1.These appeals arise from the order of the High Court of Rajasthan at Jaipur Bench dated December 20, 1991 made in Civil Revision Petition Nos. 591 of 1991 and 646 of 1990. The facts lie in a short compass. The Government of Rajasthan exercising the power under Section 4(1) of the Rajasthan Land Acquisition Act, 1953 for short 'the Act' published on June 9, 1960 to acquire 552 bighas and 8 biswas of land at Village Bhojpura Chak Sudershanpura, which is now part of Jaipur city, for planned development of that city. An award made on January 9, 1961 excluded 4 bishas, 1 biswa of land belonging to one Chotelal. Subsequently the Land Acquisition Officer made an award on January 21, 1974 after respondents Radhey Shyam, Naval Kishore and Shyam Sunder had purchased a part of he land from Chotelal by registered sale deed. In that award the Land Acquisition Officer deducted the value of Rs 2131.68 towards the value of 66.6 sq. yards of land allotted to each of the respondents in lieu of 372 compensation awardable to them. The possession of the acquired land was taken on December 2, 1980 and it was handed over to the appellant Jaipur Development Authority. In the reference made under Section 18, the civil court confirmed the award of the Land Acquisition Officer but corrected certain double deduction of certain amounts made therein. Thereafter some persons filed writ petitions for grant of land in lieu of compensation and the respondents filed an execution to enforce the award passed by the civil court on the reference under Section 1 S. The appellant raised an objection as to the executability of the award for allotment of the sites made in lieu of compensation. The executing court partly upheld that objection but on revision by respondents the Division Bench held that it was not permissible for the appellants to raise the objection in execution of the award and accordingly allowed the revision. Thus these appeals by special leave.
2.The contention of the appellants is that the Land Acquisition Officer had no jurisdiction to allot part of the acquired land, in lieu of compensation and that, therefore, the award to that extent was a nullity, which objection could be raised at any stage including in execution of that award as upheld by the civil court.
3.Shri Harish Salve, learned Senior Counsel appearing for the respondents contended that under Section 31(4) of the Act, the Land Acquisition Officer had power to enter into an arrangement with the landowners which power is without any limitation, though similar limitation was found in sub- section (3) of Section 31. Therefore, the award directing allotment of the land in lieu of compensation was perfectly legal. Having allowed the award to become final, it is no longer open to the appellant to raise the contention of lack of jurisdiction or nullity of the award of the Collector as affirmed by reference court, on the execution side. He further contended that it was the policy of the Government to allot the plots in lieu of compensation and it was allowed in respect of others. The respondents having foregone the right to receive compensation in respect of those lands, it is no longer open to the appellant to contend that the Land Acquisition Officer had no power to allot lands in lieu of compensation.
4.Having considered and given our anxious consideration to the contentions of learned counsel on either side, the question which emerges is, whether the Collector had power under any provision of the Act to award land in lieu of compensation from the acquired lands or any other lands. His power is traceable to Section 11 of the Land Acquisition Act. He is required to enquire into matters mentioned therein to determine the market value thereof and to make the award. Section 11 postulates that the Collector shall proceed to enquire into the objection which any person interested in the land may make to (1) the measurement of the land acquired or (11) respective interests of the persons claiming the compensation and he shall make the award as to:
(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 has information, whether or not they have respectively appeared before him.
5.Therefore, the power expressly given to the Land Acquisition Officer is only in respect of enquiry into the true area of the land acquired and determination of the compensation which in his opinion should be allowed to the acquired land and apportionment of the compensation among the claimants who appeared before him or persons known or believed to be interested in the land whether appeared or not. It excludes by implication any less power other than that given to the Collector by Section 1 1. The award is only an offer of the above matters. On making an award under Section 12(2), the Collector shall give a notice of his award to the persons interested who are not personally present or represented through their counsel at the time of making the award. Under Section 18 any person interested and who had not accepted the award may, by written application to the Collector, require him to make a reference with respect to (1) the measurement of the land or (11) the amount of compensation, (111) the person to whom it is payable or (IV) the apportionment of the compensation among the persons interested. On reference so made the civil court is enjoined to enquire, as court of original jurisdiction, into the questions so referred. The claimants, the Collector and the person interested are entitled to adduce evidence in proof or disproof of the referred questions and the civil court needs to decide those questions and no more. On reference and determination made under sub-section (1) of Section 23 of the amounts awardable thereunder or any other amount awarded under any or all other clauses thereunder including sub-section (2), an award shall be made by court. Such award by operation of sub- section (2) of Section 26 shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9) respectively of the Code of Civil Procedure.
6.After making the award under Section 11 the Collector [sic under subsection (1) of Section 3 1 ] shall tender payment of the compensation awarded by him to the persons interested and entitled thereto according to the award and shall pay it to them unless prevented by someone or more of the contingencies mentioned in sub-section (2) and the proviso with which we are not concerned. Sub-section (3) gives an indication of the powers of the Collector in awarding any other land in exchange and in lieu of the payment of compensation, namely, notwithstanding anything in Section 31 the Collector may, with the sanction of the appropriate Government, instead of awarding a money compensation in respect of any land, he may make any arrangement with any person "having a limited interest in such land", either by grant of other land in exchange, the remission of the land revenue, or 374 other such lands held under the same title, or in such other way having regard to the interest of the parties concerned. Sub-section (3) lifts the rigour of payment under sub- sections (1) and (2) of Section 31 and gives power to the Collector, that too, with the prior sanction of the appropriate Government, that instead of awarding money compensation in respect of the acquired land, he could make any arrangement with the person who is having only a limited interest in the land under acquisition and grant him either any other land in exchange to the land acquired or remittance of the land revenue on other lands held by the landowner or in some other way as may be equitable, having regard to the interest held by the limited owner. Sub- section (4) provides that nothing in this last sub-section i.e. sub-section (3) shall be construed as interfering with or limiting the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.
7.A reading of sub-section (4) of Section 3 1, in our considered view, indicates that the Land Acquisition Officer has no power or Jurisdiction to give any land under acquisition or any other land in lieu of compensation. Sub- section (4) though gives power to him in the matter of payment of compensation, it does not empower him to give any land in lieu of compensation. Sub-section (3) expressly gives power "only to allot any other land in exchange". In other words the land under acquisition is not liable to be allotted in lieu of compensation except under Section 31`(3), that too only to a person having limited interest. If the contention of the learned counsel for the respondents, that while awarding compensation the Collector (Land Acquisition Officer) has a higher power than the limited power given under sub-section (3) of Section 3 1, it would run counter to the scheme envisaged thereunder and would result in defeating the public purpose. The problem could be looked at from a different angle. Under Section 4(1), the appropriate Government notifies a particular land needed for public purpose. On publication of the declaration under Section 6, the extent of the land with specified demarcation gets crystallised as the land needed for a public purpose. If the enquiry under Section 5-A was dispensed with, exercising the power under Section 17(1), the Collector on issuance of notice under Sections 17, 9 and 10 is entitled to take possession of the acquired land for use of public purpose. Even otherwise on making the award and offering to pay compensation he is empowered under Section 16 to take possession of the land. Such land vests in the Government free from all encumbrances. The only power for the Government under Section 48 is to denotify the lands before possession is taken. Thus, in the scheme of the Act, the Land Acquisition Officer has no power to create an encumbrance or right in the erstwhile owner to claim possession of a part of the acquired land in lieu of compensation. Such power of the Land Acquisition Officer if is exerciser would be self-defeating and subversive to public purpose.
8.The question then is, whether it is open to the appellant to raise the objections on the execution side as to allotment of acquired land under the award. We have already said that what is executable is only an award under 375 Section 26(2), namely, the amount awarded or the claims of the interests determined of the respective persons in the acquired lands. Therefore, the decree cannot incorporate any matter other than the matters determined under Section 1 1 or those referred to and determined under Section 18 and no other. Since we have already held that the Land Acquisition Officer has no power or jurisdiction to allot land in lieu of compensation, the decree even, if any, under Section 18 to the extent of any recognition of the directions in the award for the allotment of the land given under Section 11 is a nullity. It is open to the appellant to raise the invalidity, nullity of the decree in execution in that behalf. Accordingly we hold that the execution proceedings directing delivery of possession of the land as contained in the award is, invalid, void and inexecutable. Accordingly it is set aside.
9.It is stated that Government has formulated a policy to allot any other suitable site to the displaced persons and a request is made to give suitable directions. No such policy has been brought to our notice. Therefore, we cannot give any such specific directions. It is also stated that some other properties were allotted to others, in pursuance of the directions issued by the Collector in the award dated January 9, 1994. It is stated by the learned counsel for the appellant that appeals have been filed in this Court and all the matters are pending and no one is allowed to have the benefit under the awards. In view of such statement we cannot give any specific direction for allotment of sites.
10.Appeals are accordingly allowed but the parties are directed to bear their own costs.