Ashok Kumar vs Union of India

Sharma, J.

l.The short and the only question involved for consideration in this Letters Patent Appeal is, whether an applicantion under Section 18 of the Land

Acquisition Act requiring the Collector that the matter be referred for determination to the court is within time or not is to be decided by the

collector or the court? The learned Single judge (Hon'ble Mr.Justice T.S.Doabia) answered this question as aollows:

This question of limitation would depend upon the fact as to whether the award was passed in the presence of parties or otherwise. This is a

question of fact, collector can not decide the same.

The question as to whether a reference is barred or not, has necessarily to be decided by the Reference Court. The collector, Land Acquisition

can not pronounce upon the matter. He is simply to refer the matter to the Reference Court. It is the Reference court, who is to ultimately decide

as to whether the reference application was within limitation or suffered from any other lacuna, which prevents its decision on merits. This aspect of

the matter was considered by a Full Bench of Punjab & Haryana High Court in the case reported as ""Sher Singh v/s Union of India""AIR 1983

Punjab & Haryana 107....

The appellants challenge the finding on the ground that whether the judgement relied by the writ court lay down such a proposition nor it is

warranted by Section 18 of the Land Acquisition Act (for short the Act). 2. Mr.V.Bhushan Gupta, appearing for the appellant, submits that both

the judgements relied upon by the writ court in fact support the conclusion that the collector must decide the question of limitation before making a

reference. He has also placed reliance on the decision of the apex court in Mohammad Hasnudin v/s State of Maharashtra, AIR 1979 SC 404.

However, the contention of Mr.Kotwal, appearing for the respondents, is that the respondents had no notice of the award and, therefore, the

order of collector is bad and was rightly set aside with the direction to make reference to the court. 2. We have gone through the judgement relied

by the writ court, but with regret express our inability to find any support to sustain the conclusion reached by him. Our reasons for the same are as

follows:

One of the questions answered by the Full Bench, in Swatantra L&F Pvt.Ltd. v/s State of Haryana, AIR 1975 Punjab & Haryana 52, is regarding

the power of collector to decide whether application for making reference under section 18 of the Act is within time? it reads as under :

.....it is a well known principle of law that any provision of law which authorises a competent authority to receive an application and to take action

thereon if it is made within time, gives an inherent power to that authority to reject the same and not to act thereupon if it is made beyond time. The

collector has not been given any authority to condone the delay and, therefore, any reference made on a time barred application will be illegal and

not in accordance with the provisions of the Act.....

It is the failure to notice this conclusion because of which a different finding has been reached by the writ court. As a matter of fact the question

before the Full Bench was, whether a District Judge could go behind the reference and determine whether the reference made was valid or not

when the collector had failed to address himself to the requirement of section 18 of the Act? The Full Bench answered this as follows:

It is thus evident that the majority of the High Courts are of the opinion that it is open to the District Judge to go behind the reference and to

determine whether the reference made to him was valid or not, that is, the conditions precedent prescribed in Section 18 of the Act had been

complied with, one of which is that the application to the Collector for reference to the District judge should have been made within the prescribed

time. If it has been made beyond time and the collector does not reject it, the District Judge will be bound to adjudicate on the matter in case an

objection is raised by the respondent and to reject the reference if it is found that the application to the Collector was made beyond the time

prescribed in the proviso to subsection (2) of Section 18 of the Act......

So the Full Bench has repeatedly held that collector, before making a reference, has to decide whether it is within limitation and when he does not

do so, the reference court will be bound to adjudicate the same.

Similarly, in Sher Singh v/s union of India(FB),AIR 1983 Punjab & Haryana 107, the Bench after referring to a catena of decisions, held as

under:

The statute provides in no uncertain terms for the mode of assailing the award, the manner in which and to whom it is to be presented and the

ground on which it can be pressed Not only that, the statute is further careful in prescribing not one but three specific periods of limitation. If the

claimant is present at the rendering of the award he can avail the right to claim a reference against the same only within six weeks therefrom.

However, if he is absent at that material time the law gives him a certain latitude and within six months from the date of award he can present a

similar reference. In case a notice under Section 12(2) has been issued the prescribed time of limitation is again only six weeks from the date of

receipt of such a notice. Public policy and public interest are involved in the expeditious finalisation of acquisition proceedings...........

Again relying on an earlier Full Bench decision in Radhay Shayam Gupta v/s State of Haryana,AIR,1982 Punjab and Haryana 519, the Full Bench

held that:

From the aforesaid authoritative annuciation and even otherwise on principle, it seems to be plain that the rights of neither the citizen nor that of the

state can be kept in a flux or in a state of ambivalence for years because the land is acquired for a public purpose and in cases of emergency may

even be taken possession of land utilised for the said purpose during the interregnum. Therefore, without first holding that a written application

under Section 18 for a reference was duly filed and that it had been so done within the period of limitation no right for enhancement for

compensation can arise in favour of the claimant............

As a matter of fact, there has hardly been any diversions of Judicial opinion in respect of scope of section 18 of the Act. The Bombay High Court

in G. J.Desai v/s Abdul Majid Qadri.AIR 1951 Bom 156 held as under:

The power of the collector to make a reference is circumscribed by the conditions laid down in Section 18 and one important condition is the

condition to be found in the proviso. That proviso lays down the period within which the application has got to be made, which is not within time,

the collector would not have the power to make the reference. In order to determine the limits of his own power it is clear that the collector would

have to decide whether the application presented by the claimants is or is not within time and satisfies the conditions laid down by the proviso.

Assuming that the collector is wrong in the view that he takes as to the maintainability of the petition and refuses to make a reference, it would

always be open to the claimints to come to court and get the court to compel the collector to make a reference, if they satisfy the court that their

application was within time.....

So the law is settled that the requirments of Section 18 of the Act must be fulfilled before the matter can be referred to the court. Not otherwise.

The learned Single judge relied on a portion of para 11 of the judgement (AIR 1983 P&H 107) to support his conclusion, but the reference is

out of context because the aforesaid paragraph begins with the following:

In the aforesaid context, it inevitably follows that the petitioner in this case has been denied the right of a meaning full enquiry (which he

undoubtedly has) into his very claim that he had in fact preferred a reference under Section 18, which has not been duly forwarded......

So it was the failure of Collector to decide the application under Section 18 which necessiated the observations referred to by the learned Single

Judge. 6. Mr. Gupta also placed reliance on a decision of this court in Roshan v/s S.D.O.and others, 1982 KLJ 109 in which Dr. Anand J(now

Hon'ble the Chief Justice of India) held as follows:

The opening words of the Section that the application can be made by any person interested are significant. Before a collector can make a

reference he must be satisfied (1) that the application is by an interested person (2) that such person has not accepted the award (3) that the

dispute raised by the person is with regard to measurement of land or the amount of compensation or an apportionment of compensation amongst

the persons interested. If these grounds are satisfied then subject to the limitations prescribed in Subsection (2) a reference has to be made by the

Collector to the Districrt Judge"".

While rejecting the argument to the contrary, his Lordships further held:

To me, however, it appears that the jurisdiction of the collector to make a reference is contingent upon the satisfaction of the conditions laid down

in exercise of the jurisdiction, if without looking into the question whether the conditions envisaged by Section 18 have been satisfied or not, he

makes the reference to the District Judge simply because the applicant seeks a reference. Doing so would imply that the collector merely acts as a

post office and does not apply his mind to the application. The Collector has no authority to make a reference if he finds that the applicant is not a

person'interested'within the definition of the expression given in Section 3(b) of the Land Acquisition Act.

The ratio of the judgement thus is that the Collector has to decide the question of limitation before making the reference. This view finds support

from the judgement of Calcutta High Court in Khetsidas v/s F.L.A Collector(FB),AIR 1946 Calcutta 508 wherein it is held.

The language of Section 18 is that a person interested may 'require' the collector to make a reference to the court. The only qualifications are that

the applicant must be a person interested ,i.e. a person claiming an interest in the compensation (S.3(b) and his application must be made within

certain limits of time. The Section does not say that it is for the Collector to see if these conditions have been satisfied, nor that, if they are not

satisfied, he may reject the application, but we think these powers are implied. We can not agree with the Chief court of Oudh that the collector is

bound to make a reference, whenever, and by whomsoever required, and that if he has any objections, he can only make a note of them and

forward them to the court.....

We, however, find that the question involved is no longer resintegra in view of the judgment in Mohd.Hasnuddin v/s State of Maharashtra, AIR

1979 SC 404, where it has been laid down that:

The word 'require' in Section J8 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the

collector to make a reference. The collector is required to make a reference under Section 18 on the fulfilment of certain conditions. The First

condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the

nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. 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.

The conditions laid down in Section 18 are matters of substance and their observance is a condition precedent to the Collector's power of

reference, as rightly observed by Chandavarkar J. in Re Land Acquisition Act (supra). We are inclined to the view that the fulfilment of the

conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It

must accordingly be held that the making of an application for reference within the time prescribed by proviso to Section 18, subsection(2) is a sine

qua non for a valid reference by the Collector.

We also find that in State of U.P.v/s Abdul Karim, AIR, 1963 A11.556(FB) their Lordships of Allahabad high Court had taken the same view

which has been propounded by the learned Single Judge. However, this view was not accepted by the apex court in Mohammad Hasnuddin's case

(supra) where after laying down the above principles, their Lordships further held that:

From these considerations, it follows 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. In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court

in Abdul Karim's case (AIR) 1963 All 556(FB)(Supra)...

Their Lordships further held that if an application is not made within time, the collector will not have the power to make a reference and observed

as under:

If an application is made which is not within time, the collector will not have the power to make a reference. In order to determine the limits of his

own power it is clear that the collector will have to decide whether the application presented by the claimant is or is not within time and satisfies the

conditions laid down in Section 18. Even if a reference is wrongly made by the collector the court will still have to determine the validity of the

reference because the very jurisdiction of the court to hear a refedrence depends on a proper reference being made under Section 18, and if the

reference is not proper, there is no jurisdiction in the court to hear the reference. It follows that it is the duty of the court to see that the staturory

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 view of the above, the judgment impugned is liable to be set aside, being contrary to law

laid down by the apex court.

So the law is settled that it is the statutory duty of the collector to satisfy himself about the conditions laid down in section 18 of the Act before

making a reference to the court. It is also settled law that jurisdiction of the court to hear the reference depends upon the validity of the reference.

In view of this, the learned single Judge has erred in holding that the collector had so jurisdiction to decide the question of limitation.

Accordingly, this appeal is allowed and the judgment impugned set aside. Since the writ court has not decided the question, whether the

application for making reference has been filed within the period prescribed under section 18 of the Act and the appellants were not even put on

notice, therefore, the entire case is to be reheard and decieded afresh after giving the appellants opportunies to file objections/counter. We make

the order accordingly. Jammu: 22.03.99 sd/sd/