Madras High Court
Arumugham vs T.L. Radhakrishnan And Anr. on 5 August, 1996
Equivalent citations: (1996)2MLJ639, 1997 A I H C 266, (1997) 1 CIVLJ 788, (1996) 2 MAD LJ 639, (1996) 2 MAD LW 593
ORDER Jagadeesan, J.
1. The Court made the following ORDER: The petitioner entered into an agreement to purchase the lands of the first respondent herein. Before over the sale transaction is completed, the lands were acquired by the Government. The petitioner on coming to know of the acquisition proceeding, filed claim petition before the second respondent. The second respondent, after passing the award, referred the matter to Sub-Court, Chengleput, under Section 31 (2) of the Land Acquisition Act.
2. In the said L.A.O.P. proceedings the petitioner was set ex pane on 11.8.1994 and on the same date an ex parte order was passed by the lower court, stating that the first respondent in these revisions is entitled to the entire compensation. In all the L.A.O.Ps. the petitioner filed applications for setting aside the ex pane decree and since there was delay in filing the applications, he also filed applications for condoning the delay of 170 days in filing the petitions for setting aside the ex parte decree. The petitions for condonation of delay had been filed under Section 5 of the Limitation Act. The lower court, before numbering the petitions, at the S.R. stage, had rejected all the applications for condonation of delay on the ground that Section 5 of the Limitation Act had no application to Land Acquisition proceedings and as such the applications filed by the petitioner for condoning the delay are not maintainable in the eye of law. The present revisions have been filed against the orders of the lower court, rejecting the applications filed under Section 5 of the Limitation Act.
3. The learned Counsel for the petitioner contended that since the proceedings are pending before the civil court, Section 5 of the Limitation Act will be applicable to the proceedings. As per Section 53 of the Land Acquisition Act, the provisions of Code of Civil Procedure are made applicable to all the proceedings before the court under the Land Acquisition Act. Hence, equally Section 5 of the Limitation Act is also applicable to the proceedings before the court.
4. Per contra, Mr. R. Gandhi, the learned senior counsel contended that the petitioner is only an agreement holder and as such he has no locus standi to seek for any reference under Section 30 or 31 of the Land Acquisition Act. Hence, the reference itself is bad. Once the reference itself is bad, there is no necessity for the court to further proceed the matter. Further under the Land Acquisition Act, the courts are discharging their functions as tribunals or quasi-judicial authority and as such Section 5 of the Limitation Act cannot be made applicable to the Land Acquisition proceeding before the court.
5. In support of the contention of the counsel for the petitioner, he referred to the judgment reported in Ramesh S. Wankhede v. State . In this case, the learned Judge held that the Land Acquisition Officer is dealing with the applications for reference under Section 18 as a 'Court' governed by the provisions of Code of Civil Procedure, even though while dealing with the matter of compensation, he may not be a 'court' governed by the provisions of C.P.C. The counsel for the petitioner failed to note that this judgment had been overruled by a Division Bench of Bombay High Court which was reported in P. V. Gadgil v. RY. Deshpande , wherein it has been held as follows:
Considering the language of Sub-section (3) introduced by Maharashtra Amendment in Section 18, Land Acquisition Act, we see merely an intention on the part of the legislature to provide a remedy of revisional application to the High Court against any order passed by the Collector in the discharge of his statutory duty under Sub-section (1) and we are also of the opinion that while the Collector so discharges his statutory duty he is not a court under the Civil P.C., attracting the provisions of the Limitation Act. The view taken in Ramesh Wankhedo's case is, therefore, overruled.
6. Yet another judgment relied upon by the learned Counsel for the petitioner is the Full Bench judgment of the Delhi High Court reported in Ram Piari v. Union of India , in which it has been held as follows:
This brings us to the merits in the two revision petitions. In Civil Revn. No. 271 of 1972 claimant Smt. Sarjo was stated to have died on 8th April, 1971. Application under Order 22, Rule 3 was made on 12th October, 1971, i.e., after more than 90 days of the death of Smt. Sarja. No ground having been alleged as noted by the learned Additional District Judge, Delhi for condoning the delay in not filing the said application with the period of 90 days which in fact was filed late by about 95 days, was rightly rejected by the court having not been made within time. According to Sub-rule (2) of Rule 9 of Order 22 abatement could be set aside if the legal representatives of Smt. Sarjo had proved that they were prevented by sufficient cause from continuing the suit. That having not been done, mere filing of the application would not per se entitle the legal representatives to an automatic order of setting aside the abatement.
In this case the learned Judges have dealt with an application to bring the legal representatives of the deceased claimant beyond the period prescribed under Order 22, Rule 3, C.P.C. without any application for condonation of delay. The learned Judges had dismissed the application on the ground that there is no sufficient cause for filing the application beyond the period prescribed under Order 22, C.P.C. There is nothing in the judgment to show that the application under Section 5 had been filed to condone the delay and the learned Judges have dealt with the question of applicability of Section 5 of the Limitation Act. Hence, this judgment is of no help to the petitioner. 7. Another judgment relied upon by the counsel for the petition is reported in Pokhar Singh v. State A.I.R. 1980 P. & H. 329, in which the learned Judge has observed as follows:
The learned Additional Advocate General, Haryana, has urged that there would have been merit in the contention of the learned Counsel for the claimant provided Section 5 of the Limitation Act was applicable. According to him, Section 5 of the Limitation Act is applicable only to the proceedings before a court. The court of District Judge and the Additional District Judge is not a Court within the meaning of the Land Acquisition Act and is a special tribunal and, therefore, the Limitation Act, could not apply to it, I am not impressed with this argument. The Land Acquisition Act itself had defined "Court" in Section 3-D to mean as Principal Civil Court of original jurisdiction unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform the functions of the court under this Act. In the present case, the District Court and all Additional District Judges have been empowered to function as court within the meaning of the Act, and therefore, they are courts and not special tribunals, as urged by the learned Additional Advocate General. Therefore, on this reasoning alone. Section 5 of the Limitation Act would be applicable.
Even if it is assumed for the sake of argument that the District Judges and the Additional District Judges deciding reference applications under Section 18 of the Act are special judicial officers or special tribunals, the Section 5 of the Limitation Act would be applicable by virtue of Section 29(2) thereof. The stand of the learned Additional Advocate General is that by virtue of Section 29(2) of the Limitation Act, the provisions of Sections 4 to 24 can be extended only to courts created under special law. I do not find any merit in this argument either. The Supreme Court in Commissioner of Sales Tax, U.P. v. P.V. Madan Lal , has held that the U.P. Sales Tax Act is a special law within the meaning of Section 29(2) of the Limitation Act and Sections 4 to 24 of the Limitation Act would apply to the various proceedings before the appellate and revisional authorities created under the U.P. Sales Tax Act. A Full Bench of this Court has also taken the same view in Bharat Rubber and Allied Industries v. The State of Punjab Civil Writ Petition No. 3692 of 1977 by judgment dated 29th February, 1980. Accordingly, I hold that even if the judicial officers appointed to decide reference applications under Section 18 of the Act were special courts or tribunals, still Sections 4 to 24 of the Limitation Act would apply to proceedings before them and, therefore Section 5 did apply to the present case.
The learned Judge has observed as stated above, while deciding an issue as to whether the reference under Section 18 of the Land Acquisition Act made by the claimant is barred by limitation. Hence, the above observation can be taken as a general principal but not with regard to the deciding of the question, with regard to the applicability of the provision of Section 5 of the Limitation Act before the Land Acquisition Officer. The learned Judge has held as follows:
A reading of Section 5 of the Limitation Act shows that any application may be admitted after the prescribed period if the application satisfies the concerned authority that he had sufficient cause for not making the application within such period. Therefore, one the Land Acquisition Collector has referred the matter to the District Court after stating therein that the application was within limitation, it must be assumed that he condoned the delay. This part of the matter was not challenged by the State before the Additional District Judge and I do not permit the State counsel to raise this matter for the first time before this Court. However, if in a given case, the condonation of delay is objected to by the State on the ground that it was an irrelevant or extraneous considerations and is able to bring material on record, it will be open to the District Court to go into the same and find out whether the exercise of discretion by the Land Acquisition Collector in condoning the delay was reasonable or not.
Here the learned Judge has held that since no objection has been taken by the respondents before the Land Acquisition Officer it is not open to them to challenge the same before the court. This judgment may be helpful to the petitioner only with regard to the general observations made by the learned Judge that once the matter has been referred to the civil court, the Judicial Officers though are functioning under the Land Acquisition Act are still deemed to be civil court.
8. The another judgment relied upon by the counsel for the petitioner is reported in Bhikhubhai v. State A.I.R. 1989 Guj. 8, in which the Division Bench relying upon the earlier judgment of the same court held that Section 5 of the Limitation Act is applicable to the Land Acquisition Proceeding in seeking for a reference under Section 18 of the Land Acquisition Act before the Land Acquisition Officer. The learned Judges have held in the following terms:
In this connection, Mr. Majmudar, learned Counsel appearing for the petitioners, brought to our notice a decision of this Court in the case of Mohan Vasta v. State of Gujarat wherein it has been specifically held that Limitation Act and provisions contained in Sections 4 to 24 of the Limitation Act applies to an application for reference under Section 18 of the Land Acquisition Act. In view of this specific observation made by the Bench of our High Court, there cannot be any difficulty for the respondent 2 to condone the delay and refer the matter to the District Court under Section 18 of the Act.
9. In the judgment reported in G. Ramagowda v. Special Land Acquisition Officer, Bangalore , the Supreme Court had an occasion to deal with the order of the High Court condoning the delay in filing the appeal against the judgment enhancing the compensation. Since the Supreme Court upheld the order of the High Court condoning the delay in filing the appeal, the counsel for the petitioner contended that Section 5 of the Limitation Act is applicable to the proceedings before the court.
10. The counsel for the respondent referred to a judgment reported in Sujan Singh v. Mohan Chand , in which it has been held as follows:
Thus, If it is once held that the agreement to sell, itself, does not create any interest over the property in dispute, then the plaintiff cannot be held to be entitled to the compensation awarded by the Collector with respect to the suit property. The question of payment of compensation to the plaintiff would have arisen only if, by an agreement of sale, any charge was created on the suit property. The plaintiff's right in the suit property, if any, will arise only after the execution of the sale deed in his favour. If, on account of certain eventualities, the agreement as such could not be legally enforced as having become impossible of its performance, then the question of allowing any compensation awarded with respect to the suit property, does not arise on that basis.
[Italics supplied] On the basis of this judgment, the counsel for the respondent contended that since the petitioner does not have any right in the property, he cannot be deemed to be an interested person and as such the reference itself is bad.
11. Another judgment reported in Raman Filial v. Special Land Acquisition Collector, Quilon , in which after referring to various judgments, the learned Judges have held as follows:
We hold that Section 5, Limitation Act does not apply to an application for reference under Section 20, Land Acquisition Act and that the 1st respondent was right in passing the order of Ex.P-3. The original petition therefore fails.
Since this case relates to the matter before the Land Acquisition Officer and not before the court, the principle cannot be applicable to the facts of the present case.
12. In the judgment reported in Dhani Devi v. Collector, Land Acquisition, Talwara , the matter relates to bringing of legal representatives before the court in a reference under Section 18 of the Land Acquisition Act, in which it has been held as follows:
It cannot be disputed that Section 53 of the Act makes only the provisions of the Code applicable to a limited extent, and that there is nothing in this Act to make the provisions of Limitation Act applicable. Indeed by no stretch of imagination can Limitation Act be made applicable to these proceedings when it has not been so made applicable by any provision in the Act.... We will not refer to each case individually. In Civil Revision No. 147 of 1980, the application under Order 22, Rule 3 was dismissed only on the ground that the application has not been made within time. While deciding it the learned trial court seems to have applied the principle of Limitation Act that each day's delay must be explained. This approach, in our opinion, was not justified--
In Civil Revision No. 51 of 1981 the petitioners had moved an application under Order 22, Rule 3 of the Code. Despite repeated adjournment for over two years they failed to produce any evidence to show that they were the legal representatives. On 3rd September, 1980 when the order was passed, though the Advocate of the petitioners was present, neither the petitioners nor their witnesses were produced. In these circumstances, the learned trial court closed the evidence under the provisions of Order 17, Rule 3 and dismissed the application. In our view the learned Judge was right in dismissing the application. Therefore, this revision has to be dismissed.
13. From the above extracted portions, it is clear that though the learned Judges have held that the Limitation Act is not applicable; but still the petition to bring the legal representatives of the deceased claimant ought to have been filed within a reasonable time and since that application has not been filed within a reasonable time, the lower court is right in dimissing the application.
14. In the judgment reported in Sakuru v. Tanaji , it has been held as follows:
After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiah's case, is perfectly correct and sound. It is well settled by the decision of this Court in Town Municipal Council, Thani v. Presiding Officer, Labour Court, Hubli , Nityananda M. Joshi v. Life Insurance Corporation of India and Sushila Devi v. Ramanandan Prasad , 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. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a court, the Limitation Act, as such, had no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. Hence, it becomes necessary to examine whether the Act contains any such provision entitling the Collector to invoke the provisions of Section 5 of the Limitation Act for condonation of the delay in the filing of the appeal.
15. In the judgment reported in A. Abbasbhai v. Punch Mahals A.I.R. 1967 Guj. 18, it has been held as follows:
Now in the first place it must be remembered that unless there is a statutory fiction deeming a reference to be a suit for the purpose of the Limitation Act, Article 176 cannot have any application to a reference. There is no such statutory fiction either in the Land Acquisition Act or in the Limitation Act. There is no doubt a statutory fiction created in Section 26(2) and by that Statutory fiction an award made on a reference is deemed to be a decree within the meaning of Section 2(2) of the Code of Civil Procedure. But that does not convert a reference into a suit; it does not fictionally make a reference into a suit. The statutory fiction is a limited one and it has merely the effect of converting an award which is not a decree into a decree for the purpose of Section 2(2) of the Code of Civil Procedure. As a matter of fact this statutory fiction clearly postulates that a reference is not a suit, for if it were a suit, the award would straightaway have been a decree and there would have been no need to enact the statutory fiction. Morever in that even it would not have been necessary to enact Section 53 for the purpose of making the provisions of the Code of Civil Procedure applicablt to a reference. Those provisions would have applied proprio vigore by reason of the reference being a suit. It is therefore, evident that a reference is neither a suit nor a deemed suit and Article 176 of the Limitation Act has, therefore, no application to it. If that Article does not apply, there is no other Article which can possibly be invoked on behalf of the Collector and it must be held that no time is limited by law for making of an application by the heirs of a deceased applicant for bringing themselves on record in the reference. Some reference was made to Article 181 which is a residuary article providing a period of limitation for an application for which no period is provide elsewhere in the first schedule, but this Article provides a period of three years and even if it were applicable, the application of the petitioners in the present case for bringing themselves on record as heirs of Abbasbhai would be within time. The learned civil Judge was, therefore, in error in holding that the reference had abated by reason of the petitioners having failed to make an application for bringing themselves on record within a period of ninety days from the date of death of Abbasbhai and in dismissing the reference as having abated, he refused to exercise jurisdiction to entertain jurisdiction to entertain the reference which was vested in him by law.
16. It is worthwhile to refer here the judgment reported in Kuppuswami v. Special Tahsildar (1967)1 M.L.J. 329, in which it has been held as follows:
On a review of the case-law on the subject, it seems to me that the expression "person interested does not require that a person must really have an interest in the land sought to be acquired. It is enough if he claims an interest in compensation, as distinguished from an interest in the property sought to be acquired. As long as a person claims an interest in the compensation, as distinguished from an interest in the property sought to be acquired. As long as a person claims" an interest in the compensation, he is a person interested within the meaning of the definition of that expression. Even if a person denies the claim of the landlord, he is a person interested. Equally, a person may be interested even though his title to the land is not admitted or his right to compensation is denied. A person, without having an interest in the land, may be a 'person interested' in the compensation money within the meaning of that expression. Thus in the instant case, here is a person who has entered into a valid registered agreement to purchase property from the original owners of the property. He has also paid a sum of Rs. 3,000 towards the sale price. He has also spent a considerable amount in improving the property. Certainly, when this property is acquired, he is also a person interested in the compensation amount. But this will not automatically create any right in the petitioner to claim compensation. He will have to establish that he is also a person interested along with other persons to claim compensation.
17. From the above judgments, it is clear that many of the High Courts have held that Section 5 of the Limitation Act is applicable even to the proceedings before the Land Acquisition Officer. Then some of the High Courts have held that Section 5 of the Limitation Act may not be applicable to the proceedings before the Land Acquisition Officer. The Supreme Court in the case reported in Sakuru v. Tanaji , has categorically held that Section 5 of the Limitation Act will be applicable to the proceedings before the court. There is no dispute that the Code of Civil Procedure is applicable to the proceedings before the court under the land acquisition proceedings. In such circumstances, it cannot be said that the presiding officers are discharging their functions as tribunal. They are discharging the functions as 'court'.
18. Moreover Section 29(2) of the Limitation Act makes it clear that wherever the special or local law prescribes the period of limitation and expressly exclude the operation of the Limitation Act, for such cases Sections 4 to 24 of the Limitation Act shall not be applicable.
19. Section 53 of the Land Acquisition Act makes it clear that the provisions of the Code of Civil Procedure shall apply to all the proceedings before the court under the said Act. Hence, the petition for setting aside the ex parte order is maintainable. But the special enactment does not prescribe any period of limitation for filing such application and there is no express exclusion of the operation of the Limitation Act for such proceedings under the said Act. Hence, I am of the opinion that Section 5 of the Limitation Act will be applicable to the present proceedings before the court. The lower court is not correct in dismissing the application on the ground that the Limitation Act is not applicable.
20. The next question to be considered is whether the petitioner is entitled to claim compensation so as to reopen the matter afresh. The case reported in Sujan Singh v. Mohan Chand , referred to above clearly lays down that an agreement holder has no right to claim compensation, since he has no interest in the land. Here also it is the admitted case that the petitioner is only an agreement holder. More than that he has no interest in the land. He may be entitled to get back the advance amount, which he has paid to the first respondent. For that, the remedy is only to file a suit and got the compensation amount attached. The petitioner cannot be said to be a person entitled for any compensation.
21. In the judgment reported in Kuppuswami v. Special Tahsildar (1967)1 M.L.J. 329, this Court has held that the agreement holder is a person interested as per Section 3(b) of the Land Acquisition Act. But even in this judgment the learned Judge has observed that merely because the petitioner is an agreement holder, he cannot be said to be a person interested, but he has to establish himself that he is entitled for the compensation amount. Only if the claimant, the agreement holder, establishes himself that he is entitled for the compensation amount, then only he can be considered to be a person interested in the land and he should be a necessary party either under Section 18 reference or under Section 31 reference. In that particular case, the learned Judge has found that the agreement holder had made certain developments in the land and as such he will be entitled for the compensation for such developments. Only on that basis, the learned Judge has held the agreement holder in that particular case is a person interested. But so far as the present case is concerned, there is nothing on record to show that the petitioner had been given possession of the land. In the absence of any such plea with regard to possession, the petitioner has to be considered only a mere agreement-holder and as such he is not entitled for any compensation. As the petitioner is not entitled for any compensation, it is unnecessary to remit the matter back to the trial court for further enquiry. Since the petitioner cannot be said to be an interested person, there is no need for the lower court to reopen the matter and on this ground the civil revision petitions are dismissed. However, there will be no order as to costs.