The
Officer on Special Duty (Land Acquisition) & Anr Vs. Shah Manilal Chandulal
[1996] INSC 227 (9
February 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (2) 278 1996 SCALE (2)153
ACT:
HEAD NOTE:
Leave
granted.
A
short but an important question of law arises for decision in these appeals. By
a notification under Section 4(1) of the Land Acquisition Act, 1894 [1 of 1894]
[for short, the "Act"] published in the State Gazette on February 20, 1984, Government acquired the land for
public purpose.
The
Land Acquisition Officer [for short, the "LAO"] made his award under
Section 11 on February
28, 1989. The
respondents were present at the time when the award was announced. On June 10, 1989 they applied for reference under
Section 18.
After
giving an opportunity of hearing, by order dated January 9, 1990, the LAO
rejected the application for reference on the ground that it was barred by
limitation, i.e., beyond six weeks from the date of the award. In writ
petitions the High Court of Gujarat in the impugned order dated March 13, 1992 in Special Civil Application
No.2296/90 and batch held that Section 5 of the Limitation Act applies to the
proceedings before the Collector and that, therefore, reasons given to condone
the delay for filing the application were valid. The reasons were that they had
applied for certified copy of the award and after its supply and in
consultation with the counsel, the reference application came to be filed.
Accordingly, High Court condoned the delay and directed the LAO to make the
reference. These appeals thus are filed against the said order.
Section
18(1) envisages that any interested person who has not accepted the award may,
by application in writing to the Collector, require him to refer the dispute
raised in the application for the determination of the court. Under sub-Section
[2], the grounds on which objection to the award is taken have to be stated in
the application. However, under the proviso to sub-Section (2) 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 the 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. It would thus be clear
that if the interested person was present at the time the Collector made the
award, he should make the application within six weeks from the date of the
award of the Collector. In other cases, it should be made within six weeks
after the receipt of the notice from the Collector/LAO under Section 12(2) or
within six months from the date of the Collector's award, whichever period
shall first expire. Admittedly, the application for reference is beyond six
weeks under clause (a) of proviso to subsection (2) of Section 18.
The
question, therefore, is: whether Section 5 of the Limitation Act would apply?
The High Court relied upon sub- section (3) of Section 18 which was made by way
of a local amendment, i.e., Land Acquisition (Maharashtra Extension and
Amendment) Act XXXVIII of 1964 which reads thus:
"Any
order made by the Collector on an application under this section shall be
subject to revision by the High Court, as if the Collector were a Court
subordinate to the High Court within the meaning of Section 115 of the Code of
Civil Procedure, 1908." It would appear that the High Court of Gujarat has
taken consistent vies that, by operation of sub-section (3), as the Collector
was designated to be a court subordinate to the High Court under Section 115,
Civil Procedure Code [for short, "CPC"], Section 5 of the Limitation
Act [26 of 1963] stands attracted. Though sub- section (3) of Section 18, by
virtue of local amendments, treated the Collector as court for a limited
purpose of exercising revisional jurisdiction under Section 115, CPC to correct
errors of orders passed by the Collector under Section 18, he cannot be considered
to be a court for the purpose of Section 5 of the Limitation Act. Section 5 of
the Limitation Act stands attracted only when LAO acts as a court.
The
question is: whether the view of the High Court is correct in law? Section 3 of
the Limitation Act casts a duty on the court to apply the prescribed limitation
and irrespective of the fact that deference of limitation was not taken, the
court is enjoined to ensure that no suit etc.
is
laid beyond the prescribed limitation unless the exceptions for extension of
time are found in Section 4 to 24 [both inclusive] and Section 5 is one of them
and extends the prescribed time occupied by those sections. Section 5 of the
Limitation Act extends the prescribed period of limitation in certain cases on
showing sufficient cause which would be a question of fact in each case.
Any
appeal or application other than an application under any of the provisions of
Order 21 of the CPC may be admitted after the prescribed period, if the
applicant or appellant satisfies the court that he had sufficient cause for not
instituting the suit or preferring the appeal or making the application within
such period. Explanation is not necessary for the purpose of this case. Hence
omitted.
If the
suit is barred by limitation prescribed by the Limitation Act, an application
for extension of the prescribed time may be made to the court and the applicant
may satisfy the court that he had sufficient cause for not preferring the
appeal or making the application within such period The question, therefore,
is: whether the Collector is a court for the purpose of Section 18(1) of the
Act? The right to make application in writing is provided under Section 18(1).
The proviso to subsection (2) prescribes the limitation within which the said
right would be exercised by the claimant or dissatisfied owner. In Mohd. Hasnuddin
v. State of Maharashtra [(1979) 2 SCC 572], this Court was called upon to
decide in a reference under Section 18 made by the Collector to the court
beyond the period of limitation, whether the court can go behind the reference
and determine the compensation, though the application for reference under
Section 18 was barred by limitation? This Court had held that the Collector is
required under Section 18 to make a reference on the fulfillment of certain
conditions, namely,
(i) written
application by interested person who has not accepted the award;
(ii) nature
of the objections taken for not accepting the award; and
(iii) time
within which the application shall be made.
In para
22 after elaborating those conditions as conditions precedent to be fulfilled,
it held that the power to make a reference under Section 18 is circumscribed by
the conditions laid down therein and one such condition is a condition
regarding limitation to be found in he proviso. The Collector acts as a
statutory authority. If the application is not made within time, the Collector
will not have the power to make reference. In order to determine the limitation
on his own power, the Collector will have to decide whether the application
presented by the claimant is or is not within time and specify the conditions
laid down under Section 18.
Even
if the reference is wrongly made by the Collector, the court will have to
determine the validity of the reference because the very jurisdiction of the
court to hear a reference depends upon a proper reference being made under
Section 18. If the reference is not proper there is no jurisdiction in the
court to hear the reference. It was, therefore, held that it is the duty of the
court to see that the statutory conditions laid down in Section 18 including
the one relating to limitation, have been complied with and the application is
not time-barred. It is not debarred from satisfying itself that the reference
which it is called upon to hear is a valid reference. It has to proceed to
determine compensation and if it is time-barred, it is not called upon to hear
the same. It is only a valid reference which gives jurisdiction to the court.
Therefore, the court has to ask itself the question whether it has jurisdiction
to entertain the reference. If the reference is beyond the prescribed period by
the proviso to sub-section (2) of Section 18 of the Act and if it finds that it
was not so made, the court would decline to answer the reference. Accordingly,
it was held that since the reference was made beyond the limitation, the court
was justified in refusing to answer the reference.
It
would thus be clear that one of the conditions precedent to make a valid
reference to the court is that the application under Section 18(1) shall be in
writing and made within six weeks from the date of the award when the applicant
was present either in person or through counsel, at the time of making of the
award by the Collector under clause (a) of proviso to sub-section (2). The
Collector, when he makes the reference, acts as a statutory authority.
In
State of Punjab & Anr.v.Satinder Bir Singh [(1995) 3 SCC 330], a Bench of
two Judges [to which one of us, K.Ramaswamy, J., was a member] was to consider
whether the application for reference under Section 18 was barred by limitation
and the direction issued by the court for making reference was valid in law.
The Collector made the award on August 1, 1970. The notice under Section 12(2) was received by the respondent
on September 22, 1970 and he received the compensation
under protest on September
29, 1970. The
application for reference under Section 18 was made on January 21, 1971. The Collector rejected the
application as being barred by limitation. The High Court in revision under
Section 115, CPC, similar to Gujarat Amendment, allowed the revision holding
that since the notice did not contain all the details of the award, notice
under Section 12(2) was not valid. Therefore, there was no limitation This
Court reversing the view had held in paragraph 7 that the form of notice was
not material since the respondent appeared and received the notice on September
22. 1970 and received the compensation under protest on September 29, 1970. The limitation began to run from
the date of the receipt of the notice and by operation of clause (b) of the
proviso to sub- Section (2) of Section 18 since the application was not made
within six weeks from the date of the receipt of the notice, the application
was barred by limitation prescribed in Section 18(2). It does not depend on the
ministerial act of communication of notice in any particular form which the Act
or Rules have not prescribed. The limitation began to operate from the moment
the notice under Section 12(2) was received as is envisaged by t Section 18(2).
Accordingly the order of the High Court was set aside.
The
question emerges: whether the LAO/Collector acts as a court? Section 3(d)
defines "Court" to mean the principal Civil Court of original
jurisdiction or a principal Judicial officer within any special local limits
appointed thereunder to perform the functions of the court under the Act.
"Collector"
has been defined in Clause 3 (c) to mean the Collector of district and includes
a Deputy Commissioner etc. appointed by the appropriate government to perform
the functions of the Collector under the Act. He is variously called the
Collector/LA0. It would thus be clear that the Act made a distinction between
the Collector and the court.
The
Collector/LA0 performs the statutory functions under the Act including the one
making the award under Section 11 and referring a t written application made
under Section 18(1) of the Act to the court and complies with Sections 19 and
20 of the Act. The dichotomy of the Collector and the court cannot be lost
sight of.
In Nityanada,
M. Joshi & Ors, v- Life Insurance Corpn. of India & Ors. [(1969) 2 SCC
199], a Bench of three Judges of this Court was to consider whether the
industrial Tribunal is a court within the meaning of the Industrial Disputes
Act when it entertains application under Section 33C (1) and (2) of the
Industrial Disputes Act, 1947. It was held that Article 137 of the Schedule to
the Limitation Act applies to an application referable under the CPC and it
contemplates an application to the court as provided in the Third Schedule to
the Limitation Act. Section 4 of the Limitation Act also refers to the closure
of the court.
Section
5 of the Limitation Act applies only to a court which is to entertain an
application or an appeal after the prescribed period has expired on its
satisfying that the applicant had sufficient cause for not preferring the
appeal or making application. The Labour Court was held not a court within the Limitation Act when it
exercises the power under Section 33C (1) and (2) of the Industrial Disputes
Act, 1947.
In Smt.
Sushila Devi v. Ramanandan Prasad & Ors. [(1976) 1 SCC 361], the question
arose whether the Collector to whom application under Section 3 of the Kosi
Area (Restoration of Lands to Raiyats) Act 30 or 1951 is made, is a court under
Section 5 of the Limitation Act? The said Act by operation of Section 15 of
that Act makes certain provisions of the CPC applicable when it conducts
certain proceedings before it. This Court had held that Collector is not court
where he conducts the proceedings under the Act.
Therefore,
Section 5 of the Limitation Act does not apply.
In Mohd.
Ashfaq v. State Transport Appellate Tribunal. U.P. & Ors. [AIR 1976 SC
2161], under Section 58 of the Motor Vehicles Act [4 of 1939] and under
sub-section (2) proviso and sub-section (3), application for renewal of the
permit would be made and power is given to the R.T.A. to condone the delay if
the application is made after the expiry but within 15 days of the period. The
question arose: whether Section 5 of the Limitation Act would apply by
operation of subsection (2) of Section 29 of the Limitation Act? This Court had
held that since the limitation of 15 days was prescribed, if the application is
not made within that limitation, the R.T.A. is not a court under Section 5 and
it has no power to condone the delay.
In Kaushalya
Rani v. Gopal Singh [AIR 1964 SC 260], the question arose whether Section
417(4) of Criminal Procedure Code is a special law within the meaning of
Section 29(2) of the Limitation Act and whether Section 5 of the Limitation Act
does not apply? It was held that Section 417(4) is a special law and Section 5
of the Limitation Act does not apply in view of the specific limitation
provided under that Act for filing of an appeal by a private complainant. In Major(Retd.)
Inder Singh Rekhi v. Delhi Development Authority [(1988) 2 SCC 388], Article
137] of the Schedule to the Limitation Act, 1963 would apply to an application
filed in a civil Court. When application under Section 20 of the Arbitration
was filed. the question arose as to when the limitation began to run. This
Court had held that the cause of action arose on February 28, 1983 when the final bill was not prepared and the application
under Section 20 was filed within three years from that date. It is seen that
in that case the application under Section 20 of the Arbitration Act is to an
established civil Court. Therefore the ratio therein has no application to the
facts presently before us.
In
P.V. Gadgil & Ors. v. P, Y. Deshpande & Anr. [AIR 1983 Bombay 342] the question similar to the
one presently under consideration had directly arisen. Section 5 of the Limitation
Act was applied for condition of the delay in seeking or make a reference under
Section 18. It was contended that by operation of sub-section (3) as also
applicable to States of Maharashtra and Gujarat, the Collector is a court which is amenable to revisional jurisdiction
under Section , CPC and that, therefore, Section 5 of the Limitation Act would apply.
The Division Bench negatived the contention and held that the Collector is not
a court under CPC attracting the provisions of the Limitation Act. The contra
view taken by that court was held to be not a good law and accordingly the same
was overruled. The same question had arisen in Kerala where there is no
specific local provision like Section 18(3), locally amended by Maharashtra and Gujarat.
Contention
was raised that by operation of sub-section (2) of Section 29 of the Limitation
Act, Section 5 stands attracted since there is no express exclusion of the
limitation under the Act. Therefore, the delay was condonable. The Division
Bench negatived the contention and held that the Collector is not a court under
Section 5 of the Limitation Act. Sub-section (2) of Section 29 did not apply.
Same is the view of the A.P. High Court in Spl. Dy. Collector Land Acquisition Anantapur
v. K. Kodandaramacharlu [AIR 1965 A.P. 25].
In Jokkim
Fernandez v. Amina Kunhi Umma [1973 Kerala Law Times 138], a Full Bench of that
Court per majority had held that sub-section (2) of Section 29 and Section 5 of
the Limitation Act do not apply to the proceedings under the Kerala Building
[Lease and Rent Control) Act and that therefore, the Tribunal is not court
under Section 5 of the Limitation Act. In Commissioner of Agricultural
Income-tax v. T.R.I. [1981 K.L.T. 398], the Court was concerned with the
question whether the Appellate Tribunal under the Agricultural Income-tax Act
is a court under Section 5 read with Section 29(2) of the Limitation Act in
respect of an application for reference. The Full Bench had held that the
appellate authority is not a court under Section 5. The delay therefore, could
not be condoned.
It is
to remember that the Land Acquisition [Amendment] Act [68 of 1984] was enacted
prescribing the limitation to exercise the power under Sections 4, 6 and 11 and
also excluded the time occupied due to stay granted by the courts. Taking
cognizance of the limitation prescribed in proviso to sub-Section (2) of Section
18, the provisions of the Limitation Act were not expressly extended. Though
Section 29(2) of the Limitation Act is available, and the limitation in proviso
to sub-section (2) of Section 18 may be treated to be special law, in the
absence of such an application by Land Acquisition [Amendment] Act [68 of
1984], the Act specifically maintains distinction between the Collector and the
court and the Collector/LAO performs only statutory duties under the Act,
including one while making reference under Section 18. It is difficult to
construe that the Collector/LAO while making reference under Section 18. It is
difficult to construe that the Collector/LAO while making reference under
Section 18, as statutory authority still acts as a court for the purpose of
Section 5 of the Limitation Act.
Though
hard it may be, in view of the specific limitation provided under proviso to
Section 18(2) of the Act, we are of the considered view that sub-section (2) of
Section 29 cannot be applied to the proviso to sub-section (2) of Section 18.
The Collector/LAO, therefore, is not a court when he acts as a statutory
authority under Section 18(1) Therefore, Section 5 of the Limitation Act cannot
be applied for extension of the period to limitation prescribed under proviso
to sub-section (2) of Section 18. The High Court, therefore, was not right in
its finding that the Collector is a court under Section 5 of the Limitation
Act.
Accordingly,
we hold that the applications are barred by limitation and Collector has no
power to extend time for making an application under Section 18(1) for
reference to the court.
The
appeals are accordingly allowed. The orders of the High Court are set aside. The
application under Section 18(1) stands rejected but, in the circumstances,
without cost.
Back
Pages: 1 2