Full Judgment Text
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PETITIONER:
THE OFFICER ON SPECIAL DUTY(LAND ACQUISITION) & ANR.
Vs.
RESPONDENT:
SHAH MANILAL CHANDULAL ETC.
DATE OF JUDGMENT: 09/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (2) 278 1996 SCALE (2)153
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
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
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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
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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
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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
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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
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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.