to the amount which should be offered as compensation. In thelater cases in 39 I. A. 197 Rangoon Botatoung Co., Ltd. v. The Collector,Rangoon (13) 40 Cal. 21 : 39 I. A. 197 : 16 I. C. 188 (P.C.) and 49 I. A. 129Rama Chandra Rao v. Rama Chandra Rao (22) 9 A. I. R. 1922 P. C. 80 : 45 Mad.320 : 49 I. A. 129 : 67 I. C. 408 (P. C.) they took the same limited view of anaward on the footing that disputed questions of title or apportionment wereoutside the Collectors jurisdiction and even outside the purview of an awardmade by the Court. Their Lordships had no occasion to pronounce on the natureof the Collectors functions, if he was to decide and decided disputedquestions of title or apportionment. They certainly did not decide, as someCourts in India have taken them to have done, that a Collector, in dealing withan application under S. 18, did not act as a Court. The only reference theymade to S. 18 in 32 I. A. 33 Ezra v. Secretary of State (05) 32 Cal. 605 : 32I. A. 93 : 8 Sar. 779 (P. C.) was for the purpose of emphasising that theCollectors award was not final but subject to modification by the Court on areference. In spite of the somewhat anomalous position created by S. 26 and thedecisions of the Judicial Committee, an application for a reference under S. 18may, under the very words of the section, include a question of apportionmentor title as much as a question of valuation; and so far as the JudicialCommittee is concerned, the question of the status of the Collector, whendealing with such an application, is free from authority, except so far as thedecisions we have referred to bear upon it indirectly.

9. Under those decisions, one part of the question before usis capable of an easy answer. The question before the Collector, on anapplication under S. 18, is whether he will or will not make a reference. Bothin 39 I. A. 197 Rangoon Botatoung Co., Ltd. v. The Collector, Rangoon (13) 40Cal. 21 : 39 I. A. 197 : 16 I. C. 188 (P.C.) and the case in 49 I. A. 129 RamaChandra Rao v. Rama Chandra Rao (22) 9 A. I. R. 1922 P. C. 80 : 45 Mad. 320 :49 I. A. 129 : 67 I. C. 408 (P. C.) the Judicial Committee emphasised the factthat an award made by the Court on a reference, meaning thereby an award as tothe amount of compensation payable, was "an award made in anarbitration" and therefore not appealable as a decree. Even the Judge,dealing with a reference and making his award, would therefore seem to act, notas a Court but as an arbitrator. Accordingly, in a case where the dispute is asto valuation, the Collector, when dealing with the dispute, is anadministrative officer under the decision in 32 I. A. 93 Ezra v. Secretary ofState (05) 32 Cal. 605 : 32 I. A. 93 : 8 Sar. 779 (P. C.) and the position ofan application under S. 18 is that an administrative officer has to decidewhether he will make a reference to an arbitrator. There could be no questionof the Collector acting as a Court in such a case. There is, however, the otherpart of the question, bearing upon the case where the application relates to adispute as to the parties to whom the compensation is payable or theapportionment of the compensation between them. If the decisions of theJudicial Committee. be taken literally, no such question can arise, for theirLordships say that "in case of dispute as to the relative rights ofpersons together entitled to the money," the Collector has only to placethe money under the control of the Court "and the parties can then proceedto litigate in the ordinary way what their right and title to the property maybe." It is not clear whether their Lordships attention was not drawn tothe terms of S. 18 or whether their meaning is that although a reference mayinclude questions of both valuation and title or apportionment, the former willbe dealt with by an award, but the latter will be dealt with as in a suit, ifthe parties so desire. There are great difficulties in the way of acceptingthis interpretation, for, the proper Court for a suit may not be the Court ofthe Land Acquisition Judge and it is likelier that their Lordships had theirattention confined to S. 30, which they construed as simply authorising theCollector to refer the parties to the civil Court. The use of the expressionin the ordinary way seems to point to the latter meaning. But if disputedquestions of title or apportionment are neither for the Collector, nor for thereferee Court, so far as the award is concerned, and the parties are tolitigate those matters in the ordinary way, there can be no occasion for askingfor a reference of such questions under S. 18, in spite of the clear terms ofthe section. As, however the position is by no means clear and the existingpractice is to ask for and make such references, we shall proceed to deal withthis part of the question on its merits.

10. The language of S. 18 is that a person interested mayrequire the Collector to make a reference to the Court. The onlyqualifications are that the applicant must be a person interested, i. e., aperson claiming an interest in the compensation [S. 3 (b)] and his applicationmust be made within certain limits of time. The section does not say that it isfor the Collector to see if these conditions have been satisfied, nor that, ifthey are not satisfied, he may reject the application, but we think thesepowers are implied. We cannot agree with the Chief Court of Oudh that theCollector is bound to make a reference, whenever, and by whomsoever required,and that if he has any objections, be can only make a note of them and forwardthem to the Court. The question, therefore, is whether the Collector, who isotherwise an administrative officer, becomes a Court when he deals with anapplication for a reference and considers whether the applicant is a personinterested and whether the application has been made within the period oflimitation prescribed. He may consider these matters by himself, for the Actdoes not require him to hear the applicant or hold an enquiry. If he does holdan enquiry, he may, by virtue of the provisions of S. 14, exercise the powersof a civil Court, so far as may be as regards compelling the production ofdocuments or the attendance of witnesses and parties. Decisions which havetaken the view that when acting under S. 18, the Collector acts as a Court,proceed on one or all of the following grounds, (1) there is a cleardistinction between part II of the Act and part III where S. 18 occurs, theformer being concerned with acquisition of land through the administrativemachinery and the latter with judicial proceedings arising out of theacquisition; (2) the reference by the Collector is the first step in thejudicial proceeding which culminates in the award and the first step in ajudicial proceeding must be held to be a judicial step; (3) in dealing with anapplication for a reference, the Collector has to decide several mattersconcerning the rights of the applicant and in deciding them, he actsjudicially; (4) he deals with a part of the judicial proceeding initiated witha view to obtaining an award from the Court and is, therefore, a componentpart, as it were, of the Court to which the reference is to be made; (5) therebeing no other remedy, unless the Collector is held to be a Court and therebyjurisdiction over him assumed, even unjust awards and erroneous orders wouldremain uncorrected and great hardship and injustice would be caused.

11. Decisions which have taken the contrary view, rest onsome or all of the following grounds: (1) Section 18 itself distinguishes theCollector from the Court: (2) the Privy Council has already decided that he isnot a Court; (3) since he administrative officer up to making his award, thepresumption must be that he continues to be so, unless there are circumstancesshowing the contrary of which there are none; (4) he decides disputed questionsof a substantial character in the court of making his award and if he is not aCourt then, he cannot be one, when acting under S. 18, simply because he has todecide certain preliminary matters of a formal nature; (5) he can be requiredby a party to make a reference which is inconsistent with his being a Court;(6) he can be controlled by the Local Government by rules made under S. 55which also is similarly inconsistent; (7) he does not act judicially and evenif he does, he cannot be held to be a Court on that ground alone; (8) he doesnot decide any disputed question between two parties; (9) he has no power tohear and determine any question on the merits. Some of the reasons given insupport of the view that the Collector is not a Court, may be disposed of atonce. The first reason in our list is obviously a bad reason, for, S. 18 has noreference to the status of the Collector as such, or his status, asdistinguished from that of a Court, but only provides for a reference to theCourt, as specially defined in the Act. The Collector may well be a Courthimself, according to the ordinary connotation of the term, although requiredby the section to refer an objection to the Court, that is to say, the Courtdesignate according to the definition contained in S. 3 (d). The second reasonis also a bad reason, because, as we have already explained, the Privy Councilhas not decided that in dealing with an application under S. 18, the Collectoris not a Court. The third reason, in our view, is no reason at all, for, we areunable to see how there can be a presumption of continuity as regards thestatus of a public officer, dealing with different matters at different,stages. Nor can we agree that the sixth reason is sound, for, in a way it begsthe question. The fact that S. 55 authorises the Provincial Government to makerules for the guidance of officers in all matters connected with theenforcement of the Act, does not involve that the Government has power tocontrol the Collector by rules even in the discharge of functions, if he hasany, which are judicial in the true sense; and the existence of S. 55, wethink, cannot be made a ground for denying him the status of a Court, if hisstatus appears otherwise to be of that character. The true position is that ifthe Act has given the Collector certain judicial functions and rules are framedto control the exercise of those functions, the rules will be ultra vires.Lastly, the eighth reason appears to us to ignore that a reference may be askedfor on a question of apportionment as well, or on a question of the right ofsomeone to receive a part or the whole of the compensation and in such a casethere will almost certainly be two parties. Persons who deny the applicantsclaim will oppose the application.

12. Turning now to the reasons given in support of the viewthat the Collector, acting under S. 18, acts as a Court, the last reason in ourlist may at once be put on one side, for, it is not a legal but a sentimentalreason. Yet it is the one reason, so far as we can see, which has influencedthe Courts most strongly in holding the Collector to be a Court and thusproviding some remedy, where otherwise there would be none, against unjustawards and erroneous refusals to refer. But a question of law or jurisdictioncannot, in our view, be decided on such considerations as these. The second andthe fourth reasons put the same ground in different ways and are not in ourview, correct. In our opinion, the proceedings before the Collector are not apart of the judicial proceedings before the Court and are concerned with thequestion as to whether the latter proceedings will be allowed to be initiatedat all. The latter proceedings commence, not with the application made beforethe Collector, but with the statement submitted by the Collector to the Courtunder S. 19. The proceedings before the Collector constitute a chapter bythemselves, antecedent to the proceedings in Court, as in the case where theCollector considers under S. 70, Stamp Act whether he will sanction aprosecution or when the Advocate-General considers, under Cl. 26, LettersPatent, whether he will certify a case, decided by the High Court in itsoriginal criminal jurisdiction, as fit for review. We are not insensible thatthe analogies we have cited are not, in all respects, appropriate, but theyserve to make it clear that where proceedings before a Court depend for theirinitiation on leave granted or a reference made by another authority, theproceedings before that authority as to such leave or reference form no part ofthe subsequent proceedings before the Court. The sanctioning or referringauthority cannot, therefore, be held to be a Court on the ground that he dealswith a part of the judicial proceedings nor to be a component part of somenotional Court, composed of himself and the Judge.

13. Both the sets of reasons we have summarised above referto judicial acting and adopt that to be a test as to whether an authority is oris not a Court. It is therefore important that the true meaning of the termacting judicially should be understood. It is often overlooked that judicialacting, such as will make the actor a Court, is not merely acting judicially inthe popular sense, that is to say, acting with fairness and impartiality, on aproper consideration of all relevant materials and on giving a proper opportunityto all the contending parties to present their respective cases. A privatearbitrator or an administrative officer may, or may have to, act judicially inthis sense, but that, by itself, will not make either a Court. Actingjudicially, in order to be a sign of acting as a Court, must be acting as apart of the judicial machinery of the State, charged with the duty ofdetermining the rights of one subject against another or questions of rightbetween the subject and the State, and discharging its fractions according tothe established form of judicial procedure. A Collector acting under S. 18,cannot be a Court unless he satisfies this test although he may be required toact justly and decide questions of law and although his determination mayaffect the interests of parties. He must, in other words, be a Court in law.The argument founded on acting judicially which is familiar in cases of thiskind, will be found fully examined in (1892) 1 Q. B. 431 Royal Acquariam andSummer and Winter Garden Society Ltd. v. Parkinson (1892) 1 Q.B. 431: 61 L. J.Q. B. 409: 66 L. T. 513 : 40 W. R. 450, particularly in the judgment of Fry L.J. But it an authority, in order to be a Court, most not only act judicially inthe popular sense but must also be a Court in law, the relevant enquirynaturally is what a Court in law means. No one has attempted a completedefinition. But Mr. Gupta, who appeared before us for the Land AcquisitionCollector and to whom we are much indebted for the assistance he rendered,discussed the question on principles and referred us to three decisions. Theywere-(1931) A. C. 275 Shell Co. of Australia v. Federal Commissioner ofTaxation (1931) 1931 A. C. 275 : 100 L. J. P. C. 55 : 144 L. T. 421, a decisionof the Privy Council, (1921) 2 A. C. 570 In re Clifford and Osullivan (1921) 2A. C. 570 : 90 J. L. P. C. 244, a decision of the House of Lords, and (1918) 2K. B. 405 Co-partnership Farms v. Harvey-Smith (1918) 2 K. B. 405 : 88 L. J. K.B. 472 : 118 L. T. 541, a decision of the High Court in England in the KingsBench Division. We do not propose to discuss these decisions in detail, butshall only extract from them certain principles which appear to us to furnishan answer to the question before us. The considerations which have been relied onin support of the view that the Collector, acting under S. 18, is a Court, wereall held insufficient by the Privy Council in a series of negative propositionswhich it laid down in the first of the cases above mentioned.

14. "1. A tribunal is not" observed theirLordships,

necessarily a Court in the strict sense because it gives afinal decision. (2) Nor because it bears witnesses on oath. (3) Nor because twoor more contending parties appear before it between whom it has to decide. (4)Nor because it gives decisions which affect the rights of subjects. (5) Norbecause there is an appeal to a Court. (6) Nor became it is a body in which amatter is referred by another body.

15. It was further observed that one of the attributes whicha Court truly so called, must possess was that it must be a tribunal throughwhich the judicial power of the sovereign authority to decide controversiesbetween its subjects or between its subjects and itself as to rights relatingto life, liberty or property, was exercised by the giving of binding andauthoritative decisions. But when an authority whose status falls to beconsidered, is one constituted by the sovereign power, either mediately orimmediately, and performs function similar to those performed by a Court, itbecomes a matter of difficulty to decide whether the above test is notsatisfied. Cases of that kind are met by another principle which the PrivyCouncil adopted from Isaacs J. of the High Court of Australia and repeated withits approval in the case cited.

There are many functions which are either inconsistent withstrict judicial action... or are consistent with either strict judicial orexecutive action... If consistent with either strictly judicial or executiveaction, the matter must be examined further.

16. The judgment of the Privy Council -was delivered bySankey, L. J. who, AS Sankey J., had laid down in (1918) 2 K, B, 405Co-partnership Farms v. Harvey-Smith (1918) 2 K. B. 405 : 88 L. J. K. B. 472 :118 L. T. 541 what the further considerations were. His Lordship observed thatwhen a tribunal acted in a manner similar to that of "Court of justice,one had to look to its (1) Constitution, (2) functions and (8) procedure inorder to determine if it was a tribunal of a judicial character. It is thereforenot enough that the Collector, acting under, S. 16, has to act judicially inthe since of acting impartially, or acts in a manner, similar to that of aCourt, in deciding the two questions mentioned in the section, or passes orderswhich affect the interests of parties. Some further indicia are required toestablish that he is a Court. It is clear that no number of negativepropositions, such as those enumerated by the Judicial Committee will answerthe question in either way, for, although the existence of certaincharacteristics may not prove that the Collector is a Court, at the same time,that fact does not prove that he is not a Court. On the other hand, a singlecircumstance, showing that he is not a Court will be decisive. Accordingly, itappears to us that in examining the further matters, viz., the constitution,the procedure and the functions, it will be more useful to search for anegative rather than a positive incident. Although it is extremely difficult tosay what a Court is, it is comparatively easier to say what a Court is not

17. In our opinion, the fact that the applicant under S. 18has no right of audience before the Collector and that the latter is notrequired to act in accordance with the established form of judicial procedure,or some procedure analogous thereto, is quite sufficient to exclude him fromthe category of a Court, if not also the fact that the matter for decisionunder S. 18 is not a matter concerning the merits. It is one of the fundamentalcharacteristics of a court that its proceedings shall be public and the partiesshall be heard. We are aware that in this Court the District Judge, actingunder S. 40A, Bengal Agricultural Debtors Act, who is debarred from hearing theparties, has been held to be a Court, but that decision can perhaps bejustified on the ground that the District Judge is otherwise a Court and so itwas thought that the Debtors Act had only added a new matter to hisjurisdiction subject to certain restrictions as to procedure and, therefore, heremained amenable to the revisional jurisdiction of this Court. Here, theCollector is otherwise a purely administrative officer. When such an officer isgiven power to consider whether he will refer to the Court a matter decided byhim in his administrative capacity and he can make his decision in his privateroom, without hearing anyone and without following the procedure which Courtsusually follow, we find it impossible to hold that in considering whether hewill or will not make a reference, he acts as a Court. Constitution,subject-matter for decision and procedure are all against such a view beingtaken. The answer to the first part of the question must, therefore, be in! thenegative.

18. The second part of the question is whether, assuming theCollector is a Court, he is a Court, subordinate to the High Court within themeaning of S. 115, Civil P. 8. The learned referring Judges have expressed noopinion on this part of the question. Before us, the petitioner was at pains toestablish that the Collector was a civil Court within the meaning of S. 3,Civil P. C., and being of a grade inferior to that of a District-Court, wassubordinate to that Court and the High Court. On behalf of the opposite party,Mr. Gupta conceded that in order to make out subordination of the Collector, itwas not necessary to establish that he was a civil Court, as contemplated in S.3 of the Code. In our opinion, this concession was rightly made. Section 115 ofthe Code only speaks of a Court subordinate to the High Court and not of acivil Court so subordinate. Again, the object of S. 3 is not to; define orenumerate Courts which are subordinate to the High Court, but simply to declarethe order of subordination, for the purposes of the Code, as respects theordinary hierarchy of Courts established under the Civil Courts Act, If a newCourt was to be established to-day and made subordinate to the High Court, suchof its orders as were not appealable, would be revisable under s. 115, unlessthe jurisdiction under that. section was otherwise excluded. On the assumptionthat the Collector is a Court, the relevant enquiry, therefore, is not whetherhe is a civil Court, but whether he is subordinate to the High Court. In spiteof the concession made by the opposite party, the petitioner insisted that theCollector was a civil Court, because he decides matters of a civil nature andis authorised to take evidence. Having established, as he thought, thatproposition, he attempted to establish, subordination to the High Courtthrough. S. 3 of the Code, on the footing that the District Court being theprincipal Court in the district, the Collectors Court must necessarily be ofan inferior grade. In our opinion this argument is mistaken. In the firstplace, barring the High Court, S. 3 of the Code has no reference to any Courtother than the civil Courts, established under the Civil Courts Act. In thesecond place, it is not easy to see how inferiority of the Collectors Court tothe District Court can be establish, ed. In its relation to the Collector, theDistrict Court is, by virtue of the definition of Court in S. 3 (d) of theAct, a Court of original jurisdiction. No appeal lies from the Court of theCollector to the District Judge and if the latter can interfere with the awardon a reference, that power does not establish the subordination of theCollector, acting as a Court under S. 18, but -only of the Collector, acting asan administrative officer in making the award.

19. It was also contended that since the Collector had tomake a reference to the Land Acquisition Judge and since the Land AcquisitionJudge was unquestionably subordinate to the High Court the Collector was doublysubordinate. The principle of this argument might derive some support from thedecisions in 49 Cal. 931 [LQ/CalHC/1922/91] Allen Bros. & Co. v. Bando & Co., (23) 10 A.I. R. 1923 Cal. 169 : 49 Cal. 931 [LQ/CalHC/1922/91] : 70 I. C. 371, and 36 C. W. N. 78 H. D.Chatterjee v. L. B. Trivedi (22) 9 A.I.R. 1922 Cal. 427 : 49 Cal. 528 [LQ/CalHC/1921/313] : 26 C.W. N. 78 : 68 I. C. 274 but having regard to the -decisions of the JudicialCommittee as to the nature of an award, even as made by the Judge, and of theproceedings relating thereto, it rests upon the facts of the present case, onan extremely precarious ground. At least so far as valuation cases areconcerned, the Judicial Committee has held that the proceedings, even when theyreach the Judge, are of the nature of an arbitration. In such cases, therefore,the Land Acquisition Judge is not a Court at all but only an arbitrator -and nosubordination of the Collector to the High Court could be established throughhim. As regards apportionment cases, the position, as we have pointed out, isextremely obscure but so much seems to have been held that the proceedingsbefore the Judge, so far as they relate to claims of title, are not in thechain of the proceedings under the Land Acquisition Act but partake of thenature of an ordinary litigation over civil rights in a matter with which theCollector has or had no concern. If that be so, then, in the words of BankinJ., as be then was, in 19 Cal. 931 Allen Bros. & Co. v. Bando & Co(23) 10 A. I. R. 1923 Cal. 169 : 49 Cal. 931 [LQ/CalHC/1922/91] : 70 I. C. 371, between theCollector and the High Court, there is no link but a gap. The one ground reliedupon in the cases which have held that the Collector, even if a Court, is notsubordinate to the High Court, is that the High Court has no appellatejurisdiction over his award. That reason is perhaps not very accurate, for theassumption only is that the Collector, acting under S. 18, is a Court and notalso that he is a Court in making his award as well. But even his order unders. 18, is not subject to the appellate jurisdiction of any other Court. If ithad been appealable to the District Judge, but not further appealable to theHigh Court, subordination could have been found and revision under S. 115,would lie. But that is not the position. The position in short is that there isnothing to show that apart from his functions under S. 16, the Collector is inany way subordinate to the High Court and that being so, subordination must befound, if at all, qua S. 18, itself. As already shown it cannot be found thereand the result is that subordination is not proved.

20. For the reasons given above, we are of opinion that indealing with an application under S. 18, Land Acquisition Act, the Collectordoes not act as a Court and even if he does, he does not do so as a Courtsubordinate to the High Court: His position as Mr. Gupta rightly pointed out,is closely similar to that of the Chief Revenue Authority under s. 51 of theold Income-tax Act (7 [VII] of 1918) who had power to refer to the High Court aquestion of law, but could not be compelled to do so, except by an order in thenature of a mandamus under 8. 45, Specific Belief Act on the footing that hewas a person holding a public office. It required an amendment of the Act, tomake his successor, the Commissioner of Income-tax, subordinate to the HighCourt, in the ordinary sense, in the matter of the duty to make a reference.There remains the revision case itself which also has been referred to a FullBench under the rules of the Court. Since, we are holding that the Collectorsorder is not liable to revision by the High Court, it necessarily fails. In theresult, the question referred is answered in the negative as to both its parts.The rule is discharged but there will be no order as to costs. We cannot leavethis case without placing on record our opinion as other High Courts have donebefore us, that it is essential in the ends of justice that the Collectorshould be placed under some measure of control. There was, before us, a veryfull citation of previous decisions which enabled us to acquaint ourselves withthe kind of orders made, of which parties had occasion to complain before theHigh Court. Those orders would convince anyone that a strong case exists formaking the Collector subject to effective superintendence. Whether suchsuperintendence should be provided for by legislation or by rules, it is notfor us to suggest, but since intricate problems often arise in connection withthe question as to whether a person is a person interested the better course,in our opinion would be to make the Collectors order revisable by a Court.

Biswanath Somadder, J.

21. I agree.

Blank, J.

22. I agree.

.

Khetsidas Gangaram vs. First Land Acquisition Collector, Calcutta (14.06.1946 - CALHC)