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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.