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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.