Raja Saeed Akram Khan, J.--The titled appeal by leave of the Court has been filed against the judgment and decree of the High Court dated 19.5.2015, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The facts in brief involved in the instant appeal, in brief, are that on 6.4.2009, the appellant, herein, filed an application before the Collector Land Acquisition, Mangla Dam Raising Project, Mirpur, to the effect that the House, bearing Code No.3380A, situate at Dhok Badhal, village Kharak, Tehsil Mirpur, was constructed by him but at the time of award, the same was wrongly entered in the name of respondent No.1, Arfan Mehmood. It was also stated in the application that the appellant is serving abroad and while taking undue advantage of his absence, the ownership of the house has wrongly been entered in the name of respondent No.1 and the same may be corrected. The Collector Land Acquisition, vide order dated 5.5.2009, accorded approval to the effect that in the column of ownership of the aforesaid house, the name of respondent No.1 shall be deleted and the name of the applicant, appellant herein, shall be entered. On 17.5.2010, the Collector reviewed the order dated 5.5.2009 and issued an amended award. The appellant, herein, filed a reference before the Reference Judge, Mangla Dam Raising Project, Mirpur, on 14.7.2010, which was dismissed through order dated 23.2.2011. An appeal was filed before the High Court, which has also been dismissed through the impugned judgment dated 19.5.2015, hence this appeal.
3. Raja Fiaz Nawabi, advocate, counsel for the appellant, submitted that the judgment passed by the High Court is based on misinterpretation of law and the facts of the case, which is not maintainable. He further submitted that the learned High Court fell in error while not taking into consideration the provisions of section 12 of the Land Acquisition Act, which provides that when an award is issued, the same cannot be amended later on. He further added that the leaned Collector Land Acquisition is not equipped with any suo motu power to change/amend the award, which is a sheer violation of section 12 of the Land Acquisition Act. He further submitted that the appellant has raised this point in the reference application and the same was also argued before the learned Reference Judge as well as before the High Court but both; the High Court as well as the learned Reference Judge, have not considered and resolved the same in a legal manner. The learned counsel further submitted that the appellant, for proof of the version, has produced oral evidence before the trial Court but the same has not been given any weight.
4. On the other hand, Mr. Abdul Aziz Chaudhary, advocate, counsel for the respondent, submitted that the concurrent findings recorded by the courts below are not open to interference with. He submitted that under section 21 of the Land Acquisition Act, the Collector Land Acquisition can amend a subsequently issued award.
The learned counsel also relied upon the General Clauses Act and submitted that the authority, which passed an order, has got ample powers to cancel the same. The learned counsel submitted that the order passed by the Collector Land Acquisition was valid one. Both the courts below rightly disbelieved the version of the appellant. The judgment of the High Court has been passed after due deliberation. The learned counsel lastly submitted that it is settled principle of law that in the absence of any misreading or non-reading of evidence, the concurrent findings cannot be disturbed.
5. We have heard the learned advocates for the parties and gone through the record of the case made available.
6. The controversy involved in the matter is in respect of a house, acquired for Mangla Dam Raising Project, Mirpur, by the Collector Land Acquisition, bearing Code No.3380A. The claim of the appellant is that his name was incorporated in the original award as an owner while in his absence from the country, the respondent succeeded to get his name entered in the place of appellant. An application was moved by the appellant and the same was allowed. This fact has not been denied by the other side, however, the controversy started when the order dated 5.5.2009 was reviewed/cancelled by the Collector Land Acquisition on 17.5.2010. There is nothing on the record to ascertain as to why the cancellation order was passed. The appellant was also not provided the right of hearing. Moreover, it transpires from the record that the award in the case was announced on 20.2.2010 and the reference was filed on 14.7.2010. The pivotal question of law is that whether, after filing of the award, the Collector Land Acquisition is still vested with the powers to amend the same and issue supplementary award? In this regard, the learned counsel for the respondent has tried to take the shelter of section 21 of the Land Acquisition Act. After going through the referred provision of law, it appears that the same has no nexus with the proposition involved in the case, rather the same deals with the scope of inquiry regarding the consideration of the interest of the persons affected by the objection and restricts the scope of that inquiry in the proceedings on a reference under section 18, which is confined to the extent of (i) the measurement, (ii) the amount of compensation awarded by the Collector, (iii) the person to whom payable, and (iv) the apportionment of the said amount among several persons. This statutory provision has nothing to do with the filing of amended award. Section 12 of the Land Acquisition Act provides that once an award is filed, the same is final and conclusive. The Collector Land Acquisition has no jurisdiction to review the award made by him, as he is not functioning as a court. The finality of the award is not dependent on filing it in the Collector's office in compliance with section 12(2). In case, the claimant is aggrieved, he can ask the collector to refer the matter to the civil Court under section 18 of the Act. Admittedly in the case in hand, on the application of the appellant, the correction was made in the award while deleting the name of the respondent on the application of the appellant and the award was announced. The name of the appellant finds place at serial No.35 of the award. There was no occasion for the Collector Land Acquisition to review the same while issuing the amended one, as the law does not support the act of the Collector. In this regard, reliance can be placed on the case reported as Baru Mal Jain & Ors. v. State of Utter Pardesh & Ors. [AIR 1962 All 61], wherein it has been observed as under:- "4. Under the provisions of Section 8 of the Ace the land which is sought to be acquired has got to be marked out and measured. Thereafter under Section 9 of the Act notices have got to be issued to all the persons interested in receiving compensation for the land which is sought to be acquired. Under the provisions of Section 10 the Collector has been given the power to require any person to make or deliver to him at any time and place a statement containing, so far as may be practicable, the names of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mort-gagee, tenant or otherwise and of the nature of such interest and of the rents and profits, (if any) received or receivable on account thereof for three years next preceding the date of the statement. After the Collector has issued notices under Section 9 and also, if asked for, received the statements and the names as contemplated by Section 10, he has to make an enquiry under Section 11 of the Act. Section 11 of the Act reads as follows: '11. Enquiry and award by Collector.--On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, Sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-
(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." After that is done he is required to file the award under Section 12 of the Act. Section 12 of the Act reads as follows: '12. Award of Collector when to be final,--
(1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land and the apportionment of the compensation among the persons interested,
(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.'
A perusal of Section 11 along with Section 12 of the Act clearly reveals that an award becomes final only after it has been filed in the Collector's office. It may also be noticed that Section 11 does not specifically require the award to be dated. In fact it is not clearly mentioned therein that it should also be signed though the expression "under his hand" occurring in that section may lead to the inference that he has to sign, the award. It cannot be denied that proceedings under the Act for awarding compensation are administrative in their nature. Even if they were judicial (by now it has been held in several decided cases that they are not) there would be no bar to the Land Acquisition Officer tearing out or destroying an award which he had written out and signed.
Such a view was taken by the Bombay High Court in the case of Kooverbai Sorabji v. Asstt. Collector, Surat, 59 Ind Cas 429 : (AIR 1920 Bom 265). The Supreme Court in the case of Surendra Singh v. State of U. P., AIR 1954 SC 194 was called upon to decide as to whether an opinion written out on behalf of a Bench of this Court and signed by one of the Judges constituting the Bench could be validly pronounced after he had died by the other learned Judge who constituted the Bench. On the ground that until the judgment was pronounced it was open to the learned Judge who had written and signed it to change his mind, the Supreme Court held that that document was a mere opinion and could not be treated to be a valid judgment. From this decision it is clear that till that particular act which gives a judgment or order final solemnity is not performed the judgment or order even though, written and signed can be changed.
The requirement of Sections 11 and 12 of the Act is that after an award is made the same has got to be filed in the Collector's office and once that is done it becomes final. In the present case it cannot be said that the Land Acquisition Officer had not given the touch of finality to his award made earlier because not only he wrote it out and signed it but he also issued a notice calling upon the respondent No. 4 to deposit a sum of Rs. 18,000 and odd and further sent information to the Land Reforms Commissioner, U. P. as required by Section 12(2) of the Act and Paras 430 and 497 of the Manual of Orders of the Government of U. P. in the Revenue Department. In other words he not only prepared the award but also acted upon it with the result that the award was finally made as contemplated by Section 11 of the Act. It is true that an officer can after writing out and signing an award change his mind and destroy it but this can be done only up to a particular stage i.e., before it is filed. In the present case he not only prepared, signed and filed the award but also took further steps to implement it. To my mind in these circumstances, he has no power left to change the award. If that view were not to be taken disputes between parties could never be finally settled.
There is a difference between the writing out and signing of an award and making an award. Making of an award presupposes a final determination to decide the dispute in a particular manner. Making an award may include the process of writing out and signing the award but so long as the mind has not been finally determined and the process of consideration is still going on the signatures must be held to be provisional and it cannot be said that the award has been made. On the facts of the present case I am satisfied that the earlier award had been made under Section 11, It is true that in connection with Section 18 of the Act there is some conflict of opinion as to when an award would be deemed to have been made. We are however not concerned with Section 18 of the Act in the present case."
It has also been observed in the supra report, as under:- "I have already mentioned above that not only he wrote out and signed his first award and further sent notices to the respondent No. 4 and the Land Reforms Commissioner but also replied back to the Land Reforms Commissioner that his award was a correct one and he had no reason to change it. It is only later on when pressure was brought upon him that he changed his mind. Considering the circumstances of this case I have no hesitation in rejecting the suggestion that the subsequent award was made by the Land Acquisition Officer exercising his own judgment without having been dictated to by the Land Reforms Commissioner. It also appears that the Land Acquisition Officer received some fresh material on the record at the time of preparing the second award without giving the petitioners an opportunity to meet that material. Such a procedure is clearly against the principles of natural justice (see D. C. Mills Ltd. v. Commissioner of Income-tax, West Bengal, (S)
AIR 1955 SC 65 and Omar Salay Mohd. v. Commr. of Income-tax, Madras, AIR 1959 SC 1238). The second award is bad on this ground also."
In view of the above, the judgments recorded by both the courts below are not in accordance with law and have been passed against the relevant statutory provisions. As the legal proposition involved in the matter was not attended properly by the courts below, therefore, we are constrained to accept this appeal while setting aside the judgments impugned before this Court. No order as to the costs.