Chittaranjan Sahu vs Collector

B.K. Ray, J.—The Appellant owned plot No. 178/976 with an area of 0.20 acre under Holding No. 254 in village Remuna. This land was acquired under the Land Acquisition Act (herein- after- called the ''Act''). An award determining compensation for the land at Rs. 690/ - was passed by the Collector on 18-12-1967. It is admitted by the Appellant that notice u/s 12(2) of the Act was served upon him and upon such service he filed a petition u/s 18 of the Act before the Land Acquisition Officer to refer the case to the Court on 22-12-1967. The Appellant did not pay Court fee on this petition. On 25-3-1968 a notice was served upon the Appellant calling upon him to pay the Court-fee. On 18-4-1968 the Appellant paid the Court-fee. On 1-8-1968 the petition u/s 18 of the Act was put up before the Collector and thereafter a reference u/s 18 of the Act was made to the Court of the Subordinate Judge, Dhenkanal. The learned Subordinate Judge by order dated 18-11-1971 rejected the reference on the ground that the petition filed by the Appellant on 22.12.1967 was not a reference petition u/s 18 of the Act as the same was filed without Court-fee; that the Court-fee having been paid on the petition on 18-4-1968 a valid petition u/s 18 of the Act was only filed on that day; that the filing of the petition on 18-4-1968 being beyond forty-two days from the date of service of notice u/s 12(2) of the Act was barred by limitation and that therefore there could be no valid reference to the Court in the eye of law on the basis of such a petition. Hence the present appeal

The first contention of Mr. R.C. Mohanty, learned Counsel for the Appellant in support of the appeal is as follows:

The Collector under the Act is the only competent authority to make a reference u/s 18 of the Act to the Court. Section 18 of the Act provides a period of limitation under the Act within which a reference petition has to be filed before the Collector. Therefore, if such a petition is filed it is for the Collector to decide if it is barred by limitation or not. Once the Collector accepts the time-barred petition and makes a reference on it to the Court, the latter cannot reject the same on the plea that no valid reference has been made on the ground that no reference could be made on a time-barred petition. Learned Government Advocate for the Respondent repels this contention of Mr. Mohanty by saying that when law provides that a reference application is to be made within a prescribed time and if such an application is made beyond time, the said application cannot be treated as an application u/s 18 of the Act and hence it cannot form the basis of a reference to the Court. Therefore, a reference made upon such an application is no reference in the eye of law and the Court to which such a reference is made is not bound to entertain and dispose of the same on merit. A Court has always the jurisdiction to decide whether a reference made to it is valid one or not. When a jurisdiction is given to a Court by an enactment subject to fulfillment of certain conditions prescribed in that enactment, these conditions must be fulfilled in order to create jurisdiction in the Court. The Court therefore before exercising jurisdiction must be satisfied if the conditions laid down in the statute to create jurisdiction have been satisfied, because a Court has always the power to decide if it has or not jurisdiction to entertain certain matter in controversy between the parties. In this view, not only the Court below in the present case has rightly taken up the question as to whether it has jurisdiction to decide the reference, but has rightly decided the question by saying that the conditions laid down in the Act not having been fulfilled it has no jurisdiction to entertain the reference.

In order to decide the point it has first of all to be determined if the conditions prescribed in Section 18 of the Act are mandatory or directory. There is no rule of universal application for determining as to whether certain provisions in a statute are directory or mandatory. The intention of the legislature is to be ascertained in each case.

On the question as to whether a reference made on an application filed beyond time as prescribed in Section 18 of the Act is not a valid reference in the eye of law and as to whether Court can reject the same on the ground that such a reference does not give jurisdiction to it to dispose it of on merit, their Lordships of the Patna High Court in a Division Bench decision reported in Ramdeyal Singh Vs. State of Bihar, , after noticing the decisions of other High Courts In India have expressed the view that the provisions of Section 18 of the Act are mandatory; that a reference made by the Collector on a time-barred application is not a valid one in the eye of law and that the Court which has always the jurisdiction to decide as to whether it has or not got jurisdiction to entertain a matter can reject such a reference on the ground that it is not a reference as contemplated in la wand'' hence it has no jurisdiction to entertain the same. It appears that the High Courts of Bombay, Madras, Kerala, Calcutta, Rajasthan and Jammu and Kashmir have taken the same view as expressed in the abovementioned case of the Patna High Court. The High Court of Allahabad has, however, consistently taken a different view-see State of Uttar Pradesh Vs. Sri Abdul Karim, . In that Full Bench decision of the Allahabad High Court the decision of other High Courts have also been considered and it has been held there that the Land Acquisition Judge cannot go into the question of limitation where a reference has been made by the Collector. This view was once accepted by the Punjab High Court (see Hari Krishan Khosla Vs. State of Pepsu, . but a later decision of the High Court of Punjab and Haryana reported in Swatantra Land and Finance Private Ltd. Vs. The State of Haryana, has overruled the earlier decision reported in Hari Krishan Khosla Vs. State of Pepsu, , and has taken the view expressed by the other High Courts except that of Allahabad High Court.

Some support to the view taken by the High Courts of Bombay, Madras, Kerala, Calcutta, Patna, Rajasthan, Punjab and Haryana and Jammu and Kashmir is also available in the decision of the Supreme Court reported in Kanakarathamma v. State of Andhra Pradesh AIR 1965 S.C. 301. The relevant passage from that decision is extracted below.

.... On behalf of the Appellants it was contended before the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defects in the procedure was such as could be waived. In our opinion the view of the High Court is - not correct. Section 12(1) of the Land Acquisition Act provides that after an award is filed in the Collector''s office it shall, except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of Section 18 of the Land Acquisition act, Sub-section (1) of which reads thus:

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. The proviso to Sub-section (2) prescribes the time within which an application under Sub-section (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that reference. Thus the matter goes to the Court only upon a reference made by the Collector. It is only after such a reference is made that the Court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the Court to consideration of the contention of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the Court arises solely on the basis of a reference made to it. No doubt the Land Acquisition Officer has made a reference u/s 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the Court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in 6 M.A. 134 Nusserwanjee Pestojee v. Meer Mynoodeen Khan Bahadoor, wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the Court in the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.

In my opinion, the view expressed in the decision reported in Ramdeyal Singh Vs. State of Bihar, which is in line with the view expressed by almost all other High Courts, except the High Court of Allahabad, is the correct view, and so, I hold that the civil Court has jurisdiction to reject a reference made u/s 19 of the Act by the Collector on a time-barred application.

The aforesaid conclusion, however, does not finally dispose of the appeal. As has been pointed out, the award was made by the Collector on 18-12-967, and as a matter of fact, the petition for referring the case to the Court was made by the Appellant on 22-12-1967. It is admitted in paragraph 4 of this petition that notice u/s 12(2) of the Act had been served on the Appellant. The date of such service - is, however, not mentioned in the application nor is there any material before me to come to a finding regarding the exact date of service of this notice. It has, therefore, to be assumed that the Appellant received notice u/s 12(2) of the Act between 18-1-1967, the date of the award and 22-12-1967, the date of application u/s 18 of the Act. Learned Government Advocate, however, contends that an application u/s 18 of the Act is chargeable with Court-fee under Article 1 of Schedule II of the Court-fees Act. u/s 6 of the Court-fees Act, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act shall be filed, exhibited or recorded in any Court of justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules is the proper fee for such document. Accordingly, it is urged that the application u/s 18 of the Act filed by the Appellant on 22-12-1967 should be ignored. The records of the Collector show that on 25-3-1968 notice was issued from the Collector''s office to the Appellant to pay Court-fee on the application u/s 18 of the Act. The Appellant on receipt of the notice paid Court-fee on 18-4-1968. It is hence urged that 1 18-4-1968 should be taken to be the date when the application u/s 18 of the Act was filed by the Appellant. Accordingly, the application must be taken to have been filed beyond the prescribed period of limitation, and so, on such an application no valid reference could have been made by the Collector.

Mr. R.C. Mohanty in reply contends that under the amendment to Section 18 of the Act Collector''s order refusing to refer a case is subject to revision by this Court. Hence the Collector exercising powers under Sections 18 and 19 of the Act shall be deemed to act as a Court subject to the revisional jurisdiction of the High Court. This position is also not seriously disputed by the learned Government Advocate. Mr. Mohanty then proceeds on to say that u/s 149, CPC where the prescribed Court-fee has not been paid on any document the Court may at any stage allow the person by whom such fee is payable to pay the prescribed Court-fee and upon such payment the document shall have the same force and effect as if such Court-fee had been paid in the first instance. In the present case, the Collector issued notice to the Appellant on 25.3.1968 to pay proper Court-fee on the application u/s 18 of the Act, and it is said that on receipt of such notice without any delay the Appellant paid the Court-fee on 18-4-1968 which was accepted by the Collector whereupon the Collector made a reference to the Court. Therefore, according to Mr. Mohanty, the reference application must be deemed to have been filed on 22.12.1967. According to Mr. Mohanty, a Court suo motu without an application can also grant time to pay Court-fee on a document where the said document has been filed without the requisite Court-fee. In the present case, by issuing notice on the Appellant asking him to pay Court-fee the Collector allowed time and subsequently accepted the Court-fee when paid in pursuance to the notice. So, u/s 149, CPC the application u/s 18 of the Act should be deemed to have been filed on 22-12-1967 and by 22-12-1967 the application was not time-barred. For this proposition Mr. Mohanty relies upon a decision reported in State of Punjab v. Nand Kishore AIR 1966 Punj. 332. The following passage from that decision is extracted below:

Applications u/s 5 of the Limitation Act for extending the period of limitation for filing an appeal where an Appellant is prevented by sufficient cause from so doing within time are treated entirely on a different footing than applications u/s 149 of the Civil Procedure Code. Whereas each day''s delay in filing an appeal beyond the period of limitation has to be explained by an Appellant in cases covered by Section 5 of the Limitation Act to show that the Appellant was prevented by sufficient cause from filing the appeal on each of those days no such consideration arises in applications u/s 149 of the Code.

It has been held by the Supreme Court in Mahasay Ganesh Prasad Ray and Another Vs. Narendra Nath Sen and Others, , (though in a different context) that the question of payment of Court-fees is primarily a matter between the Government and the person concerned and the other party cannot attack the order on the ground that it takes a way his valuable right to plead the bar of limitation. Section 149 of the Code carves out an exception to the general rule contained in Sections 4 and 6 of the Court Fees Act (about no document or proceeding filed in Court amounting to a legal institution or legal presentation of it if it is not affixed with the Court-fees chargeable on it) by giving to the Court concerned a power to permit a litigant to pay the requisite fee at any stage of the proceeding after the deficiently stamped document has been filed therein and by further providing that on deficiency being so made up within the time allowed by the Court, the subsequent payment of the deficient Court-fees would have the same effect as if proper and full Court-fees had been paid in the first instance. If discretion u/s 149 of the CPC is exercised by the Court a petition (If appeal on which insufficient Court-fee has been paid, would not become barred by time if it was within time when originally instituted provided full fee leviable on it is paid with the leave of the Court even after the expiry of the period of limitation. An order under this section can be passed by the Court suo motu in the peculiar circumstances of any case even without a formal application being made for the purpose.

Reliance is also placed by Mr. Mohanty on a decision reported in Sonba Keshao v. Rodrigues AIR 1938 Nag. 322, where it has been held that where Court-fee has been paid u/s 149, CPC it is not a question whether there was sufficient cause for the failure to pay the entire Court-fee within the proper time, but whether the Court acted unreasonably in allowing an extension of time. In such circumstances, the Court has discretion to grant an extension of time and whether that discretion could be exercised or not is a matter for the Court. Relying on those two decisions Mr. Mohanty strongly urges that once the Collector issued notice to the Appellant to pay the Court-fee on the application u/s 18 of the Act and in pursuance to the notice the Appellant paid the Court-fee the Collector must be deemed to have exercised his discretion as a Court u/s 149, CPC and it cannot be said that such a discretion was used unreasonably. This contention of Mr. Mohanty has sufficient force. Hence the petition u/s 18 of the Act must be held to have been filed in time. So a reference made on such a petition cannot be treated as invalid in the eye of law.

The case may be looked at from another point of view also. Section 29 of the Limitation Act, 1963 provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 of the Limitation Act shall apply as if such period were the prescribed period by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Section 4 to 24 (inclusive) of the Limitation Act shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. The aforesaid provision clearly indicates that unless there is an express prohibition in the Land Acquisition Act the provisions contained in Section 5 of the Limitation Act would apply. The settled view of this Court is that a Court can condone the delay in filing an appeal or application beyond time without a formal application being made by the party concerned. In the present case, the facts reveal that after the Appellant filed his application u/s 18 of the Act without Court-fee on 22-12-1967 a notice was issued to him on 25-3-1968 calling upon him to pay the Court-fee. In pursuance to this notice the Appellant paid the Court-fee on 18-4.196::1 and the Collector accepted the same and thereafter made a reference to the Court. It is thus conclusively established that the Collector after the Court-fee was paid on 18-4-1968 condoned the delay, if any, in filing the application assuming that the application was filed on 18-4-1968 and after due consideration referred the case to the Court. The learned Government Advocate, however, urges that it does not appear from the Collector''s record that the Collector applied his mind to the question of delay in filing the application and condoned the same. The fact that a notice was issued to the Appellant on 25-3-1968 for payment of Court-fee and the fact the Court-fee having been paid in pursuance to the notice the application was put up before the Collector whereafter the latter referred the case to the Court clearly go to show that the Collector did apply his mind to the question of delay and having condoned the delay referred the matter to the Court. I do not therefore feel any necessity as contended by the learned Government Advocate to send the case back to the Collector for his fresh consideration on the question of condonation of delay in filing the application u/s 18 of the Act.

The net result, therefore, is that the reference made by the Collector is a valid one in the eye of law and the Court below is wrong in dismissing the same. I would therefore set aside the impugned order of the Court below and sent the case back to it for fresh disposal according to law in the light of the observations made above. Costs of the appeal shall abide the final result.