Dhani Ram vs State Of U.P.
2016 Latest Caselaw 2068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                                     Reserved
 
Case :- FIRST APPEAL No. - 439 of 1996                           Appellant :- Dhani Ram                                                  Respondent :- State Of U.P.
 
Counsel for Appellant :- G. Saran,A.K. Singh,A.K. Srivastava,Govind Krishna,P.K. Misra,R.P.Singh,S.K. Misra,S.K. Singh,Suresh Chandra Varma
 
Counsel for Respondent :- S.C.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard Sri Suresh Chandra Varma assisted by Sri Rajesh Pratap Singh, learned counsel for the appellant and Smt. Raj Laxmi Sinha, learned Standing Counsel.

This appeal under Section 54 of the Land Acquisition Act read with Section 96 C.P.C is filed against the judgment and order dated 31.1.1994 passed by IInd Additional District Judge, Azamgarh whereby the reference made by the Special Land Acquisition Officer under Section 18 of the Land Acquisition Act was rejected on the ground of delay.

Brief facts of the case are that the area of 3 links in plot no. 489 and 20 links in plot no. 491, situated in Mohalla Sarfuddinpur, City Azamgarh had been acquired for the scheme namely "Nini Industrial Estate" for building purposes under the authorities of the Industries Department. These land belonged to deceased Antoo and Tapsi son of Gopi, resident of Mauja Sarfuddinpur, Pargana Nizamabad, Tehsil Sadar, District Azamgarh. The claimants are sons of Antoo and Tapsi. An award was made by the S.L.A.O. (Azamgarh) on 20.9.1969. The original tenure holders (Antoo and Tapsi) did not accept the award. The possession of the acquired land was taken by the Industries Department (Azamgarh) on 29.1.1971. On the memo of possession, there is an endorsement of Tapsi under which he appended his thumb impression stating that the possession had been delivered over the land by him to the authorities.

An Original Suit No. 60 of 1971 was filed on 1.2.1971 by the original tenure holders with the relief of permanent injunction restraining the authorities not to interfere in their possession over a house, map of which was given at the foot of the plaint.

The plea taken therein was that the land over which the house in question exist had not been acquired under the notifications under the Land Acquisition Act.

Said suit was dismissed as withdrawn on the application moved by the plaintiff with the liberty to move another suit. Another suit no. 430 of 1971 was filed on 7.10.1971 which was contested by the State authorities. This suit was earlier decided by the judgment and order dated 14.5.1980. On appeal, the matter was remanded back and finally a judgment and decree dated 17.5.1985 was passed granting permanent injunction in favour of the plaintiffs restraining the defendants from seeking possession over the disputed house (shown in the plaint map) and further not to interfere in the peaceful possession of the plaintiffs over the said house.

The appeal namely Civil Appeal No. 573 of 1985 filed by the State Authorities was dismissed for want of prosecution on 11.12.1990 from the Court of Civil Judge (Azamgarh). After dismissal of the said appeal, application for making reference under Section 18 of the Land Acquisition was moved on 7.10.1991. In the said reference application, prayer was made to condone the delay under Sections 5 and 14 of the Limitation Act on the ground that the predecessor-in-interest of the claimants/applicants were fighting litigations before the Civil Court under bonafide belief that their land had not been acquired taking recourse to the proceedings under the Land Acquisition Act. They did not receive proper advice to make an application for reference before the S.L.A.O. Azamgarh within the period of limitation. The award was declared on 20.9.1969 without any notice to these land holders. On 18.1.1971 when notice for delivery of possession was received by the tenure holders, they filed the Original Suit No. 430 of 1971 for permanent injunction. The suit was decreed by competent civil court and appeal challenging the decree has been dismissed. The applicants waited for some time and after confirmation of the fact that the State Government did not file any second appeal against the dismissal order dated 11.12.1990, they moved the application before S.L.A.O for making reference.

The Special Land Acquisition Officer, Azamgarh made the reference subject to the question of limitation with the prayer that the said question be examined by the Civil Court and the reference may be entered into only after determining the question of limitation. The reference court framed the issue on the question of limitation as a preliminary issue and decided against the applicant refusing to enter into the reference. Consequently the present appeal has been filed.

Before dealing with the facts of the case in hand, it would be apt to go through the law of making reference and on the question on the limitation dealt by the reference court.

The questions which arise for consideration before this Court are:-

(i) Whether the provisions of the Limitation Act are applicable in proceedings before the Collector under Section 18 of the Land Acquisition Act and the Collector can condone the delay under Section 5 of the Limitation Act in filing an application seeking reference if "sufficient cause" is shown?

(ii) What would be the extent of jurisdiction of the reference court to enquire into the competency or otherwise of the reference made by the Collector?

(iii) What would be the date of award in the fact of the present case?

(iv) Whether the reference court has erred in rejecting the reference refusing to condone the delay.

(v) Whether the appeal lies against the order of rejection of application for reference on the ground that it was not filed within the prescribed period.

Before dealing with the first question, it would be apt to go through the provisions of Land Acquisition Act which are relevant for considering the questions formulated. Section 11 of the Act provides for an enquiry into the objections and making an award by the Collector. Sub-section (2) of Section 12 requires that the Collector shall give intimation of his award to such of the persons interested as were not present personally or by their representatives when the award was made.

Section 18 providing for Reference to Court is extracted as under:-

"Section 18. Reference to court.-(I) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable. or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

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 award, whichever period shall first expire."

The question whether the Limitation Act applies to the proceeding for making reference under Section 18 of the Act was examined by the Apex Court in Bhagwan Das and others versus State of Uttar Pradesh and others1, it has been held that the orders of Collector in making a reference or refuse to make a reference to the Court under Section 18 of the Act are merely acts of a statutory authority in exercise of statutory functions. The Collector is not a Court, nor his order, an award of the Court. The proceedings before the Collector are not judicial proceedings. The special limitation has been provided under the proviso to Section 18 of the Act and Section 29(2) of the Limitation Act has no application to the proviso to Section 18 of the Act. The benefit of Sections 4 to 24 of the Limitation Act, therefore, will not be available to the applications under Section 18 (1) of the Act. Section 5 of the Limitation Act, accordingly, cannot be invoked for extension of the period of limitation in moving application under Section 18 of the Act. As there is no provision in the Act enabling the Collector to extend the time in moving an application for reference, the Collector cannot entertain any application for extension, even if genuine and bonafide grounds for condoning the delay are made out. It was held that the observation of the High Court that an application for condonation of delay could have been made by the person interested, was incorrect.

Relevant observations of the Apex Court in paragraph '14', '15' and '16' of the abovenoted judgment are extracted as under:-

"14. The proviso to Section 18 requires that an application by a person interested, to the Collector, seeking reference of his claim for higher compensation for determination by the Court, shall be made within six weeks from the date of the Collector's award, if such person was present or represented before the Collector, at the time when the award was made. If not, the application for reference shall have to be made within six weeks of the receipt of the notice of the Collector under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire.

15. In Officer on Special Duty (Land Acquisition) & Anr. v. Shah Manilal Chandulal & Ors. [1996 (9) SCC 414], this Court held that in view of the special limitation provided under the proviso to Section 18 of the Act, Section 29(2) of the Limitation Act, cannot be applied to the proviso to Section 18 of the Act; and therefore, the benefit of Sections 4 to 24 of Limitation Act 1963, will not be available in regard to applications under Section 18(1) of the Act. It was also held that as the Collector is not a court when he discharges his functions as a statutory authority under Section of the Act, Section 5 of the Limitation Act 1963 cannot be invoked for extension of the period of limitation prescribed under the proviso to Section 18(2) of the Act.

16. As the Collector is not a civil court and as the provisions of Section 5 of the Limitation Act, 1963 have not been made applicable to proceedings before the Collector under the Act, and as there is no provision in the Act enabling the Land Acquisition Collector to extend the time for making an application for reference, the Collector cannot entertain any application for extension, nor extend the time for seeking reference, even if there are genuine and bonafide grounds for condoning delay. This view was reiterated in Steel Authority of India Ltd. vs. S.U.T.N.I. Sangam and others [2009 (16) SCC 1]. Therefore, the observation of the High Court that an application for condonation of delay could have been made by the person interested, is incorrect."

A Full Bench of this Court in Vijai Pal vs. State of U.P. and others2 referring to paragraph '14', '15' and '16' of the Apex Court decision in Bhagwan Das (supra) observed in paragraph '25' as under:-

"25. The general mandamus issued by the Division Bench in Smt. Savitri Devi's case (supra) as extracted above provides that whenever there is a dispute regarding limitation, the Collector shall adjudicate the same and refer it to the Court as contemplated under Section 18 of the Act, even if such authority comes to the conclusion that it is time barred. The Collector acts as a statutory authority. This jurisdiction given under Section 18 of the Act, is circumscribed by the conditions laid down in Section 18."

The same view has been taken in earlier judgments of this Court in State of U.P. and another vs. Purshottam and others3; Parasu Ram vs. State of U.P. and others4 and the Apex Court in Smt. Shushila Devi vs. Ramanandan Prasad and others5

Now the second question regarding the jurisdiction of the reference court whether it can examine the Collector's orders in making the reference or the orders refusing to make a reference. This question came up for consideration before the Apex Court in Mohammed Hasnuddin vs. State of Maharashtra6, it was observed in paragraph '22' of the said ruling that the word "requires" in Section 18 of the Act implies compulsion. On the written application for reference, the Collector is required to make a reference, after examining the application. The power of the Collector to make a reference under Section 18 is thus circumscribed by the conditions laid down therein and one condition is the condition regarding limitation to be found in the proviso.

It is further held that the Court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference. Every tribunal of limited jurisdiction is bound to exercise its jurisdiction within the limit of its special jurisdiction provided under the Act. The existence of jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction. The tribunal assumed jurisdiction in a matter, if it is satisfied that the conditions requisite for it in that matter have in fact arisen.

If application is moved beyond the prescribed period under Section 18 of the Act, the Collector will not have power to make a reference. It is duty of the Collector to decide whether the application presented by the claimant is or is not within time. Even if a reference is wrongly made by the Collector the Court will have to determine the validity of the reference because its jurisdiction to hear a reference depends on the fact that a proper reference is made to it. If the reference is not proper, there is no jurisdiction in the Court to hear the reference. It goes on to say further that it is the duty of the court to see that the statutory conditions laid down in Section 18 have been complied with and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It is only a valid reference which gives jurisdiction to the Court and, therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference.

In deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the Court, the Court is certainly not acting as a Court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The Court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to sub-section (2) of Section 18 of the Act and if it finds that it was so made decline to answer the reference.

The question as to what would be the date of award has been set at rest. The Supreme Court in State of Punjab vs. Mst. Qaisar Jehan Begum and another7 has held that the date of award means date of knowledge of award. Full knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award which may be either actual or constructive.

Relevant paragraph '5' is quoted as under:-

"5. As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandra's Case, 1962-1 SCR 676 : (AIR 1961 SC 1500). It was there observed that a literal and mechanical construction of the words "six months from the date of the Collector's award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression...... used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively." Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned counsel for the appellant has placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24, 1954. He has pointed out that the learned Subordinate judge relied on this petition as showing the respondents' date of knowledge and there are no reasons why we should take a different view. It seems clear to us that the ratio of the decision in Raja Harish Chandra's case 1962 (1) SCR 676 : AIR 1961 SC 1500, is that the party affected by the award must know it, actually or constructively and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under Section 12 (2) of the Act, the party -must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated December 24, 1954 that the respondents had knowledge of the award. One of the respondents gave evidence before the learned Subordinate Judge and she said "The application marked as Ex. D-1 was given by me but the amount of compensation was not known to me, nor did I know about acquisition of the land. Chaudhari Mohd. Sadiq, my karinda had told me on the day I filed the said application that the land had been acquired by the Government."

This evidence was not seriously contradicted on behalf of the appellant and the learned Subordinate judge did not reject it. It is worthy of note that before the Collector also the appellant did not seriously challenge the statement of the respondents that they came to know of the award on July 22, 1955 the date on which the compensation was paid.In the reply which the appellant filed before the learned Subordinate judge there was no contradiction of the averment that the respondents had come to know of the award on July 22, 1955. That being the position we have come to the conclusion that the date of knowledge in this case was July 22, 1955. The application for a reference was clearly made within six months from that date and was not therefore barred by time within the meaning of the second part of cl. (by of the proviso to Section 18 of the Act."

In the instant case, the release application for making reference was moved with the prayer to condone the delay in filing the same on the ground that the applicants were not aware of the legal procedure. They were contesting before the Civil Court under bonafide belief that their land would be exempted and consequently released and, therefore, the delay in filing reference occurred. The appeal filed by the State Government against the injunction decree was dismissed on 17.12.1990. They kept waiting for certain period to confirm as to whether a second appeal has been filed by the State Government. After confirmation of the fact that the order in appeal was not challenged they moved this application.

There is no dispute that they have not raised a plea in the application that they were not aware of the award or its essential contents were not in their knowledge. Rather in the suit filed by the tenure holders in the year 1971 namely Original Suit Nos. 60 of 1971 and 430 of 1971, it was stated in the plaint that the authorities had taken possession of the land and constructed road therein. The award was made for a nominal amount without service of notice upon the claimants. They came to know about the award and that the compensation at a very low rate had been awarded, they would contest the award in an appropriate proceeding.

These averments in the plaint of Original Suit No. 60 of 1971 and Original Suit No. 430 of 1971 are sufficient to conclude that the claimants were aware of not only the award but also the essential contents of the award. Moreover, in the application for making reference there is no ground that the applicants/tenure holders were not aware of the contents of the Award.

As the Limitation Act does not apply in a proceeding under Section 18(1) and, therefore, the plea of the appellant for condonation of delay in making the reference cannot be accepted. The reference court though has rejected the application for making reference being grossly beyond the time with the finding that there was no sufficient reason to condone the delay by taking recourse to Sections 5 and 14 of the Limitation Act after detailed discussion of the material on record. However, in view of the above discussion the said finding was not required as the settled position is that the Limitation Act does not apply in such proceedings.

Now the last question is whether the present appeal under Section 54 of the Act against the order of the refusal to entertain reference is maintainable. In Bhagwan Das (supra), a question came up for consideration before the Apex Court as to whether an appeal would lie under Section 54 of the Act against the order or award refusing to make a reference. It was held that the orders of Collector are merely acts of a statutory authority in exercise of statutory functions and are not adjudicatory in nature. Such orders are not awards. The Land Acquisition Collector is not a Court nor his order, an award of the Court. Section 54 of the Land Acquisition Act does not provide for appeals against the awards or orders of the Collector. Thus the order of the Collector refusing to refer a claim for making reference is not a appealable under Section 54 of the Act.

Considering this principle, it may be noted that in the present case the Collector in fact did not make reference after examination of the application on the question of limitation prescribed for making it under the Act. The reference was made subject to the question of limitation which was required to be examined by the Collector himself. The Civil Court on such a reference was required to be examined further as to whether the reference was made strictly applying the terms and conditions of Section 18.

It is settled principle that the condition for making of an application for reference within the time prescribed by the proviso to Section 18(2) is a sine qua non for a valid reference by the Collector.

For the above noted reason, it is held that the reference made by the Collector was not a valid reference for the reason that the question of limitation for making reference under proviso to Section 18(2) was not examined by him and further that upon perusal of the application itself, it is evident that a prayer was made to condone the delay under Sections 5 and 14 of Limitation Act in making reference. As the Limitation Act is not applicable, there was no power before the Collector to make the reference under Section 18(1) of the Act. For that reason solely the Collector was required to refuse to make the reference. This question was not examined by the reference court and it has wrongly rejected the application on irrelevant ground that there was no valid/sufficient reason to condone the delay under the Limitation Act rather the application for making reference ought to have been rejected on the ground that it was not moved within the time prescribed by the proviso to Section 18(2) of the Act from the date of knowledge of the Award. The reference court though initially proceeded to examine the question of date of knowledge of the Collector's award to the land holders and recorded that they had knowledge of the award but diagressed itself on the question of limitation for making an application for reference.

Even in case where the application for making reference is rejected by the Collector on the ground of limitation, the remedy before the applicant was to approach either this Court invoking the jurisdiction under Article 226 of the Constitution of India or to approach the Civil Court under Section 52 of the Act which provides for notice for filing suit against any action done in pursuance of the Act after giving notice to the concerned person.

In any case, the order of refusal to make a reference is not an award and, therefore, the present appeal under Section 54 of the Land Acquisition Act would not lie against the order rejecting the application for making reference on the ground of limitation.

For the above reasoning the First Appeal is dismissed.

 
Order Date :- 29.4.2016
 
B.K.								(Sunita Agarwal, J.)