Ajit Kumar Nayak, J. - (1.) The short question that is involved in this appeal is whether a Land Acquisition Judge, having made an award after contested hearing, and thereby finally disposing of a reference case from the Collector under section 18 of the Land Acquisition Act, can entertain a belated application for setting aside such award under Order 9 Rule 13 read with section 151 CPC together with a prayer for being impleaded under Order 1 Rule 10 CPC by a person who was neither a party, nor appeared in the Land Acquisition proceeding before the Collector, nor made any application to the Collector for such reference. Having considered the judicial decisions on this point, and the scheme of the Land Acquisition Act read as a whole - particularly the provisions under part III of the said Act - we are of definite opinion that the Land Acquisition Judge has no jurisdiction to deal with any such objection. Nor the Act contemplates moving such an application for impleadment by such person who was not a party before the Land Acquisition Collector, and to get his right decided either under section 18 or under section 30 of the said Act. In other words, a person who has not applied to the Collector and whose name is not mentioned in the reference by the Collector and where the Collector has not made any reference to resolve any such dispute raised by such person by the L.A. Judge, the person concerned cannot come straightway to such court or such Judge for redressing his grievance either under section 18 or under section 30 of the said Act. This is exactly the order passed by the Special Land Acquisition Judge, Alipore, when he refused to entertain and rejected the prayer of the appellant under Order 9 Rule 13 CPC, read with sections 30 and 53 of the L.A. Act, by his order dated 22.8.85. This appeal is directed to this court against the said order.
(2.) Briefly stated the facts relating to this appeal are as follows : An application under Order 9 Rule 13 lead with section 151 CPC was made by the appellant before the Special Land Acquisition Judge, Alipore, on 24.5.85, to set aside the award already passed in Case No. 61/75 (V), on a reference under section 18 of such Act by the L. A. Collector, Calcutta. A Land Acquisition Proceeding for acquisition of about 17 Bighas of land in Tollygunge area of Calcutta, for construction of the Metro Railway System, Calcutta, was initiated by the L. A. Collector, Calcutta, in pursuance of notification under section 4, and after service of notice under section 9 of the said Act, inviting applications from interested persons including (1) Reference claimant (opposite party-respondent) Tollygunge Club Ltd., (2) Md. Mobinddin, Mutwally to the Wakf Estate of Prince Golam Md. shah, (3) The Commissioner of Wakf, West Bengal and (4) The Commissioner of Corporation of Calcutta. The aforesaid 4 interested persons filed statements of claims before the Collector and a joint award under section 12 of the Act was made in their names on 4.3.75. Possession of said land was taken up on 29.11.76. The aforesaid claimants also filed petition before the Collector for reference to the Land Acquisition Judge both for enhancement of valuation and for apportionment under section 18 of such Act. The valuation reference case was registered no. 61/75 (V) before the L.A. Judge at the instance of the referring claimant-respondent, Tollygunge Club Ltd. and the apportionment reference case as No. 63/75 (A) at the instance of all the four said claimants. Such apportionment reference case No. 63/75 (A) was disposed of by a judgment and decree on 25.5.78 and the Tollygunge Club was awarded the entire amount of compensation less the capitalised value of the proportionate reserved rent which was awarded to claimants 2 and 3 as stated above. The valuation reference case No. 61/75 (V), at the instance of the Tollygunge Club, (claimant-respondent) was disposed of on 30.5.83 by an award enhancing the valuation. Now, it has been urged by the appellant-petitioner, Sahebzada Md. Wasi Ahmed Shah by filing a petition on 24 5.85 that as a descendant of Yasin Sultan, one of the sons of Tipu Sultan, to whom this property originally belonged and having a superior interest as lessor of such leasehold property, leased out by deeds to the Tollygunge Club Ltd., he is an interested person whose right and interest have been vitally affected by the passing of the award behind his back which might be deemed to have been disposed of ex parte against the appellant. It has been urged that the L. A. Collector refused to entertain his prayer and claim and as a matter of fact by practising conspiracy and fraud by different agencies he is going to be deprived of his valuable right and interest. It has been further urged that no notice of such Land Acquisition Proceeding was served upon him and he was prevented by sufficient cause from appearing either before the Collector or before the Acquisition Judge, in the Land Acquisition Case No. 61/73. In continuation of his petition dated 24.5.85 for setting aside such award, appellant also made a petition for impleadment under Order 1 Rule 10 CPC. The appellant-petitioner appeared in person and submitted written arguments. The learned Special Land Acquisition Judge rejected such prayer of the appellant-petitioner on the findings that such petition is not entertain able as beyond his scope and jurisdiction, not being referred to by the L.A. Collector under section 18 or 30 of the L.A. Act. The learned Special Land Acquisition Judge has further found that the remedy of the petitioner-appellant lies in a different forum by filing a suit before the proper court and not in the form as he has prayed for.
(3.) Undisputedly, the proceeding for acquisition of the aforesaid land was started after due notification under section 4 on 8.2.74, and service of notice under section 9 on aforesaid four persons including the respondent, Tollyguange Club Ltd. It is also an undisputed fact that Tollygunge Club was in occupation of the acquired lands on the relevant day allegedly claiming to have leasehold interest with permanent heritable and transferable mourashi right in perpetuity and for ever. This has been denied by the appellant-petitioner according to whom the right to receive a portion of such compensation was reserved in favour of the lessor by deeds of lease executed in favour of the claimant-respondent, Tollygunge Club. It has been also alleged by the appellant-petitioner that all his attempts and efforts to move the Hon'ble Court under Article 226 and the L.A. Collector subsequently failed as the Hon'ble Court directed him to get the matter settled at the level of the L.A. Collector who, in his turn, kept silent and subsequently pleaded inability to do anything as the matter had already been disposed of by passing an award in the aforesaid L.A. Case no. 61/75. It has been asserted, therefore, by the appellant-petitioner that his, remedy lies only in getting the said award passed by the L.A. Judge set aside and his being impleaded as a party thereto and hearing afresh of the claims of the respective claimants. The learned Judge, according to the appellant, went wrong and misdirected himself by not impleading him as a party on a mis-reading of section 53 of the L. A. Act and such power can be invoked by the Judge concerned without reference to section 30 of the L.A. Act.;