A.P. Ravani, J.
1. Rule. Mr. M.H. Rathod waives service of Rule on behalf of respondents. In the facts of the case, at the request and with the consent of the learned Advocates appearing for the parties, the petition is ordered to be heard today. Short question is - Does the provisions of Section 18 of the Land Acquisition Act, 1894 require that the application requesting the Collector to make reference may be signed by the 'person interested' himself, and if it is signed by his duly authorised Advocate/agent, would it not be maintainable?
2. The petitioner is an agriculturist. He owns land in village Alang, Taluka Talaja, District Bhavnagar. His land admeasuring 2 Hecters 84 Aries and 29 Sq. Meters was sought to be acquired at the instance of Gujarat Industrial Development Corporation for establishing industrial estate at village Alang. After the publication of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), the land acquisition officer followed the necessary procedure. Ultimately a common award under Section 11(1) of the Act was passed on September 12, 1990. As disclosed from the record of the petition, the petitioner was awarded an amount of Rs. 4,70,653/- (Rupees four lakhs seventy thousand six hundred and fifty-three only).
3. The petitioner has accepted the said amount of compensation under protest on February 13, 1992. Within the prescribed time limit, the petitioner submitted an application under Section 18 of the Act under the signature of his Advocate requesting the Collector to make reference to the District Court. The Collector issued show cause notice calling upon the petitioner to show cause as to why the application should not be rejected on the ground that the application was not signed by the person interested, i.e., the petitioner himself and mat as no undertaking was filed in the prescribed form for payment of Court-fees. The petitioner replied to the same. It is an admitted position mat as far as the filing of undertaking was concerned, the said requirement was fulfilled.
4. The Collector by his order dated July 30, 1992/October 1, 1992 rejected the application solely on the ground mat it was not signed by the petitioner himself but it was signed by his Advocate for and on behalf of the petitioner. The petitioner has challenged the legality and validity of this order by filing this petition.
5. Section 18 of the Act provides for making reference to the Court. Section 18 reads as follows:
18. Reference to Court:- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court wearer his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made-
(a) if the person making it was present or represented before the collector at the time when he made his award, within six weeks from date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 Sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire.
The aforesaid provisions require that any person interested who has not accepted the award may apply to the collector inquiring him that the matter be referred by him for determination of the Court, the question pertaining to (i) the measurement of the lend, (ii) the amount of the compensation, (iii) the person to whom it is payable or (iv) the apportionment of the compensation among the persons interested. The section requires that the application should be by any person interested and such person should not have accepted the award, meaning thereby he may have received the compensation but should not have acquiesced in it and might have received the amount of compensation under protest. The application should be in writing and should be addressed to the Collector.
6. In the instant case, there is no dispute with regard to the fact that the petitioner has not accepted the award, that is to say, he has not acquiesced in it and he has received the compensation under protest. The application is in writing and it is addressed to the Collector. There is proper request also in the application requesting the Collector to make reference to the Court. However, it is signed by the Advocate of the petitioner and it has not been signed by the petitioner himself, that is to say, it has not been signed by the person interested himself. It is not the case of respondent No. 2 that the Advocate who signed the application was not duly authorised to sign the application. It is not even the contention that the Advocate who signed the application for and on behalf of the petitioner was not a properly constituted agent of the petitioner. The contention of respondent is that the provisions of Section 18 of the Act require that the application should be signed by person interested himself. Interpreting the phrase 'any person interested' and another phrase 'by written application to the Collector' occurring in Section 18, it is contended that the application should be signed by the person interested himself.
7. This contention may be examined. The aforesaid contention cannot be accepted for the simple reason that there is a common law rule that whatever a person has power to do himself he may do by means of an agent. There are two exceptions to this general rule that a person may do by means of an agent whatever he has power to do himself. These exceptions are (i) where the transaction is required by statute to be evidenced by the signature of the principal himself and (ii) where the competency to do the act arises by virtue of the holding of some public office or by virtue of some power, authority, or duty of a personal nature and requiring skill or discretion for its exercise, or where a statute imposes on a person a duty he is not free to delegate. In the case of Commissioner of Agricultural Income-Tex, West Bengal v. Keshab Chandra Mandal reported in : [1950]18ITR569(SC) the question arose as to whether in the facts and circumstances of the case the declaration in the form of return signed by the illiterate assessee by the pen of his son should be treated as properly signed and valid return. The High Court had opined that it should be treated as properly signed and a valid return. However, the Supreme Court held that in view of the provisions of Bengal Agricultural Income-Tax Act, 1944, it was necessary that the return should be signed by the person himself and the intention of the Legislature was not to permit the signature by an agent. Therefore, it was held that the Bengal Agricultural Income-Tax Act, 1944 and the rules framed thereunder excluded the common law rule in the matter of signature of the assessee, appellant or applicant on the return, appeal or application. In the course of the judgment, the Supreme Court inter alia observed as follows:
There is no doubt that the true rule as laid down in judicial decisions and indeed as recognised by the High Court in the case before us is that unless a particular statute expressly or by necessary implication or intencment excludes the common law rule, the latter must prevail.
Thus common law rule indicated hereinabove must prevail unless the same has been excluded expressly or by necessary implication or intendment.
8. Similar question arose in the case of Bhawani Shanker v. State reported in : [1968]68ITR873(All) . In that case, the Agricultural Income-Tax Revision Board refused to entertain the application en the ground that it was not signed by the minor assessee or by his guardien, but it was signed by Mukhtaram appointed by the guardian. A Division Bench of the Allahabad High Court held that the Board was rot justified in refusing to entertain the application and has inter alia observed as follows:
It is well settled that unless there is a specific provision of law, requiring the signatures and verification of the assessee himself the common law rule qui facit per ahum facit per se will have to be followed. In other words, what a man can do himself can equally well be done by his duly authorised agent.
Analysing the provisions of the to. P. Agricultural Income-Tax Act, 1948, the Allahabad High Court held that there was no provision in the Act or the Rules framed thereunder requiring that the revision application should be signed by the assessee himself and that it could not be signed by his agent and thereby excluding the common law rule indicated hereinabove.
9. In the instant case also, therefore, one is required to examine whether the provisions of the Act and the Rules? framed thereunder exclude the applicability of the common law rule referred to hereinabove. Section 5A of the Act provides for hearing of objections. Section 5A(2) of the Act inter alia provides for affording an opportunity of being heard by the Collector 'in person or by any person authorised by him in this behalf or by pleader'. Section 9 provides for notice to persons interested informing them that the Government intends to take possession of the land and that the claims to compensation for all interests in such land may be made to the Collector. Section 9(2) inter alia provides that person interested may appear personally or by agent before the Collector. Section 12(2) also provides that the Collector may give immediate notice of his award to such of the persons interested as are not present personally or by their representaives when the award is made. Thus It shows that the person interested could remain present by their representative also. Section 11 of the Act provides for inquiry into the value of the land and into the interests, claims and objections of the claimants and for the making of the award by the Collector under his hand. As stated hereinabove, Section 12(2) requires the Collector to give immediate notice of his award to each of the persons interested as are not present personally or by their representatives when the award is made. Thus it is evident that at all stages of the enquiry by the Collector and also at the time of making of the award, the claimant is entitled to appear personally or by his agent. There is nothing in the Act to indicate that the Legislature required the personal signature of the claimants on the statement and application filed before the Collector. Section 18(i) of the Act merely provides that the claimant may, by written application to the Collector require that the matter be referred by the Collector. There is nothing to show in the Act that the claimant cannot do through his duly authorised agent what he could do himself. What is necessary is that the claimant must require the Collector by written application that the matter be referred to the Court. Section 18 of the Act does not insist that the written application must necessarily be signed by the claimant. The requirement of written application does not necessarily imply that the application must be signed by the applicant himself.
10. In view of the aforesaid position of the provisions of the Act and the principle laid down by the Supreme Court in the case of Commissioner of Agricultural Income-Tax (supra), the conclusion is inevitable that the application under Section 18(1) of the Act requiring the Collector to make reference to the Court could be signed by duly authorised agent of the claimant. It is not necessary that such application should be signed by the claimant himseif. Nothing is pointed out from the Act or from the Rules framed thereunder to show that case is covered by any of the exceptions to the general rule that a person may do by means of an agent whatever he has power to do himself.
10.1 Similar question arose before a Division Bench of the Calcutta High Court in the case of Rishikesh Mitter v. State of West Bengal reported in : AIR1964Cal277 . In that case references were made by the Collector on the written applications signed on behalf of the petitioners by their respective pleaders. In each of the cases, vakalatnama of the pleaders signed by and on behalf of the petitioner concerned was filed before the Collector before the applications under Section 18 of the Act was submitted. The Collector did make reference. But since the applications were not signed by the petitioners concerned and they were signed by the pleader on behalf of the petitioners, the Special Land Acquisition Judge rejected the references made by the Collector holding that the references were incompetent. The matters were carried before the High Court of Calcutta. A Division Bench of the Calcutta High Court referred to the common law rule indicated hereinabove and also referred to the decision of the Supreme Court in the case of Commissioner of Agricultural Income-Tax (supra) and after analysing the provisions of the Act came to the conclusion that there was nothing in the Act which require that the application under Section 18(1) of the Act should be signed by the claimant himself and that such application could not be signed by his duly authorised agent. We are in respectful agreement with the view taken by the Division Bench of the Calcutta High Court.
11. In view of the aforesaid position, the impugned order dated 30-' 7-1992/1-10-1992 produced at Annexure 'D' to the petition is required to be quashed and set aside and the same is hereby quashed and set aside. Respondent No. 2 is directed to treat the application of the petitioner as in order and maintainable under Section 18 of the Act. Respondent No. 2 is further directed to proceed further and take further action in accordance with law. Rule made absolute accordingly with no order as to costs.