Santokh Singh and Another vs State of H.P. and Another

Kamlesh Sharma, J.—This appeal u/s 54 of the Land Acquisition Act, 1894 (hereinafter called the Act) is against the order/award dated 6-11-1982 whereby District Judge, Solan and Sirmaur Districts at Nahan has dismissed the reference application u/s 18 of the Act filed by the Appellants-claimants on the ground that it was barred by limitation. The application u/s 5 of the Limitation Act, 1963 (hereinafter called the Limitation Act) for condonation of delay has also been dismissed as not maintainable on the ground that the Limitation Act does not apply to the proceedings u/s 18 of the Act.

The brief facts are that for the construction of a ropeway for Cement Corporation of India Ltd., Rajban, 5 Bighas 10 Biswas land situated in village Rajban, Tehsil Paonta Sahib, District Sirmaur belonging to the Appellants-claimants was acquired vide Notification dated 6-2-1976 issued u/s 4 of the Act. Further Notification under Sections 6 and 7 of the Act was also issued on 29-10-1976. After holding proceedings u/s 9 of the Act the Land Acquisition Collector gave his award on 31-8-1977 awarding compensation at the rate of Rs. 3,008 per Bigha.

Being aggrieved, the Appellants-claimants filed application u/s 18 of the Act before the Land Acquisition Collector in the year 1980, which was referred to the Court of the District Judge, where it was registered as Land Reference No. 10-N/4 of 1981. The Respondents contested the reference on merits as well as on law point of limitation. In view of the objections of the Respondents, one of the issues framed by the District Judge was that, ''Whether the reference application made by the applicant is time barred?" However, the Appellants-claimants during the pendency of reference filed an application u/s 5 of the Limitation Act for condonation of delay in filing the reference application on 27-7-1982, which was also opposed by the Respondents and following additional issues were framed:

Whether there are sufficient grounds for condonation of delay in filing the reference petition, as alleged?

Relief.

In their application u/s 5 of the Limitation Act, sufficient cause for delay in filing the application u/s 18 of the Act was that in the second week of September 1977 the applicants approached their counsel Shri S.S. Gill, Advocate, Nahan for filing reference application and on his advice applied for obtaining certified copy of the award of the Land Acquisition Collector on 14-9-1977, which was made available to them on 20-6-1980 and thereafter reference was filed on 24 6-1980. It is also stated that they had acted bona fide on the advice of their counsel that copy of the award was necessary for drafting reference application and the time taken in obtaining it would not be counted for the purpose of period of limitation. The application u/s 5 of the Limitation Act was supported by the affidavits of Appellant-claimant Santokh Singh and their counsel Shri S.S. Gill, Advocate, Nahan To their wisdom, the Counsel for the parties gave statements on 4-6-1982 that they did not want to produce any oral evidence and the District Judge decided the application by the impugned order dated 6-11-1982 holding that it is not maintainable. For his findings that Section 5 of the Limitation Act does not apply to the proceedings u/s 18 of the Act, the District Judge has placed reliance on a judgment of this Court in Jamita Ram and Ors. v. Collector of Kangra District AIR 1982 H.P. 53, which we will discuss in the later part of this judgment.

We have heard learned Counsel for the parties and gone through the record The first submission made by Shri Kapil Dev Sood, learned Counsel for the Appellants-claimants, is that the District Judge was not right in relying upon the case of Jamita Ram for holding that Section 5 of the Limitation Act does not apply to the proceedings u/s 18 of the Act as it was not directly in issue in the said case, though the learned Judge has made observations in this regard. According to Shri Sood, the question whether Section 5 of the Limitation Act is applicable to the proceedings u/s 18 of the Act is a wider question which is required to be examined in the context of Section 29(2) of the Limitation Act, Section 18(3) of the Act which was added to the Central Act by State amendment and Section 28A of the Act. Shri Sood has urged that Section 29(2)(b) of the Limitation Act provides for the applicability of Sections 4 - 24 of the Limitation Act which includes Section 5, for the purpose of determination of the period of limitation prescribed for any suit, appeal or application by any special or local law, unless it is expressly prohibited, which is not there in the Act. As such, by virtue of Section 29(2) of the Limitation Act, Section 5 thereof was applicable and the District Judge was not right to dismiss the application on this ground.

Shri Sood has also submitted that had the District Judge held the application u/s 5 of the Limitation Act maintainable and considered the sufficient cause made out in the application, which was supported by the affidavits of one of the Appellants-claimants Santokh Singh and their counsel Shri S.S. Gill, he would have condoned the delay. For his submission that mere presence of the Appellants-claimants at the time of announcement of award was not enough, as for filing application u/s 18 of the Act, they were required to know the essential contents of the award which consist of reasons or the basis for fixing the compensation for which they had applied for the certified copy of the award on the advice of their counsel Shri S.S. Gill, Advocate, Shri Sood has relied upon the judgments in Mangilal Jawanmal and Others Vs. The Special Land Acquisition Officer (I), Thana, and Birarat Chand Dilwali v. Union of India and Ors. 1978 ACC 273 . He has also referred to judgment of Supreme Court in The Commissioner of Sales Tax, U.P. Vs. Madan Lal Das and Sons, Bareilly, to make a point that time requisite for obtaining copy of the award was required to be excluded as provided u/s 12(2) of the Limitation Act, even if the certified copy of the award was not required to be filed alongwith application u/s 18 of the Act.

On the other hand, Pt. Om Parkash learned Additional Advocate General has supported the impugned order/award of the District Judge and has urged that Section 5 of the Limitation Act is not applicable to the proceedings u/s 18 of the Act either before the Land Acquisition Collector or the District Judge.

After giving our beat consideration to the submissions made by the learned Counsel for the parties, we find that in the case of Jamita Ram the direct question posed before the learned Judge was that, "Whether a Court to whom a reference u/s 18 of the Land Acquisition Act has been made can go behind the reference and decide whether the application has been made beyond the period of limitation?" The learned Judge relying upon the judgment of the Supreme Court in Mohammed Hasnuddin Vs. State of Maharashtra, held that while exercising jurisdiction of the Court u/s 18 of the Act, it is the duty of the Court tcf satisfy itself whether the reference is proper as provided under Sub-section (2) of Section 18 of the Act, which lays down that (a) the application must state the grounds of the objection on which the application is opposed; and (b) the application should be made within the time laid down in the proviso to the sub-section. In respect of the jurisdiction of the Court u/s 18 of the Act, the following observations of the Supreme Court in Mohammed Hasnuddin''s case in para 26 are relevant:

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 u/s 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference....

And in para 28:

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 reference depends on a proper reference being made u/s 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 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.

Further in para 29:

In deciding the question of jurisdiction in a case of reference u/s 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 reference.

Referring to Sub-section (2) of Section 18 of the Act, which added by the State amendment, the learned Judge in Jamita Ram''s case has further held:

Where the matter has been taken to the High Court and a finding has been given about the validity of a reference, the Court will be bound by this decision and will have no right to redecide the question. But where the reference has not been so tested by the High Court it will be open to the Court dealing with the reference to decide about the validity of the reference.

Later, in paragraph 13 of the judgment, the learned Judge has also observed that where a person is non-suited on the ground of limitation, an adequate opportunity should be granted to him to show that the reference is within limitation. However, in paragraph 16 it is stated:

Since the provisions of Section 5 of the Limitation Act do not apply to these proceedings, there was no opportunity to the Petitioners to explain the delay, which is normally the case in all civil litigations.

The learned Judge further recommended that:

Keeping in view the fact that the Petitioners are illiterate villagers whose lands had been acquired for the benefit of the nation, in my opinion, the State should ensure that they get the same compensation which has been granted to other claimants of the Tika where their lands were situated.

After examining the judgment in Jamita Ram''s case we have no hesitation to uphold the contention of Shri Sood that it is not of much assistance to decide the question whether Section 5 of the Limitation Act applies to the proceedings u/s 18 of the Act.

For deciding whether Section 5 of the Limitation Act applies to the proceedings u/s 18 of the Act, first of all we have to refer to Section 29(2) of the Limitation Act It is:

Savings.- (1) ...

(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 deter mining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 - 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

Interpreting Section 29(2) of the Limitation Act, the learned Judges of the Supreme Court in Mangu Ram Vs. Municipal Corporation of Delhi, held that:

There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, Sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908 Section 29, Sub-section (2), Clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 - 18 and 22, shall not apply and, therefore, the applicability of Section 5 was in clear and specific terms excluded Section 29, Sub-section (2) of the Limitation Act, 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 -24, which would include Section 5, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Section 29, Sub-section (2), Clause (b) of the Indian Limitation Act, 1908 specifically excluded the applicability of Section 5, while Section 29, Sub-section (2) of the Limitation Act, 1963 in clear and unambiguous terms provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani''s case can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, Sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced.

From the decision of the Supreme Court in above noted case of Mangu Ram, it is clear that the Courts have discretion to condone the delay by invoking Sections 4 - 24 including Section 5 of the Limitation Act even under special laws or local laws unless they are expressly prohibited from doing so by special or local laws. Reference to Section 18 of the Act will make it clear that there is nothing which expressly prohibits the operation of Section 5 of the Limitation Act Section 18 of the Act prescribes the time limit within which the application seeking reference has to be filed by a person interested. Therefore, prima facie the conclusion is that by virtue of Section 29(2) of the Limitation Act, Section 5 thereof applies to the proceedings u/s 18 of the Act.

Looking to the language of Section 5 of the Limitation Act, a question arises whether or not Section 5 of the Limitation Act can be pressed into service in proceedings u/s 18 of the Act before the Land Acquisition Collector, as he is only a statutory authority and not the Court. The answer will be in negative in view of the judgment of the Supreme Court in Sakuru Vs. Tanaji, wherein it is held that, "The provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure."

Despite the judgment in Sakuru''s case the Supreme Court is yet to decide the question of applicability of Section 5 of the Limitation Act to the proceedings u/s 18 of the Act in the context of Section 29(2) of the Limitation Act as well as 28A of the Act. So far as the High Courts are concerned, there are divergent views, may be due to State amendments to Section 18 of the Act, as in the case of our State by adding Sub-section (3) to Section 18 of the Act it is provided:

(3) Any order made by the Collector or 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.

In view of this provision the order of the Collector in respect of reference application u/s 18 of the Act including the order refusing reference to the Court on the ground of limitation or making reference of time barred application is revisable 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. Therefore, it can be said that for the purpose of dealing with the application u/s 18 of the Act, the Land Acquisition Collector is a Court and Section 5 of the Limitation Act applies to it and in all those decisions holding that Section 5 of the Limitation Act does not apply to the proceedings u/s 18 of the Act because it is only a statutory authority, the question was not examined in the context of the provisions like Sub-section (3) of Section 18 of the Act. Further, the question needs to be examined in view of assertion of Section 28A in the Act by giving harmonious construction to the Scheme of the Act. Section 28A of the Act is:

28A. Re-determination of the amount of compensation on the basis of the award of the Court -(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector u/s 11, the persons interested in all the other land covered by the same notification u/s 4, Sub-section (1) and who are also aggrieved by the award of the Collector, may, notwithstanding that they bad not made an application to the Collector u/s 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court:

Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

(2) The Collector shall, on receipt of an application under Sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

(3) Any person who has not accepted the award under Sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 - 28 shall, so far as may be, apply to such reference as they apply to a reference u/s 18.

The reasons which prompted the Legislature to insert Section 28A can be gathered from the Statement of Objects and Reasons to the Amending Bill, Para (ix) of which reads:

Considering that the right of reference to the Civil Court u/s 18 of the Act is not usually taken advantage of by inarticulate and poor people and usually exercised only by the comparatively affluent land owners and that this causes considerable inequity in the payment of compensation for the same or similar quality of land to different interested parties, it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek redetermination of compensation, once any one of them has obtained orders for payment of higher compensation from the reference Court u/s 18 of the Act.

The intention of the Legislature in incorporating Section 28A in the Act has been explained by the Delhi High Court in Ram Mohan v. Union of India AIR 1987 Delhi 130, in the following terms:

The intention of the Legislature in inserting the new provision after Section 28 of the Act as Section 28A which come into force with effect from September 28, 1984 is to give equal compensation to all persons whose lands had been compulsorily acquired by the Government under the same award and same notification u/s 4(1) of the Act The purpose is to remove the anomolies in determination of the compensation by the Collector and the Court in the same cases, that is, to remove inequality in payment of compensation for the same or similar quality of land of different interested persons.

In view of the intention of Section 28A of the Act, it would be absurd to say that Section 5 of the Limitation Act is not applicable, which would amount to denial of a valuable right to a more prudent and cautious claimant, who due to sufficient and bona fide cause is prevented from seeking reference within the statutory limitation period, whereas, a person who sleeps over till the court award is passed and then approaches u/s 28A to reap the benefit that has enured in his favour. It is also in the interest of Government exchequer to condone the delay in filing the reference petition by invoking Section 5 of the Limitation Act and determine the award by Civil Court rather than allowing a person to approach u/s 28A of the Act after allowing the period which would burden the exchequer with substantial amount of award. Above all, if for the purpose of Section 28A of the Act the person interested being not a party before the Court can always plead lack of knowledge and apply beyond the statutory period of three months and the expression ''date of the award'' is construed liberally to mean as ''from the date of knowledge of award'' either actual or constructive, it would be unfair'', arbitrary and discriminating not to apply the same principles to those who intend to file reference u/s 18 of the Act by invoking the relevant provisions of the Limitation Act including Sections 5 and 12 thereof. Only such interpretation would help in achieving the intention of the Legislature, which is stated by the learned Judges of the Allahabad High Court in Sukhdeo and others, Vs. State of U.P. and others, in the following words:

The purpose is that a person should get a fair and just compensation for his property of which he is being deprived. It is trite law that, if permissible, a remedial statute should be liberally construed in favour of the person for whose benefit such a statute has been enforced. The effect of the court should therefore, be to "suppress the mischief and advance the remedy.

In view of the above discussion, we have no hesitation to hold that for the purpose of dealing with reference application u/s 18 of the Act, the Land Acquisition Collector is a Court and Section 5 of the Limitation Act will apply to the proceedings before him u/s 18 of the Act. In the time barred reference the Land Acquisition Collector is required to give an opportunity to the claimant to show that his reference petition is within limitation, which is possible if his application u/s 5 of the Limitation Act is considered and decided in accordance with law, against which decision revision lies to this Court under Sub-section (3) of Section 18 of the Act. The order/judgment passed in the revision is final and binding on the District Judge. However, if the Land Acquisition Collector makes a time barred reference, the District Judge is within his jurisdiction to decide whether the reference is beyond the period of limitation prescribed by proviso to Sub-section (2) of Section 18 of the Act, which he can do by giving opportunity to the claimant to show sufficient cause for delay by deciding his application u/s 5 of the Limitation Act, if filed.

Therefore, our conclusion is that Section 5 of the Limitation Act applies to proceedings u/s 18 of the Act before the Land Acquisition Collector as well as the District Judge. By arriving at this conclusion, we may further hold that the District Judge was not right in dismissing the application of the Appellants claimants as not maintainable, hence we set aside his order/award dated 6-11-1982 and remand the reference petition to him for decision afresh in accordance with law after deciding the application u/s 5 of the Limitation Act filed by the Appellants-claimants for condonation of delay in filing the reference application.

20 . In view of our remand order, we need not refer to the case law cited by Shri Sood, learned Counsel for the Appellants-claimants in support of their application u/s 5 of the Limitation Act.

In the result, this appeal is accepted in the light of above observations. No costs.