Kashaba Daji Shinde vs M.V. Hinge

S.P. Kotval, J.—The short question raised in this petition is whether a person applying to the Collector to make a reference under s. 18 (1) of the Land Acquisition Act can claim exclusion of the time taken for obtaining copies of the award in respect of which he applied that a reference should be made.

The facts are not in dispute. The award in this case was made by the Land Acquisition Officer, Satara, on August 30, 1961. Notice under s. 12 (2) of the Land Acquisition Act of the making of the award was given on December 23, 1961. On January 3, 1962, the petitioner went to the office of the Collector and made an application for certified copies of the award. He received the copy of the award on January 18, 1962. He filed his application under s. 18 (1) on February 12, 1962. The Collector has declined to make any reference on the short ground that the petitioner''s application under s. 18 was barred by time. Section 18 runs as follows:

(1) 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 far 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)....

(b) in other cases, within six weeks of the receipt of the notice from the Collector u/s 12, sub-section (2), or within six months from the date of the Collector''s award, whichever period shall first expire.

Now there is no question here of the latter part of the second proviso to s. 18 (2) applying for the notice from the Collector under s. 12 (2) was received, as shown above, on December 23, 1961. Therefore, for the purpose of limitation the clause of the proviso which is applicable is "within six weeks of the receipt of the notice from the Collector u/s 12 (2)". Now the notice was received on December 23, 1961. The petitioner filed his application under s. 18 (1) on February 12, 1962, which is more than six weeks from the date of the notice. The six weeks expired on February 3, 1962. Thus the application under s. 18 would be barred by nine days unless as has been contended by Mr. Rane on behalf of the petitioner he is entitled to exclude the time taken for obtaining copies of the award. The time taken, as we have already shown, was from January 8, 1962, to January 18, 1962, and if the petitioner could claim exclusion of this time it would bring his application within six weeks and, therefore, clearly within limitation. In order to claim exclusion of the time taken for obtaining the copy of the award, Mr. Rane on behalf of the petitioner has relied upon two provisions of the Limitation Act-sub-s. (2) and sub-s. (4) of s. 12-read with s. 29 thereof.

Now, undoubtedly s. 29 is very widely worded and makes s. 12 applicable to all proceedings under any special or local law. Sub-section (2) of s. 20 provides:

(2) 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 shall apply as if such period were the period prescribed 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 sections 4 to 24 (inclusive ) shall apply only in so far as, and to the extend to which, they are not expressly excluded by such special or local law.

Thus sub-s. (2) of s. 29 makes the provisions of s. 12 of the Limitation Act applicable to applications of every kind under any special or local law. The Land Acquisition Act is a special law and, therefore, by virtue of s. 29 ( 2) s. 12 would apply. Section 29(2) speaks generally of all applications but when we turn to the provisions of s. 12, we find that sub-s. (2) speaks of the period of limitation prescribed for three things, viz. (1) an appeal; (2) an application for leave to appeal and (3) an application for revision or for review of a judgment. It is only in respect of the three categories of proceedings mentioned that a party is entitled to exclude the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed. Thus sub-s. (2) does not cover the case of an application to make a reference under s. 18 for it cannot by any stretch of language be held to be either an application for leave to appeal or an application for review of judgment. Therefore, in terms sub-s. (2) of s. 12 cannot apply.

But the argument on behalf of the petitioner has been that reading sub-s. (2) of 8. 29 in the context of a. 12 (2) the main principles contained in sub-s. (2) of s. 12 ought to be held to apply to all applications under a special or local law. In this respect Mr. Rane has relied upon a decision of this Court in Pradhan v. Bombay State Federation, etc. (1956) 58 Bom. L.R. 894 and upon the decision of the Patna High Court in Mohan Lal Hardeo Das Vs. Commr. of Income Tax, . In D. B. Pradhan''s case this Court was concerned with an application under s. 72 of the Bombay Public Trusts Act which prescribes that any person aggrieved by the decision of the Charity Commissioner under certain sections, (that case was concerned with a decision under s. 79) may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. In that case the application on the date on which it was made was obviously barred and a claim similar to the one in the present case to exclude the days required for obtaining copies of the order of the Charity Commissioner was made. No doubt the application was not an application such as would fall within any of the two classes of applications contemplated by sub-s. (2) of s. 12, viz. an application for leave to appeal or an application for review of judgment; but Chief Justice Chagla analysed the provisions of s. 72 of the Bombay Public Trusts Act and came to the conclusion that in substance the so-called application under s. 72 was not an application but could well be treated as an appeal. At page 896 he observed:

Now, although s. 72 (1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court, we must look at and consider the real nature of the right that is conferred by this sub-section. In substance, if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision, and if satisfied that the decision is erroneous must set it aside and give the necessary relief to the party aggrieved by that decision. Therefore in substance there is very little difference between an application contemplated by s. 72(1) ( and a right of appeal against the order of the Charity Commissioner.

In that view taken of the nature of the right under s. 72 (1) viz. that it was virtually an appeal it was held that s. 12 (2) would become applicable to an application under s. 72 (1) of the Bombay Public Trusts Act made to the City Civil Court against the order of the Charity Commissioner. Now it is not contended here-and indeed cannot be so contended-that the application to be made under s. 18 is in the nature of an appeal as was contended in that case. The words used in s. 18 are "by a written application to the Collector" and even having regard to the real nature of the relief to be granted under s. 18 or looking to the substance of the right granted it is clear that it is in the nature of an original application and not in the nature of an appeal against the order of the Land Acquisition Officer. The decision in Pradhan''s case cannot, therefore, govern the petition in the present case.

In giving the above decision on the principal point in that case Chagla, Chief Justice, made some general observations on the construction of s. 29 of the Limitation Act which were relied on. He observed:

...the question is whether section 29 of the Limitation Act must be strictly construed or it must receive a liberal construction at our hands.

Then the learned Chief Justice referred to the decision of the other Courts particularly to Mohanlal v. Commr. income tax, a case on which Mr. Rane has also strongly relied, and further held (p. 897 ):

...Therefore, what these decisions emphasise is that we must look at the nature of the application which has got to be made under a special law, and if the nature of the application shows that essentially and substantially it is in the nature of an appeal, then the provisions of s. 12 (2) should be made applicable to that special law.

The learned Chief Justice no doubt referred to the Patna case but he referred to it only to substantiate the general point relating to the interpretation of the words of the statute that it is the substance of the application that has to be looked at and not the mere form. He did not rely on the ratio decidendi of the case.

But what has been canvassed before us on the basis of the Patna and other cases is a much wider proposition. It is pointed out that in sub-s. (3) of s. 29 the words " any suit, appeal or application " have been used without any qualification whatsoever. Since the application for a reference under s. 18 of the Land Acquisition Act was an application under a special law, s. 12 (2) would apply. The question, therefore, that arises is whether the limitation placed upon the nature of the proceedings in s. 12 (2) by expressly limiting it to appeals or to applications for leave to appeal or applications for review of judgment should be ignored or set at nought and it must be held that s. 12 (2) applies to any and every application because of the use of the words " any......application " in s. 29 (2) .

It seems to us that in doing so we would be giving an interpretation to s. 29 (2) which would be contrary to the express terms of s. 12 (2) . Section 12 (2) limits the right of exclusion of copying days to only three proceedings viz. an appeal, an application for leave to appeal and an application for review of judgment. We have already shown that the application under s 18 cannot be regarded as an appeal and it is not contended that it can be an application for leave to appeal or an application for review of judgment. It seems to us impossible to hold even having regard to sub-s. (2) of s. 29 and placing the most liberal construction on it that any other application under a local or special law, not contemplated by s. 12 (2) would be included in that section. Such an interpretation would be doing violence to the language of sub-s. (2) of s. 12 and no principle of construction justifies it.

No doubt in Mohanlal v. Commr. of income tax, Bihar and Orissa such a view was taken in connection with an application for reference under s. 66 (2) of the income tax Act and Fazl Ali J., as he then was, had held that in view of s. 29 (2), s. 12 (2) must be held to apply to any application under a special or local law. At page 18 he held:

...One of the sections referred to here is S. 12, Lim. Act, which provides that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed shall be excluded. Now, reading the two sections together there seems at the first sight to arise a difficulty which was unfortunately not noticed by either party in the course of the argument before us. S. 12 apparently provides that the time for obtaining copies is to be excluded only in case of an appeal, an application for leave to appeal and an application for review of judgment. The question thus arises is whether an application under S. 66, Cl. 2, made to the Commissioner of income tax or an application under S. 66, Cl. 3, made to this Court will be covered by the provision of S. 12, Lim. Act. In my opinion, however, S. 29 should be liberally construed and when we turn to that section it appears that it provides for the application of S. 12, Lim. Act:

for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

Thus it will not, I think, be straining the law to hold that the main principle laid down in S. 12, namely, that the period for obtaining copies shall be excluded in computing the period of limitation in certain cases has been made applicable by S. 29 in the ease of a suit, appeal or an application under the special law for which a period of limitation has been prescribed and this will cover an application under 8. 66 (2) and (3), income tax Act. In my judgment, technicalities apart, this will be the only reasonable way of giving effect to the intention of the legislature.

This is a pronouncement of high authority and so we have given the question anxious consideration but looking at it from any point of view we cannot see how one can get over the clear language of sub-s. (2) of e. 12.

The question, it seems to us, is not so much of liberally construing a. 29 (2) or s. 12 (2) , for however liberally one may construe those sections still the language of s. 12 (2)cannot be overlooked. Section 29 (2) in terms says that in the case of "any suit, appeal or application, the provisions contained in....sections 9 to 18 (which includes section 12)....shall apply...." and nothing more. Section 29 (2) does not say that s. 12 shall apply mutatis mutandis or with necessary modifications as the case may be but what the section says is that the ''provisions contained in'' s. 12 shall apply. These words are plenary. The expression ''provisions contained in'' indicates that one cannot go beyond contents of s. 12. Therefore, we cannot see how any modification of the provision of s. 12 can be made and applied even by the most liberal construction thereof. A proceeding must fall within the ambit of the three classes mentioned in s. 12 (2) before it can apply. The key words of sub s (2) of s. 29 are " the provisions contained in....sections 9 to 18 shall apply..." and we would not be applying s. 12 (2) if we were to apply it to a class of proceeding to which it can never apply. The argument advanced, therefore, cannot be sustained.

We are considerably relieved moreover to find that the decision in the Patna case has been expressly dissented from in other Courts. It was expressly dissented from in AIR 1955 113 (Nagpur) In para. 13 the Division Bench observed:

In Mohanlal v. Commr., income tax, which followed. Dropadi v. Hira Lal, ILR (1912) All. 496,F.B. it is not anywhere stated how an application for reference fell within the terms of S. 12 (2) , Limitation Act. Their Lordships pointed out that since 8. 29 (2) made S. 12 applicable to special or local laws for determining the period of limitation prescribed by such law for any suit, appeal or application, it was reasonable to hold that S. 12 was applicable to applications under the old Section 66(2) and (3). With all respect, we do not agree with this interpretation of S. 12. An application for reference or for mandamus to require the tribunal to make a reference cannot be regarded as an application for review without placing an unwarranted construction on these words.

We are in respectful agreement with this view. We may also point out incidentally that the Patna case relied upon the Full Bench decision of the Allahabad High Court in Dropadi v Hira Lai ILR (1912) 34 All. 496, F.B. but that decision of the Allahabad High Court itself was distinguished on the ground that it was a decision prior to the amendment of s. 29 of the Limitation Act by a Fall Bench of five Judges of the same High Court. The Full Bench ruled that:

The words '' any suit, appeal or application '' in S. 29, Limitation Act, are not meant for the purpose of enlarging the scope of sub-s. (2) of S. 12, Limitation Act, but merely for the purpose of describing the nature of proceedings to which SB. 4, 9 to 18 and 22 are to be applied, provided they happen to be applicable.

The Full Bench expressly dissented from the Patna view ( Gopaldas Sarvadayal Vs. Commissioner of Sales Tax, U.P., ), overruled their own decision in A. S. Mill Co. v. Sales Tax Commr. AIR 1932 All. 816 and on the other hand confirmed the decision of the Allahabad High Court in Kashi Parshad Vs. Notified Area . No doubt Kashi Parshad v. Notified Area, Muhoba was a decision of a single Judge of that Court but it decided the precise point which arises before us. There too an application under s. 18 was barred by time and it was sought to get over the bar by urging that the time taken for obtaining a copy of the award should be excluded. It was held that the only applications to which s. 12(2) of the Limitation Act refers are applications for review of judgment and, therefore, s, 29(2) (a) cannot extend the operation of s. 12(2) to an application under s. 18 of the Land Acquisition Act. Therefore, the time requisite for obtaining copies cannot be excluded in computing the period of limitation for an application under s. 18 of the Land Acquisition Act.

In this Court also a learned single Judge has taken a similar view ( Jankibai Tukaram Vs. Nagpur Improvement Trust, Nagpur, ). It seems to us clear, therefore, upon the terms of s. 12(2) read with s. 29(2) as well as upon the several authorities to which we have referred that the petitioner cannot claim exclusion of the time requisite for obtaining a copy of the award while making an application under s. 18 of the Land Acquisition Act even though he actually did obtain a dopy of the award and file it.

Next, reliance was placed on a. 12(4) of the Limitation Act. Subsection (4) of B. 12 says-

In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

The section does not use the words " application to set aside an award" in any technical sense e.g. in the Arbitration Act. The words are not used only with reference to the remedy given under the Arbitration Act for setting aside an award. We will, therefore, assume that the expression may also apply to other applications for setting aside an award, if such applications can be made under any law. The question here is whether the application in the instant case can possibly be called an application to set aside an award. Under s. 18(2) of the Land Acquisition Act the grounds upon which the application has to be made have to be stated and what those grounds were in the present case have been mentioned by the petitioner himself, in para. 6 of his petition. None of those grounds are grounds which support a prayer that the award should be set aside. On the other hand they are all grounds directed to securing for the petitioner a higher amount of compensation and the grievance made in the application was also that the amount of the compensation was too low. Such an application under s. 18 cannot possibly be called an application for setting aside an award.

Apart from that we may also point out that under s. 18 the grounds upon which an application can be moved are mentioned. In this respect s. 18(1) has to be read along with s. 11 of the Land Acquisition Act. It is clear that the two provisions go together. Section 11 prescribes what the Collector''s award has to contain and the contents of the award are indicated as follows :

(i) the true area of the land:

(ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation.

These are the subjects which have to be decided upon in making an award. Now s. 18(1) after conferring the right to make an application for a reference says:

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.

It will be noticed at once that these grounds relate back to the subjects which are mentioned in s. 11 as subjects on which the Collector has to give his award. It is clear, therefore, that the scope of the application under s. 18(1) is crystallised by the possible grounds upon which it can be preferred. Having regard to those grounds, it seems to us impossible to hold that the application under s 18(1) could be an application to set aside an award.

But then it has been urged by Mr. Bane on behalf of the petitioner that if the Collector refuses any part of the compensation or apportions the compensation to any person other than the applicant, then to that extent the application under s. 18 must be held to contain a prayer to set aside such refusal of relief to the applicant. The argument in short is that for every relief that the Collector grants which is less than what an applicant asks for there is some relief which is denied and to that extent, when the applicant applies for a reference in respect of the relief which is denied, he is claiming to set aside the award. The argument, in our opinion, is fallacious. The fallacy lies in this that it supposes that any relief which is denied constitutes the award, or part of the award. In our opinion what is granted may constitute an award but what is not granted can hardly partake of the nature of an award. Therefore, an application to make a reference cannot be held to be an application to set aside an award.

Reliance was further placed upon an early decision of this Court in In re Land Acquisition Act (1905) 7 Bom. L.R. 697 where at page 708 Chandavarkar J., in discussing the question of limitation observed:

...Further, section 12 of the Limitation Act para. 4 which alone can possibly apply, speaks of a copy of the award-not of the Collector''s judgment-and the claimants here had a copy of it in the Collector''s notice of the 23rd of September.

The learned Judge did not say that s. 12(4) applied. It was while discussing another point that the learned Judge in passing used the words "section 12 of the Limitation Act para. 4 which alone can possibly apply." He was considering s. 12(4) on the assumption that it applied. That cannot be a decision that s. 12(4) applied. In this respect we are in agreement with the decision of a single Judge of this Court in Jankibai v. Nagpur Improvement Trust. When the decision in Burjorjee v. Special Collector, Rangoon AIR 1926 Ran 135, was referred to, Mr. Justice Raju observed (p. 633) :

...With great respect, I dissent from this view because sub-s. (4) of s 12 refers to applications to set aside an award such as an award in arbitration proceedings and an application for reference under s. 18 of the Land Acquisition Act can never be treated as an application to set aside an award. Even if the reference is accepted the award may be only modified. An application for reference under s. 18 of the Act cannot, therefore, be treated as an application to set aside an award.

In our opinion, neither s. 12 (2) nor s. 12 (4) of the Limitation Act is attracted in the instant case nor does s. 29 (2) assist the petitioner in urging that provision analogous to s. 12 (2) should apply. In our opinion the decision reached by the Land Acquisition Officer was correct and the application under s. 18 of the Land Acquisition Act of the petitioner was rightly held barred by nine days. The petition is, therefore, dismissed.

There remains the question of costs. No doubt upon objection by the respondents, the application of the petitioner under s. 18 has been thrown out on the ground that it was barred by nine days and the objection has been upheld by us having regard to the state of the law. While we are giving effect to the strict letter of the law we do feel that the respondents should not have opposed the application only on the ground, viz. that it was barred by nine days. Having regard to the circumstances here the objection is highly technical and since the petitioner''s lands are being taken under the compulsory provisions of the Land Acquisition Act, if he is fairly entitled to higher compensation, we think that the respondents should with propriety have allowed him to agitate that matter in the present case. We are also informed that in a similar connected case Government waived its objection to limitation. Under these circumstances, we think that success on a technical objection like this does not merit the award of costs. There shall, therefore, be no order as to costs.