JUDGMENT
Y.P. Nargotra, J.
1. Whether state can maintain an appeal against a judgment and passed upon a reference Under Section 18 of Land Acquisition Act in which it was not a party; is the question arising for consideration. The relevant facts of the case are that under the provisions of Land Acquisition Act (hereafter called the Act). Land situated at Sharief Abad, District Budgam was acquired for construction of Electric Grid Station. The part of the land acquired. The Collector assessed the compensation at the rate of Rs. 34,600 per kanal. The owner/respondent did not accept the compensation at that rate and requested the Collector for making a reference Under Section 18 of the land Acquisition Act to the District Judge, Budgam. Learned District Judge entered the reference in which Petitioner No. 2, Chief Engineer was also a party, and enhanced the rate of compensation from Rs. 34,600 to Rs. 2,00,000 per kanal and assessed the compensation payable to the petitioner at Rs. 1,39,59,969 in which included the compensation for fruit trees, two sheds etc. and solarium.
2. The Collector has not filed any appeal Under Section 54 against the award and judgment of learned District Judge. However, the petitioner State and Chief Engineer have sought leave to appeal mainly on the plea that Collector being hand-in-glove with the claimant failed to file the appeal whereby the petitioner state has been prejudiced and consequently has been saddled with the liability and being as such an aggrieved and interested party should be allowed to file appeal against the judgment and award dated 3.12.1998 passed by learned District Judge Budgam.
3. The respondent No. I/Owner has contested the application of the petitioners inter-alia on the grounds the State being not a necessary party in the reference Under Section 18 of the Act has no right to maintain the appeal.
4. The right of appeal is not an interest right or common law right but it is a statutory right. Against an order of award passed by the Court Under Section 18 appeal lies to the High Court under Section 52 of the Act any of the parties to the proceedings Under Section 18 of the Act if aggrieved of the award can maintain an appeal in exercise of its statutory right. The petitioner No. 2 Chief Engineer was a party in the proceedings as such he can in the exercise of a statutory right maintain the appeal and as such was not required to seek leave of this Court for that purpose.
5. The State of J&K is also seeking leave to appeal. Admittedly state was not a party to the proceedings taken on reference Under Section 18 of the Act before the Learned District Judge. So the question formulated above has arisen for consideration the provisions contained in Section 48 have a bearing on this question which reads as under:
“(1) When the provisions of this Act are put in force for the purpose of acquiring land and at the cost of any fund controlled or managed by a local body or of any person or body of persons, whether corporate or not, the charges of and incidental to, such acquisition shall be defrayed from or by such fund or such person or body of persons.
(2) In any proceedings held before a Collector or Court in such cases the local authority or the person or the body of persons concerned may appear and adduce evidence for the purpose of determining the amount of compensation:
Provided that, no such person or a body of persons shall be entitled to demand a reference under Section 18.”
6. Section 48 of Jammu & Kashmir Land Acquisition Act is in para materia with Section 50 of Central Land Acquisition Act. The scope and effect of Section 50 qua the right of appeal of the authority on whose behalf land had been acquired came up for consideration before a constitution. Bench of Hon’ble Supreme Court. Their Lordships of the majority view in case Awas Evam Vikas Parishad v. Gyan Devi and Anr., AIR 1995 SC 724 held as follows:
“Sub-section (2) of Section 50 enables a local authority to appear in any acquisition proceeding at the stage of determination of compensation before the Collector or the reference Court and adduce evidence for the purpose of determining the amount of compensation. The object underlying the aforesaid provision appears to be to safeguard the interests of the local authority who would be required to pay the amount of compensation that would be determined by the Collector or by the Reference Court by enabling it to adduce evidence having a bearing on the amount of compensation before the Collector or the Court and thereby assist them in making a fair determination. Such protection was necessary because in the matter of local authority for whom the land is acquired does not stand on the same footing as the Government. While making the award the Collector acts as an agent of the Government and functions under its administrative Control. Prior to the insertion of the proviso in Sub-section (1) of Section 11 of the LA. Act by the Land Acquisition (Amendment) Act, 1984, there were administrative instructions requiring preliminary valuation by the Collector found that the eventual award would substantially exceed the provisional valuation he was required to obtain further instructions from the higher authorities. Now the proviso inserted in Sub-section (1) of Section 11 by the Amendment Act of 1984 lays down the statutory requirement that no award shall be made by the Collector without previous approval of the appropriate Government or of such Officer as the appropriate Government may authorize in this behalf. There is no similar provision requiring the approval of the local authority. Sub-section (2) of Section 50 is the only provision which affords a certain degree of protection to it in the matter of determination of the amount of compensation by the Collector as well as the reference Court. Keeping these considerations in view we are of the opinion that Sub-section (2) of Section 50 must be construed as conferring as right on the local authority for whom the land is being acquired to participate in the acquisition proceedings at the stage of determination of the amount of compensation before the Collector as well as the reference Court.
The said right can be effectively exercised by the local authority only if it has information of the proceedings which are pending before the Collector as well as the reference Court. In other words the right conferred under Section 50(2) of the L.A. Act carries with it the right to be given adequate notice by the Collector as well as the reference Court before whom the acquisition proceedings are pending on the date on which the matter of determination of the amount of compensation will be taken up. Service of such a notice, being necessary for effectuating the conferred on the local authority under Section 50(2} of L.A. Act, can, therefore, be regarded as an integral part of the said right and the failure to give such a notice would result in denial of the said right unless it can be shown that the local authority had knowledge about the pendency of the acquisition proceedings before the Collector or the reference Court and has not suffered by prejudice on account of failure to give such notice.
The only limitation on the right conferred by Section 50(2) is that contained in the proviso to Section 50(2) which precludes the local authority from demanding a reference under Section 18, In the report of the Select Committee the policy underlying the proviso has been thus explained:
“……..We cannot however agree that the authority should be permitted to appeal from the Collector’s award. We have not given to Government itself the power to make this appeal because the Collector is only the agent of the Government in the acquisition of land; his action is taken under the rules laid down for his guidance which include a preliminary valuation and these rules ordinarily provide and sought to provide, that when the Collector finds cause to anticipate that his eventual provisional estimate, he shall stay all proceedings till he receives the further instructions of higher authority. No local authority or company is compelled to proceed under the Land Acquisition Act. If it can procure land more cheaply by private negotiations, it is certainly at liberty to do so but if elects to set in motion the very special power given to the Government for public objects, it can expect no higher privileges and powers than those given to Government itself.”
Having regard to the difference between the position of a local authority for whom the land is acquired and the Government in the matter of determination of the amount of compensation by the Collector to which the reference has been made by us earlier and especially after the insertion of the proviso in Section 11(1) in L.A. Act by the Amendment Act of 1984 the fact that no right has been conferred on the Government to seek a reference under Section 18 may not be a sufficient justification for denial of such a right to a local authority. While it is true that a local authority is not compelled to proceed under the L.A. Act and if it can procure land more cheaply by private negotiations it is certainly at liberty to do so but there may be cases, as in the case of acquisition of land for the Board, where it is permissible for a local authority to take possession of the land which is being acquired under Section 17(1) before the making of the award by the Collector. In such a case the local authority would have no choice but to pay the amount of compensation as determined by the Collector. We have adverted to these aspects not with a view to find fault with the legislative policy underlying the enactment of the proviso in Sub-section (2) of Section 50 of the L.A. Act but only to highlight the significance of the protection that has been made available to a local authority in the matter of determination of compensation under Sub-section (2) of Section 50 of the L.A. Act.
Thus, on an interpretation of the proviso Section 50(2) of the L.A. Act, it must be concluded that, subject to the limitation contained in the proviso, a local authority for whom land is being acquired has a right to participate in the proceedings for acquisition before the Collector as well as the reference Court and adduce evidence for the purpose of determining the amount of obligation on the Collector as well as the reference Court to give a notice to the local authority with regard to the pendency of those proceedings and the date on which the matter of determination of amount of compensation would be taken up. The negotiation of this right raises the question whether the local authority, feeling aggrieved by the determination of the amount of compensation by the Collector or the reference Court, can take recourse to any legal remedy. Before dealing with this question we would take mote of the decisions of this Court having a bearing on the issue.”
7. Their Lordships after taking note of various judgments further held in para 23:
“In case the amount of compensation has been enhanced by the Court and no appeal is filed by the Government the local authority if adversely affected by such enhancement may file an appeal with the leave of the Court. This right of the local authority does not depend on its being impleaded as a party in the proceedings before the reference Court. Even if the local authority is not impleaded as a party before the reference Court it can file an appeal against the award of the reference Court in the High Court after obtaining leave if it is prejudicially affected by the award. In case the Government files an appeal against the enhancement of the award of the local authority is entitled to support the said appeal and get itself impleaded as a party. When the person having an interest in the land files and appeal in the High Court against the award of the reference Court and seeks enhancement of the amount of compensation the local authority should be impleaded as a party in the said appeal and it is entitled to be served the notice of the said appeal so that it can defend the award of the reference Court and oppose enhancement of the amount of compensation before the High Court. The same will be the situation in case of an appeal to this Court from the Section of the High Court.”
8. And their Lordships summed up the conclusions as follows in para 25:
“1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation.
2. The said right carries with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up.
3. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the L.A. Act.
4. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution.
5. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226.
6. The local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend that determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard.
7. In the event of enhancement of the amount of compensation by the reference Court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the Court.
8. In an appeal by the person having an interested in land seeking enhancements of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court.
9. Since a company for whom land is being acquired has the same right as a local authority under Section 50(2), whatever has been said with regard to a local authority would apply to a company too.
10. The matters which stand finally concluded will, however, not be reopened.”
9. From the above quoted judgment law laid down appears to be that the authority at whose instance the land is acquired and the Government, if feels aggrieved by the enhancement of compensation can maintain an appeal with the leave of the Court despite the fact that they were not parties before the reference Court. In the present case, Chief Engineer, Petitioner No. 2 was a party as such can maintain the appeal in his own right without leave. The State however, was not a party but in my view is the most interested party in the matter because it is the State who ultimately has to pay the enhanced amount of compensation and therefore can maintain appeal with the leave of the Court. Especially so because State after all is the principal and Chief Engineer applicant No. 2 its functionary is its agent and what an agent can legally, do can also be done by the principal under the doctrine of agency.
10. Learned counsel for the respondent contends that the State through its Principal Secretary is seeking the leave to appeal which is not permissible in view of Section 79 of C.P.C. as according to him it can be sued though its Chief Secretary.
11. Section 79 simply provides the Government when sues or is used it shall be named ‘State of Jammu & Kashmir’ Rules 1 & 2 of Order XXVII provide as follows:
“1. Suits by or against Government: — In any suit by or against [the Government], the plaint or written statement shall be signed by such persons as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case.
2. Persons authorized to act for Government: — Persons being ex officio or otherwise authorized to act for the Government in respect of any judicial proceedings shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government.”
12. Learned counsel for the respondents has not cited any rule to show that State can sue or be sued only through Chief Secretary and not by the Principal Secretary of the concerned department. Therefore, there is no merit in the objection.
13. In the totality of the circumstances of this case prayer of the petitioners deserves to be allowed. Therefore, the State through Principal Secretary Power Development Department is granted leave to appeal. The petitioner No. 2, Chief Engineer being a party to the proceedings before the reference Court is in his own right also found competent to maintain the appeal. The C.M.P. No. 74/2003 is as such allowed. The Registry shall list the appeal in due course.