Meher Rusi
Dalal Vs. U.O.I. & Ors [2004] Insc 349 (5 May 2004)
S.
N. Variava & H. K. Sema S. N. Variava, J.
These
Appeals are against a Judgment of the Bombay High Court dated 6th July, 1998.
Briefly
stated the facts are as follows:
One Jerbano
Cursetji and Dr. K. J. Cursetji were granted a lease in perpetuity by the
Municipal Authority of Bombay in the year 1932. On 11th January, 1938 the property was taken over by the Defence Department for
war purposes. The Defence Department paid a sum of Rs. 1,903/- per annum and
such payments have been made till 1994.
In
1980 a notice to quit out was given to the Defence Department.
Thereafter
in 1982 a Writ Petition No. 919/1982 was filed for directions that the property
be acquired or the possession be handed back. In that Writ Petition a statement
was made, on the basis of the written instructions received from the Union of
India, that the land would be acquired. On this statement the Writ Petition was
withdrawn.
The
land was still not acquired. Therefore on 8th June, 1994 Jerbano Cursetji filed Writ
Petition No. 1733/1994 for directions that in compliance with the statement
made earlier the land be acquired or the possession be handed back. After this
Writ Petition was filed, on 3rd November, 1994, Jerbano Cursetji died. It must be mentioned that her husband Dr. K. J.
Cursetji had died earlier to the filing of the Writ Petition.
The
Government now invoked urgency clause under Section 17 of the Land Acquisition
Act and a Notification under Section 4 was published on 31st December, 1994. Section 6 Notification was
published on 23rd
February, 1995 and an
Award came to be passed on 30th May, 1995.
In that Award the compensation was fixed at Rs. 9,20,51,175/-. The Appellants,
who were the Legal Representatives of Mrs. Jerbano Cursetji and Dr. K. J. Cursetji,
applied that the amount of compensation be paid to them. Since there was no
response they filed Notice of Motion bearing No. 156/1996 in pending Writ
Petition No. 1733/94 that the amount be paid to them. On 24th June, 1996 the High Court directed the Special
Land Acquisition Officer to deposit the amount in Court.
On 24th July, 1996 the Union of India filed Writ
Petition No. 1603/1996 challenging the Award as excessive. Union of India took
out the Notice of Motion No. 279/96 for extension of time to deposit the
amount. On 30th August,
1996 the Writ Petition
taken out by the Union of India was rejected. However Union of India was
granted time till 1st October, 1996 to deposit the amount.
The
Union of India now files a S.L.P., in this Court, against the Order dated 24th June 1996. On 2nd September, 1996 the S.L.P. was dismissed with the following
observation:
".The
Award of the Collector is an offer made on behalf of the State and, therefore,
under law, the State cannot question the correctness of the award determined by
the Land Acquisition Officer. The State is bound by the same. Under these
circumstances, they cannot impeach the award of the Collector as being
excessive of the prevailing market value as on the date of the notification.
There
is no law applicable to the Petitioners that they are entitled to seek any
reference under Section 18 as regards the rate of compensation determined under
Section 23(1) of the Act. Only in the State of U.P. by a local amendment, such a right to the State to seek
reference under Section 18(3) was conferred upon the Commissioner. No such
similar law is existing under Act 1 of 1874." ".,, it would be open
to them to agitate the remedy in that behalf in an appeal filed against that
order in the Writ Petition or in any appropriate proceedings arising thereunder,
we do not find any illegality in the impugned order.
The
special leave petition is accordingly dismissed." The Union of India again
applied to the High Court for extension of time. The High Court by its Order
dated 1st October, 1996 refused to extend the time.
Union
of India now files an S.L.P. against Order dated 30th August 1996. This S.L.P. also came to be rejected by this Court, but
time to make deposit was extended till 25th October, 1996. On 25th October 1996 Union of India orally applied to this Court for permission
to withdraw from the acquisition proceedings. This was not granted by this
Court.
The
Union of India then filed an application before the Special Land Acquisition
Officer seeking permission to withdraw from acquisition and to set aside the
award. This was not granted. On 4th April, 1997, the Union of India took out Notice of Motion No. 101/97 in
Writ Petition 1733/94 seeking permission of the High Court to withdraw from
acquisition. The High Court by its Order dated 25th July, 1997 held as follows:
".In
our judgment, Respondents No. 1 and 2 cannot be permitted to resile from their
statements earlier made that the property in question will be acquired. As far
as withdrawal from acquisition is concerned, the Award in question has already
been passed and possession is already with Respondents No. 1 and 2. After
passing of the award, nothing further was required to be done in order to
obtain possession. Land has thus vested in the government. Respondents No. 1
and 2, in the circumstances, are not entitled to withdraw from acquisition in
terms of Section 48(1) of the Act." "Hence, Respondents No. 1 and 2
are not, at this belated stage, entitled to withdraw from acquisition. In the
circumstances we find that present notice of motion is devoid of merit and the
same is dismissed with costs." The Union of India again filed a S.L.P.
before this Court against the rejection of the Notice of Motion. This Court inquired
whether Union of India is willing to hand back possession. This Court was
informed that Union of India was not willing to hand back possession. This
Court therefore declined to interfere and directed the Union of India to file
an undertaking affirming that the payment would be made. On 1st September, 1997 the Joint Secretary in the Ministry
of Defence, New Delhi filed an affidavit of undertaking
in the following terms:
"..I,
on behalf of the Government of India undertake to deposit with the Special Land
Acquisition Officer, Maharashtra Housing & Area Development Authority,
Bombay a sum of Rs. 9,20,51,175/- (Rupees nine crore, twenty lacs, fifty one
thousand one hundred and seventy five only) as awarded by the said Land
Acquisition Officer on 30.5.1995 in respect of acquisition of plot No. 53-A, Worli,
Bombay in proceedings No. LAQ/SR-I/94 on or before 21-9-97. The said amount will be paid over to the Claimants after
steps are taken by the SLAO for vesting the property absolutely in Government
of India.
I
respectfully submit that the above said deposit will be without prejudice to
the rights of either party to initiate/take any proceedings arising out of in
respect of or relating to the said land or acquisition thereof in accordance
with law. It is, however, submitted that in view of the above undertaking
contempt of court proceedings No. 5/97 in Bombay High Court on account of
failure to deposit the above said amount is liable to be dropped.
I say
that the statement made above are true to my knowledge." This Court kept
this undertaking on file and disposed of the S.L.P. in the following term:
".
We are not inclined to interfere with the impugned order. The undertaking filed
on behalf of the Petitioners is kept on record. On the prayer of learned ASG
appearing for the Union of India, time to deposit money in High Court is
extended by 21st
September, 1997.
It is
submitted by Mr. Nariman, Learned senior counsel appearing for the Respondents
that in view of the assurance given that the money will be deposited by 21st September, 1997 the respondents will not press the
Contempt Petition. The S.L.P. stands disposed of." The Contempt Petition
mentioned in this Order is a contempt petition which had been filed by the
Appellants before the High Court on 12th December, 1996.
Now
the Union of India files an application before the Land Acquisition Officer for
apportionment of their share under Section 30 of the Land Acquisition Act. The
Land Acquisition Officer rejects this application by his Order dated 26th September, 1997, wherein it is mentioned that no
claim had been made by the Defence Department or the Union of India in the land
acquisition proceedings, even though their representatives were present at the
time of hearing. It is also held that they had given an undertaking to this
Court that they would make the payment and in that undertaking there was no
mention of claim for apportionment.
The
Union of India then filed Writ Petition No. 1929/97 challenging the aforesaid
order of the Special Land Acquisition Officer.
The
Petitioner filed Contempt Petition in this Court on 21st January, 1998 as the Union of India had not permitted payment to be made
to the Petitioner. A notice was issued by this Court in the Contempt Petition
on 20th February, 1998.
On 6th July, 1998 the Bombay High Court allowed the
Writ Petition filed by the Respondents and directed the Special Land
Acquisition Officer to make a reference under Section 30 of the Land
Acquisition Act. The High Court has held
(a) that
it was not disputed that the Respondents were tenants paying yearly rent,
(b)
that under Section 11 of the Land Acquisition Act a duty is cast upon the
Special Land Acquisition Officer to inquire and consider the interest of the
Respondents and to apportion the compensation irrespective of whether they had
appeared or not. It is held that as the Land Acquisition Officer had not
enquired into and considered apportionment of compensation amongst all persons
interested in the land, in spite of the fact, that he had information that the
Respondents were tenants they were entitled to claim reference
(c) that
the Respondents are not entitled to claim a reference under Section 18 of the
Land Acquisition Act and thus the only remedy was to claim a reference under
Section 30 or file a Civil Suit.
(d) that
the application for apportionment is not barred by res-judicata or on
principles analogous to res-judicata. It is this Judgment which has been
impugned in these Appeals.
In
these Appeals, by an interim order dated 30th October, 1998 the Appellants have been permitted
to withdraw 50% of the amount deposited subject to the outcome of the Appeal.
The Contempt Petition taken out by the Petitioners was also directed to be
heard along with these Appeals. Hence the Contempt Petition is also on board
today.
In our
view, the High Court has clearly erred in setting aside the order of the
Special Land Acquisition Officer declining a reference. It is settled law that
in land acquisition proceedings the Government cannot and does not acquire its
own interest. The interest which is acquired in land acquisition proceedings
are interest of 3rd parties. This Court has as far back as in 1955, in the case
of The Collector of Bombay vs. Nusserwanji Rattanji Mistri & Ors. reported
in (1955) 1 SCR 1311, negatived a contention that when land is acquired
valuation is made of all interest thereon including the interest of the
Government. This Court held as follows:
"We
are unable to accept his contention. When the Government acquires lands under
the provisions of the Land Acquisition Act, it must be for a public purpose,
and with a view to put them to that purpose, the Government acquires the sum
total of all private interests subsisting in them. If the Government has itself
an interest in the land, it has only to acquire the other interests outstanding
therein, so that it might be in a position to pass it on absolutely for public
user. In In the Matter of the Land Acquisition Act: The Government of Bombay v.
Esupali Salebhai ([1909] I.L.R. 34 Bom. 618, 636) Batchelor, J.
observed:
"In
other words Government, as it seems to me, are not debarred from acquiring and
paying for the only outstanding interests merely because the Act, which
primarily contemplates all interests as held outside Government, directs that
the entire compensation based upon the market value of the whole land, must be
distributed among the claimants".
There,
the Government claimed ownership of the land on which there stood buildings
belonging to the claimants, and it was held that the Government was bound to
acquire and pay only for the superstructure, as it was already the owner of the
site. Similarly in Deputy Collector, Calicut Division v. Aiyavu Pillay ([1911]
9 I.C. 341), Wallis, J. (as he then was) observed :
"It
is, in my opinion, clear that the Act does not contemplate or provide for the
acquisition of any interest which already belongs to Government in land which
is being acquired under the Act, but only for the acquisition of such interests
in the land as do not already belong to the Government".
With
these observations, we are in entire agreement.
When
Government possesses an interest in land which is the subject of acquisition
under the Act, that interest is itself outside such acquisition, because there
can be no question of Government acquiring what is its own. An investigation
into the nature and value of that interest will no doubt be necessary for
determining the compensation payable for the interest outstanding in the
claimants, but that would not make it the subject of acquisition. The language
of section VIII of Act No. VI of 1857 also supports this construction. Under
that section, the lands vest in the Government "free from all other
estates, rights, titles and interests", which must clearly mean other than
those possessed by the Government. It is on this understanding of the section
that the award, Exhibit P, is framed. The scheme of it is that the interests of
the occupants are ascertained and valued, and the Government is directed to pay
the compensation fixed for them. There is no valuation of the right of the
Government to levy assessment on the lands, and there is no award of
compensation therefor.
Faced
with this situation Mr. Goswami relied upon the Judgment of this Court in the
case of Inder Parshad vs. Union of India reported in (1994) 5 SCC 239. In this
case the Government had given a lease of the land. That land was then acquired.
This Court recognized the principle that the Government is not enjoined to
acquire its own interest in the land. This Court held that however where the
Collector determined the compensation without taking into consideration that
the private party is only entitled to leasehold interest, then the compensation
would have to be apportioned between the Government and the private party. There
can be no dispute with this preposition.
In the
present case it is to be seen that the land belonged to the Municipality of
Bombay. In the Award the Collector has apportioned the compensation between the
Municipality and the Appellants herein.
Therefore,
this authority can be of no assistance to the Respondents who are not claiming
the land as owners. They are now claiming on the basis that they are protected
tenants under the Bombay Rent Act and that as such tenants they are entitled to
share in the compensation. As is being pointed out later no such claim was made
before the Collector and it cannot be made at this stage.
Mr. Goswami
also relied upon the case of Ratan Kumar Tandon vs. State of U.P. reported in (1997) 2 SCC 161. In this case, by virtue
of the Urban Land (Ceiling and Regulation) Act excess land stood vested in
the State. In the Reference under Section 18 the State pointed out that no
compensation could be paid in respect of the excess land as it already stood
vested in the State. This Court held that the claimants would only be entitled
to compensation for the land which remained with them after the application of
the Urban Land (Ceiling and Regulation) Act. This authority is of no
assistance to the Respondents. If anything this authority is against the
Respondents inasmuch as it also recognizes that the Government does not acquire
its own land and that when compensation is being fixed it is only in respect of
the interest of the third party claimants.
Of
course if the Respondents had a right as tenants they would be entitled to
share in the compensation. However such a claim, if any, was in respect of a
pre-existing right and should have been made before the Land Acquisition
Officer in the land acquisition proceedings.
From
the Award it is clear that the Respondents were represented before the Land
Acquisition Officer. They had been given notice. No claim of tenancy had been
made before the Land Acquisition Officer.
The
High Court in its earlier Judgment dated 30th August 1996 has itself observed as follows:
"..admittedly
by the petitioners have not contended before the land acquisition officer that
they were yearly tenants protected under the Bombay Rent Act." The Special
Land Acquisition Officer has also in his decision dated 26th September 1997 pointed out that Respondents were
represented in the acquisition proceedings but had made no such claim. The High
Court has also failed to notice that even the Respondents do not assert that
they had made any such claim in the acquisition proceedings.
The
High Court is thus in error in observing that the Land Acquisition Officer was
aware of such a claim. We are unable to subscribe to the view of the High Court
that it was the duty of the Land Acquisition Officer to enquire into and
ascertain their interest in the land whether or not they were present. The Special Land acquisition Officer may have been aware that they were in
possession. But merely because a party is in possession does not lead to an
inference that the party is in possession under a right. It must be remembered
that the possession had been taken during the war for defence purposes and that
the notice to quit had been given in 1980. Therefore, if any claim to tenancy
was to be made it had to be specifically raised and then only it could have
been determined. If a party is present and makes no claim the Special Land
Acquisition Officer is under no duty to make an enquiry. Once a party is
represented and makes no claim it would be a reasonable inference that it is
claiming no rights. It is clear that the claim of tenancy, now put forth, is an
afterthought. Having failed in all their efforts to frustrate payment, through
the gamut of litigations set out hereinabove, now this attempt.
Even
otherwise, we find that the High Court has clearly erred in not noticing that
it has already been held by this Court that the Respondents are not entitled to
a reference under Section 18 of the Land Acquisition Act. What is the scope of
Sections 18 and 30 has been set out by this Court in the case of G. H. Grant
vs. State reported in (1965) 3 SCR 756. It has been held as follows:
"There
are two provisions ss. 18(1) and 30 which invest the Collector with power to
refer to the Court a dispute as to apportionment of compensation or as to the
persons to whom it is payable. By sub-s. (1) of s. 18 the Collector is enjoined
to refer a dispute as to apportionment, or as to title to receive compensation,
on the application within the time prescribed by sub-s. (2) of that section of
a person interested who has not accepted the award. Section 30 authorises the
Collector to refer to the Court after compensation is settled under s. 11, any
dispute arising as to apportionment of the same or any part thereof or as to
the persons to whom the same or any part thereof is payable. A person shown in
that part of the award which relates to apportionment of compensation, who is
present either personally or through a representative, or on whom a notice is
served under sub-s.
(2) of
s. 12, must, if he does not accept the award, apply to the Collector within the
time prescribed under s. 18(2) to refer the matter to the Court. But a person
who has not appeared in the acquisition proceeding before the Collector may, if
he is not served with notice of the filing, raise a dispute as to apportionment
or as to the persons to whom it is payable, and apply to the Court for a
reference under s. 30, for determination of his right to compensation which may
have existed before the award, or which may have developed upon him since the
award.
Whereas
under s. 18 an application made to the Collector must be made within the period
prescribed by sub-s. (2) cl. (b), there is no such period prescribed under s.
30. Again under s. 18 the collector is bound to make a reference on a petition
filed by a person interested. The Collector is under s. 30 not enjoined to make
a reference : he may relegate the person raising a dispute as to apportionment,
or as to the person to whom compensation is payable, to agitate the dispute in
a suit and pay the compensation in the manner declared by his award." xxx xxx
xxx "..The Collector is not authorised to decide finally the conflicting
rights of the persons interested in the amount of compensation : he is
primarily concerned with the acquisition of the land. In determining the amount
of compensation which may be offered, he has, it is true, to apportion the
amount of compensation between 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 appeared before him. But the scheme of apportionment by the Collector
does not finally determine the rights of the persons interested in the amount
of compensation : the award is only conclusive between the Collector and the
persons interested and not among the persons interested. The Collector has no
power to finally adjudicate upon the title to compensation, that dispute has to
be decided either in a reference under s. 18 or under s. 30 or in a separate
suit. Payment of compensation therefore under s. 31 to the person declared by
the award to be entitled thereto discharges the State of its liability to pay
compensation (subject to any modification by the Court), leaving it open to the
claimant to compensation to agitate his right in a reference under s. 30 or by
a separate suit." This Court has again in the case of Sharda Devi vs.
State of Bihar reported in (2003) 3 SCC 128 very succinctly dealt with the
provisions of Sections 18 and 30 and on an analysis of the provisions and the
various authorities held as follows:
"26.
The scheme of the Act reveals that the remedy of reference under Section 18 is
intended to be available only to a 'person interested'. A person present either
personally or through representative or on whom a notice is served under Section
12(2) is obliged, subject to his specifying the test as to locus, to apply to
the Collector within the time prescribed under Section 18(2) to make a
reference to the Court. The basis of title on which the reference would be
sought for under Section 18 would obviously be a pre-existing title by
reference to the date of the award. So is Section 29, which speaks of 'persons
interested'. Finality to the award spoken of by Section 12(1) of the Act is
between the Collector on one hand and the 'persons interested' on the other
hand and attaches to the issues relating to
(i) the
true area, i.e. measurement of the land,
(ii) the
value of the land, i.e. the quantum of compensation, and
(iii) apportionment
of the compensation among the 'persons interested'.
The
'persons interested' would be bound by the award without regard to the fact
whether they have respectively appeared before the Collector or not. The
finality to the award spoken of by Section 29 is as between the 'persons
interested' inter se and is confined to the issue as to the correctness of the
apportionment. Section 30 is not confined in its operation only to 'persons
interested'. It would, therefore, be available for being invoked by the
'persons interested' if they were neither present nor represented in
proceedings before the Collector, nor were served with notice under Section
12(2) of the Act or when they claim on the basis of a title coming into
existence post award. The definition of 'person interested' speaks of 'an
interest in compensation to be made'. An interest coming into existence post
award gives rise to a claim in compensation which has already been determined.
Such a person can also have recourse to Section 30. In any case, the dispute
for which Section 30 can be invoked shall remain confined only
(i) as
to the apportionment of the amount of compensation or any part thereof, or
(ii) as
to the persons to whom the amount of compensation (already determined) or any
part thereof is payable.
The
State claiming on the basis of a pre-existing right would not be a 'person
interested', as already pointed out hereinabove and on account of its right
being pre- existing, the State, in such a case, would not be entitled to invoke
either Section 18 or Section 30 seeking determination of its alleged
pre-existing right. A right accrued or devolved post award may be determined in
a reference under Section 30 depending on Collector's discretion to show
indulgence, without any bar as to limitation. Alternatively, such a right may
be left open by the Collector to be adjudicated upon in any independent legal
proceedings. This view is just, sound and logical as a title post award could
not have been canvassed upto the date of the award and should also not be left
without remedy by denying access to Section 30. Viewed from this angle, Section
18 and 30 would not overlap and would have fields to operate independent of
each other." xxx xxx xxx "36. To sum up the State is not a 'person
interested' as defined in Section 3(2) of the Act. It is not a party to the
proceedings before the Collector in the sense, which the expression 'parties to
the litigation' carries. The Collector holds the proceedings and makes an award
as a representative of the State Government. Land or an interest in land
pre-owned by State cannot be subject- matter of acquisition by State the
question of deciding the ownership of State or holding of any interest by the
State Government in proceedings before the Collector cannot arise in
proceedings before the Collector (as defined in Section 3(c) of the Act). If it
was a government land there was no question of initiating the proceedings for
acquisition at all. The Government would not acquire the land, which already
vests in it. A dispute as to pre-existing right or interest of the State Government
in the property sought to be acquired is not a dispute capable of being
adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of
the Act. The reference made by the Collector to the Court was wholly without
jurisdiction and the Civil
Court ought to have
refused to entertain the reference and ought to have rejected the same. All the
proceedings under Section 30 of the Act beginning from the reference and
adjudication thereon by the Civil Court
suffer from lack of inherent jurisdiction and are therefore a nullity liable to
be declared so." It is thus clear that persons who have notice of
acquisition proceedings would have to apply for a Reference under Section 18.
To be noted that under Section 18 Reference could be in respect of the
measurement of the land and/or the amount of compensation and/or in respect of
persons to whom it is payable and/or for apportionment of compensation amongst
persons interested. Section 30 merely deals with apportionment of compensation
when the amount of compensation has been settled. Thus, as set out in the above
mentioned cases, Section 18 is to be invoked when a person claiming a
pre-existing right has notice of the acquisition proceedings, whereas Section
30 comes into play only if a person had no notice of the acquisition
proceedings or the rights came into existence after the acquisition
proceedings. It is clear that the person who had notice of the acquisition
proceedings and who, by virtue of Section 50, is debarred from filing a
Reference under Section 18 cannot be allowed to apply for a Reference under
Section 30. In this case, this Court has already held that the Respondents were
not entitled to apply for a Reference under Section 18. This meant that they
were not entitled to seek a Reference not just in respect of the compensation
but also for apportionment of the compensation. Once it has been held that they
had no right to move under Section 18 there was no question of their being
permitted to move under Section 30. To permit a party, who cannot apply under
Section 18, to apply under Section 30 would be to render Section 50 nugatory.
The
High Court has also erred in holding that the claim for apportionment was not
barred by principle of res-judicata or principles analogous thereto. As has
been set out hereinabove the Respondents had filed Writ Petition No. 1603/96
challenging the Award as excessive. One of the grounds for claiming the Award
as excessive was as follows:
"Petitioners
submit that thus while assessing or determine the compensation the Special Land
Acquisition Officer - Respondent No. 4 ought to have considered the share of
the tenants/lessees/documents including the Ministry of Defence on the basis of
hiring and as to that extent the compensation ought to have been reduced."
Thus in that Writ Petition they had already claimed that their share as
tenants/lessees should have been taken into consideration. That Writ Petition
came to be dismissed. The S.L.P. filed against that Writ Petition was withdrawn
by them. To claim apportionment on the ground that they had share as tenant or
lessee is in fact nothing else but an attempt to reduce the compensation. The
prayer asked for now is identical to the prayer made earlier.
Even
otherwise, it is settled law that in every proceeding the whole of the claim
which a party is entitled to make should be made and where a party omits to sue
in respect of any portion of the claim he cannot afterwards sue for the portion
so omitted. Explanation 4 to Section 11 C. P. C. also provides that any matter
which might or ought to have been made a ground of defence or attack in a
former proceeding will be deemed to have been a matter directly and
subsequently in issue in that proceeding. Therefore, clearly the claim now made
was barred on principle of res-judicata or principles analogous thereto.
There
is one other reason why the High Court should not have allowed the Writ
Petition. Under Section 18 if a party wants to claim a Reference it is to be
done within a particular period. The Proviso to Section 18 reads as follows:
"
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 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 Undoubtedly under Section 30 no such time limit has been prescribed.
However,
it is clear that any such application must be made within a reasonable time.
What is the reasonable time will depend upon the facts and circumstances of
each case. In a case like present, the reasonable time would be the time as
allowed under Section 18. This Court has in the case of Gujarat vs. Raghav reported in (1970) 1 SCR
335 considered the provisions of Sections 65 and 211 of the Bombay Land Revenue
Code, 1879. It was noticed that Section 211 did not prescribe a time limit
within which the Commissioner could revise an order under Section 65. It was
however held as follows:
"It
is true that there is no period of limitation prescribed under s. 211, but it
seems to us plain that this power must be exercised in reasonable time and the
length of the reasonable time must be determined by the facts of the case and
the nature of the order which is being revised.
It
seems to us that s. 65 itself indicates the length of the reasonable time
within which the Commissioner must act under s. 211. Under s. 65 of the Code if
the Collector does not inform the applicant of his decision on the application
within a period of three months the permission applied for shall be deemed to
have been granted. This section shows that a period of three months is considered
ample for the Collector to make up his mind and beyond that the legislature
thinks that the matter is so urgent that permission shall be deemed to have
been granted.
Reading
ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional
powers within a few months of the order of the Collector" Even in Sharda Devi's
case (supra) this Court has held that even though no limitation is provided for
making a reference under Section 30 the power had to be exercised within a reasonable
period. This Court has held that what is the reasonable period would depend
upon the facts of each given case. It appears to us that in cases where the
parties have notice of the acquisition proceedings, even presuming, they can
apply for a reference under Section 30, the reasonable time would be the period
prescribed under Section 18. We immediately clarify that where parties do not
have notice of the acquisition proceedings and/or their rights come into
existence subsequent to the acquisition proceedings the starting point of
limitation may be postponed but the reasonable time would be the time set out
in Section 18 from the date of the knowledge or from the date they acquire
rights, whichever is later.
For
all the above reasons, it will have to be held that the impugned Judgment
cannot be sustained and is hereby set aside. The Writ Petition filed by the
Respondents stands dismissed. We affirm the order of the Land Acquisition
Officer dated 26th
September, 1997 and
hold that the Respondents cannot claim a Reference under Section 30 nor claim
apportionment.
In our
view, the Respondents have by adopting multifarious proceedings delayed the
payment of amount for a number of years.
We
therefore direct that the Appellants shall be entitled to withdraw the balance
amount deposited in the Court without any further delay.
The
Appeals stand disposed of. There will be no order as to costs.
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