Madhya Pradesh High Court
Jujharsingh (Deceased) Through Lrs ... vs District Trade And Industries on 11 May, 2020
Equivalent citations: AIRONLINE 2020 MP 962
Author: Virender Singh
Bench: Virender Singh
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : Hon'ble Shri Justice Virender Singh
CR-670-2019 (MANGILAL Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00669/2019, (SITARAM Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00671/2019, (SARJUBAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00672/2019, ((MANOHAR Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00673/2019, (JAKIR Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00674/2019, (HARISINGH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00675/2019, (DEVISINGH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00679/2019, (KESU Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00680/2019, (LIYAKAT Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00681/2019, (RESHMABAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00682/2019, (SAJJANSINGH Vs DISTRICT TRADE AND INDUSTRIES & OTHERS)
CR/00683/2019, (BABULALJI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00684/2019, ((MANGLIYA Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00685/2019, (SARDAR Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00686/2019, ((SAYARABAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00687/2019, (MEHARBANSINGH Vs DISTRICT TRADE AND INDUST. & OTHERS)
CR/00688/2019,(TULSIBAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00689/2019, (SARDAR Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00690/2019, (KARANSINGH Vs DISTRICT TRADE AND INDUSTRIES & OTHERS)
CR/00691/2019, (KESHARSINGH Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00692/2019, (SUNDARBAI Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00693/2019, (PELAD Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00695/2019, ((JULESHA BEE Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00696/2019, (KALU (DEAD) Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00697/2019, (RAMESH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00698/2019, (INDERSINGH Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00699/2019, (RATANLAL Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00700/2019, (MEHARBANSINGH Vs DISTRICT TRADE & INDUSTRIES & ORS.)
CR/00701/2019, (RAISH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
2
CR/00702/2019, (AATMARAM Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00703/2019, (CHHATARSINGH Vs DISTRICT TRADE & INDUSTRIES & OTHERS)
CR/00707/2019, (JASWANTSINGH Vs DISTRICT TRADE AND INDUSTRIES )
CR/00708/2019, (DAULAT Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00709/2019, (HEERALAL Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00710/2019, (RUPSINGH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00711/2019, (RASHID Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00713/2019, (MEHARBANSINGH Vs DISTRICT TRADE & INDUSTRIES & OTHERS)
CR/00714/2019, (CHATRABAI Vs DISTRICT TRADE AND INDUSTRIES & OTHERS)
CR/00715/2019, (JUBAIDBAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00716/2019, (MOHAMMAD Vs DISTRICT TRADE AND INDUSTRIES)
CR/00717/2019, (SUBHADRABAI Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00718/2019, (JAGANNATH Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00719/2019, (BABLU Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00720/2019, (SHYAMUBAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00721/2019, (ANWAR Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00722/2019, (MEHMUD Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00723/2019, (ASHABAI Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00724/2019, (GAJRAJSINGH Vs DISTRICT TRADE & INDUSTRIES AND OTHERS)
CR/00725/2019, (RAMRATAN Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00730/2019, (MOHAN Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00731/2019, (KALU Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00732/2019, (KUMAN Vs DISTRICT TRADE AND INDUSTRIES AND OTHERS)
CR/00733/2019, (BANOBAI (DEAD) Vs DISTRICT TRADE & INDUSTRIES & OTHERS)
CR/00734/2019, (RAMCHANDRA (DEAD) Vs DISTRICT TRADE & INDUSTRIES )
CR/00735/2019, ((JUJHARSINGH (DEAD) Vs DISTRICT TRADE & INDUSTRIES)
Shri Manish Sankhala and Shri Santosh Purohit, learned
counsel for the petitioners.
Shri S. Mehta, learned GA for the State.
-x-x-x-x-x-x-x-x-x-x-x-
ORDER
3 (Passed on 11/05/2020)
1. Regard being had to the similitude of the facts and the questions involved; all these petitions have been heard analogously and are being decided by this common order.
2. For the sake of convenience; facts are being taken from petition number CR 670/2019.
3. Being aggrieved by order dated 08.07.2019 passed by the learned Vth Additional District Judge (ADJ), Ujjain in MCC No. 37/2019 and other connected matters; the petitioner has preferred this petition.
4. By the impugned order; the application filed by the petitioner under Section 14 of the Limitation Act, 1963 read with Section 151 of the CPC in the reference made by the Land Acquisition Officer (LAO) under Section 28A (3) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act, 1894) as well as the Reference are dismissed by the learned Reference Court. The learned Reference Court has dismissed the application as well as the Reference on the grounds that as required under Section 18(1) of the Act, 1894, the Collector has neither "inquired" into the matter nor has "determined the compensation" and the Reference Court has no jurisdiction to entertain such order and; and that the reference is barred by limitation, the delay cannot be condoned under Section 14 of the Limitation Act and the Court has no jurisdiction to decide a time barred Reference on merits.
5. The petitioner has preferred this petition on the grounds that the order of the learned Reference Court is illegal, contrary to the facts and circumstances of the case and the settled principles of law. The learned Reference Court has taken stringent view and has overlooked substantial right of the petitioner that in respect of the same notification and same acquisition proceedings, if some persons have been awarded enhanced compensation by the Reference Court earlier, then other persons are also entitled for the same enhanced compensation. Their claim for enhanced compensation cannot be dismissed on the ground 4 that it is barred by limitation or on the basis of any other such technical ground.
6. It is submitted that as per the provisions of Section 18(2) & 28A of the Act, 1894, limitation to file an application for reference starts from the date when the LAO (Respondent) issues notice under Section 12(2) of the Land Acquisition Act. Admittedly in the present case no notice was ever issued by the LAO/Respondent, hence the application of the appellant was not barred by limitation.
7. It is further submitted that the law is well settled that mere wrong labelling or mention of wrong law in the petition by the petitioner would not take away the right of the petitioner or the jurisdiction of the authority before whom such a petition is filed. In such circumstances, the competent authority is required to look into the real intention of the claimant/applicant and decide the matter accordingly. Reliance has been placed on Bhanwal Lal v State of MP & Ors reported in 2009 (1) MPLJ 550.
8. It is also contended that while deciding the reference in question, the learned Reference Court has erred in not considering the facts that the petitioner is poor rustic illiterate villager, having no knowledge of the law or is not aware of procedural requirements prescribed by the law or more particularly the provisions of the Limitation Act or the Land Acquisition Act.
9. The learned counsel for the petitioner urged that in the present case, the other land owners have been granted enhanced compensation in respect of the land acquired by the same notification for the same project; therefore, the petitioners are also entitled for equal compensation as is awarded to such land owners and their claim cannot be dismissed merely on the technical grounds. Therefore, it is prayed that the impugned order be set aside and the petitioner be granted enhanced compensation as granted to the other identically placed land owners.
10. It is also argued that notice required under Section 12 (2) of the 5 Act, 1894 was never issued or served to the petitioner, therefore, the limitation to file application for making reference does not start and in such case, the limitation is 6 months from the date of knowledge of the award.
11. It is further submitted that due to bona fide mistake, the petitioner directly approached the Civil Court against the award passed by the LAO and upon realization of the mistake; he withdrew the petition and filed it before the LAO, who referred it to the Court. As per the provisions of Section 14 of the Limitation Act, in computing the period of limitation, the time spent in prosecuting the cause in the Civil Court shall be excluded from the calculation of limitation prescribed by the law. For both these reasons, the order passed by the learned Reference Court is incorrect. The learned Reference Court failed to comprehend the law appropriately and to exercise the jurisdiction vested in it aptly. It had acted with material irregularity in the exercise of his jurisdiction. Therefore, it is prayed, that the order be set-aside and the Reference Court be directed to pass an appropriate order in accordance with the law.
12. The learned Counsel placed reliance on the order dated 24 th June 2015 rendered in 42/2015 by this Court, wherein, relying on the judgement of the Bombay High Court in Mangilal Jawanmal & others v. The Special Land Acquisition Officer (I) Thana reported in AIR 1978 Bombay 325 this Court allowed the petition for enhancement of the compensation filed by the tribes after 8 years of the award passed by the LAO. The order passed by this Court was later confirmed by the Hon'ble Supreme Court in SLP (C) Nos. 13417-13454/2016. Further reliance has been placed on Kunapureddy Rao v. Land Acquisition Officer 2015 (1) LACC 158 Andhra High Court, Waheed Patel by LRs v. Chief Engineer ID 2017 (1) LACC 555 Karnataka High Court, Munivenkat Appa v. Commissioner Banglore Development Authority LAWS (Kar) 2001-3-72, Jameel Ahmed v. State of MP 1999 (II) MPWN 156, State of UP v. Abdul Karim LAWS (ALL) 1963-2-4, 6 Union of India v. Hansoli Devi & Ors. (2002) 7 SCC 273, Bhikubhai Chhitubhai & Ors. v. State of Gujrat & Ors. LAWS (GJH) 1988-3-16. In all these matters the Courts have held that the illiterate rustic villagers should not be deprived of their legitimate rights only on the ground of limitation. Technicalities should not be allowed to cause obstruction in the way of rendering justice. The Courts should take judicial notice of the fact of illiteracy of the villagers and should adopt liberal approach to the cause of justice and to effectuate the intention of the Act. The substantive right of the applicants should not be allowed to be defeated on technical grounds by taking hyper-technical view of self imposed limitation.
13. In reply, the learned counsels for the Respondents have jointly submitted that the application under Section 28 A of the Act, 1894 for referral itself was preferred beyond limitation. As per the law settled by the Hon'ble Supreme Court in the case of Bhagwan Das v. State of Uttar Pradesh 2010 (3) MPLJ 251 : (2010)3 SCC 545 , the provisions of the Limitation Act do not apply to the proceedings under the Land Acquisition Act and the Court is not empowered to condone the delay or to extend the limitation in any proceeding under the Act. The principle of law that Ignorance of law has no relevance in law suits or in legal proceedings is no more res Integra. Therefore, the learned Reference Court has rightly dismissed the application of the petitioner. As no illegality is committed by the learned Reference Court, there is no scope for this Court to interfere with the impugned order. It is, therefore, requested to dismiss the petition.
14. It is further objected that the Reference Court has dismissed the petition on merits as well. The order passed by the Reference Court amounts to "Decree" and as per Section 54 of the Act, 1894 only appeal lies against such order; therefore, the revision preferred by the petitioner is not maintainable.
15. I have heard the arguements of the parties and have perused the record.
716. The impugned order passed by the learned Reference Court is in two parts. First part deals with the application filed for condonation of delay, while later part deals with the order of the LAO. On both the grounds, the 'Reference' was dismissed by the Court. The learned Reference Court has taken a view that the reference was barred by limitation and the delay cannot be condoned and that it has jurisdiction to entertain a reference only when LAO 'determines the compensation' after the 'inquiry' while in the case in hand, he (LAO) has neither 'enquired' into the matter nor has 'determined the compensation', therefore, the reference made by him is not maintainable before the Court.
17. First, I would consider the question of limitation as it goes to the roots of the controversy. There is no dispute that the application to refer the matter for redetermination of compensation was filed by delay. Facts show that the original award was passed on 23.04.2012. On the request of some of the land owners (not by the petitioners), the matter was referred to the Civil Court, who passed award on 02.11.2015. As the petitioner came to know about the award passed by the Reference Court, he filed an application u/S 28A of the Act, 1894 before the Collector on 28.11.2015. The Collector decided this application and passed the final order (impugned before the Reference Court) on 18.01.2017. The application for referring the matter was filed before the Collector on 05.05.2017 i.e. after 107 days from the date of the award passed by the Collector. The limit prescribed to file the application for referring the matter to the Civil Court is six weeks. In certain conditions, this limit extends upto six months. To better understand the limitation prescribed by the law, here I would like to refer Section 28A and Section 18 of the Act, 1894 and Section 14 of the limitation Act, 1963, which are as under: -
18. Reference to Court. -
(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 for the determination of 8 the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person 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) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
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 under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 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, required that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under section 18.
(underlined by me) S. 14. Exclusion of time of proceeding bona fide in court without jurisdiction.
9(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation.-- For the purposes of this section,--
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.
18. Thus, Section 28A gives right to the persons interested in all the other land covered by the same notification issued under section 4, sub- section (1) and who are also aggrieved by the award of the Collector, but could not apply earlier to refer their matter to the Civil Court, to apply to the Collector to re-determine the amount of compensation payable to them on the basis of the amount of compensation awarded by the Court in case the Court allows any amount of compensation in excess of the amount awarded by the collector under section 11 to the persons, whose matter was referred earlier. Sub Section 3 of Section 28A makes the provisions of sections 18 to 28 applicable to such 10 subsequent reference. Proviso to Sub Section 2 of Section 18 of the Act, 1894 provides that every such application shall be made within six weeks from the date of the Collector's award, if the person making it was present or represented before the Collector at the time when he made the award and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, Sub-Section (2), or within six months from the date of the Collector's award, whichever period expires first.
19. Conjoint reading of all these provisions leaves no doubt that if the award is passed by the Collector in presence of the claimant; the time limit to file application for making reference is six weeks (Vinayak Deshpandey v State of Maharashtra 2018 SCC OnLine Bom 2129). There is no dispute over the fact that in the case on hand, the application of the petitioner for redetermination of the amount of compensation filed under Section 28A of the Act, 1894 was decided by the Collector in his presence. Therefore, there is no doubt that only six weeks time was available to him to file application to refer the matter to the Court. The Collector decided the application filed by the petitioner under Section 28A of the Act, 1894 on 18.01.2017. The six weeks expired on 01.03.2017. The application to refer the matter was filed before the Collector on 05.05.2017. Thus, the application was delayed by 65 days.
20. Now, the cardinal question arises that whether this delay can be condoned. The answer is given by the Hon'ble Supreme Court in the case of Bhagwan Das v. State of Uttar Pradesh 2010 (3) MPLJ 251 :
(2010)3 SCC 545 stating that the provisions of the Limitation Act do not apply to the proceedings under the Land Acquisition Act and the Court is not empowered to condone the delay or to extend the limitation in any proceeding under the Act. In para 6 of this judgement, Hon'ble the Apex Court has framed question '(b)' on this issue and has replied the same in para 14 to 16, which reads as under:
6. The following questions arise for consideration, on the 11 contentions urged:
(a) xxx
(b) Whether the Collector can condone the delay in filing an application seeking reference, if sufficient cause is shown?
(c) xxx
(d) xxx Re: Question (b)
14. The proviso to Section 18 requires that an application by a person interested, to the Collector, seeking reference of his claim for higher compensation for determination by the court, shall be made within six weeks from the date of the Collector's award, if such person was present or represented before the Collector, at the time when the award was made. If not, the application for reference shall have to be made within six weeks of the receipt of the notice of the Collector under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire.
15. In Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal [(1996) 9 SCC 414] this Court held that in view of the special limitation provided under the proviso to Section 18 of the Act, Section 29(2) of the Limitation Act cannot be applied to the proviso to Section 18 of the Act; and therefore, the benefit of Sections 4 to 24 of the Limitation Act, 1963 will not be available in regard to applications under Section 18(1) of the Act. It was also held that as the Collector is not a court when he discharges his functions as a statutory authority under Section 18(1) of the Act, Section 5 of the Limitation Act, 1963 cannot be invoked for extension of the period of limitation prescribed under the proviso to Section 18(2) of the Act.
16. As the Collector is not a civil court and as the provisions of Section 5 of the Limitation Act, 1963 have not been made applicable to proceedings before the Collector under the Act, and as there is no provision in the Act enabling the Land Acquisition Collector to extend the time for making an application for reference, the Collector cannot entertain any application for extension, nor extend the time for seeking reference, even if there are genuine and bona fide grounds for condoning delay. This view was reiterated in SAIL v. SUTNI Sangam [(2009) 16 SCC 1]. Therefore, the observation of the High Court that an application for condonation of delay could have been made by the person interested; is incorrect.
21. After discussing the law on the subject, in para 28 of the judgement, the Court summed up the following proposition of law emerged from the discussion:
28. The following position therefore emerges from the interpretation of 12 the proviso to Section 18 of the Act:
(i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under Section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under Section 12(2) of the Act was the date of knowledge of the contents of the award. (underlined by me)
22. The Hon'ble Supreme Court reiterated the same view that if the law prescribes limit for making any claim, it should be construed rigidly. While considering the question of limitation in a case under the Act, 1894 in Popat Bahiru Govardhane v. Land Acquisition Officer, (2013) 10 SCC 765 : (2014) 1 SCC (Civ) 149 : 2013 SCC OnLine SC 752 at page 771, the Court asserted that:
16. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."13
23. Allahabad High Court has also considered the issue in Krishna Devi Gautam v. State of U.P., 2000 SCC OnLine All 448 and held that:
16. Thus a limitation to the making of reference has been provided for. There is no provision empowering the Collector to extend the period limited by the proviso to sub-section (2) of Section 18. In the absence of any such authority conferred on the Collector, if the application is not made within the period prescribed and clause (a) and (b) of the proviso in that event, Collector has no jurisdiction to make a reference. The reference can be made by the Collector only when an application is made in terms of sub-section (2) which provides about the limitation as to when such application could be made. The right conferred under sub-section (1) of Section 18 is subject to the procedural limitations provided in sub-section (2). An aggrieved person has a right to seek a reference by an application to be made within the period limited by the proviso to sub-section (2). Since sub-section (1) provides that such an application shall be a written application made to the Collector and that too, in the form prescribed in sub-section (2) and within the time limit provided in the proviso thereto, the reference could be made by the Collector only when the application fulfils the conditions provided in Section 18.
24. This proposition of law is followed by the High Courts of Bombay (Santosh Kanhuje v. Union of India 2013 SCC OnLine Bom 910, Parasmal v. State of Mharashtra 2014 SCC OnLine Bom 355), Calcutta (Nikhil v. State 2012 SCC OnLine Cal 5788), Delhi (Gyanprakash v. UoI 2018 SCC OnLine Del 11989), Patna (Rajdeo Singh v. State of Bihar 2016 SCC OnLine Pat 9689), Himachal Pradesh (Rekha v. State of HP 2015 SCC OnLine HP 3325) and Allahabad (Dhani Ram v. State of U.P. order dated 29 April, 2016 FA No. 439 of 1996).
25. The judgements cited by the petitioner either discussed the law applicable to the cases where the award was passed by the Collector in absence of the claimants/land owners or their representatives and they came to know about the same at some later stage either through notice 14 issued under Section 12(2) of the Act, 1894 or otherwise or they deals with the issue of starting point of the limitation and holds that the limitation would start running from date of actual or constructive knowledge of essential contents of award and not from date of passing of award. While in the present case the award was passed by the Collector in the presence of the petitioners Therefore, they are distinguishable on fact and are not helpful for the petitioner.
26. Much emphasis is given on the issue that the time spent in prosecuting the cause before the Civil Court has to be excluded from computation of the period of limitation. Though in view of the foregoing discussion this issue is worthless to consider, however, if only for the sake of the arguement, it is considered; even then the Reference under consideration was time barred. The final order dated 18.01.2017 passed by the LAO was directly challenged before the Civil Court on 23.03.2017 and the petition preferred before the Court was finally withdrawn on 02.05.2017. Thus, total 40 days were spent in the Civil Court, while the total delay in filing the application was 65 days. Even after exclusion of these 40 days, the application to refer the matter to the Civil Court remains barred by 25 days and as stated above, this delay cannot be condoned.
27. The question was raised that once the reference was made by the Land Acquisition Officer or by the Collector, the Reference Court was bound to answer the reference and it was not open to it to go back upon the reference and to question its maintainability on the ground of limitation; therefore, dismissal of the reference on the ground of limitation is not proper.
28. Relying on the judgement of the Hon'ble Supreme Court rendered in the case of Mohd. Hasnuddin v. State of Maharashtra, (1979) 2 SCC 572 : AIR 1979 SC 404, the learned Reference Court has rightly rejected the contention urged by the learned counsel for the petitioner and came to the conclusion that as the application for 15 reference was barred by time, the reference could not be entertained. In the case of Mohd. Hasnuddin (supra), the Apex Court made it clear that:
22. The word "requires" in Section 18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under Section 18 on the fulfilment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. The power of the Collector to make a reference under Section 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
23. The conditions laid down in Section 18 are 'matters of substance and their observance is a condition precedent to the Collector's power of reference, as rightly observed by Chandavarkar, J., in re Land Acquisition Act. We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to Section 18 sub-section (2) is a sine qua non for a valid reference by the Collector.
24. From these considerations, it follows that the court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the court jurisdiction to hear the reference. In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim case.
25. Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a 16 tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As observed by the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan [LR (1855) 6 MIA 134 (PC)] wherever jurisdiction is given to a court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.
26. 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 under Section 18, and if the reference is not proper, there is no jurisdiction in the court to hear the reference. It follows that it is the duty of the court to see that the 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.
27. In deciding the question of jurisdiction in a case of reference under Section 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. (emphasis supplied by me)
29. In the last bid to get the impugned order set-aside, the learned counsel for the petitioner argued that the view taken by the learned 17 Reference Court to dismiss the reference that the LAO has not "enquired" into the matter and has not "determined the amount of compensation" therefore, the reference Court has no jurisdiction to entertain or to adjudicate the claim later referred by the Collector to him on the request of the petitioners is wholly erroneous. In such situation, according to the learned counsel, the proper course was to remand the matter to refer the same after complying with the mandatory conditions.
30. The learned counsel for the petitioner referred the order of the LAO, which is mentioned in the impugned order itself. The referred order of LAO reads as under:
"प्रकरण मम समग ककारर्यवकाहह पपूणर्य हहोनन पर मनरन दकारका प्रकरण कका अवलहोकन ककरका एवव उभर पक कन तकर्य पर मनन ककरका गरका। आवनदक कन दकारका धकारका 28 कन अवतगर्यत रकाशश बढकानन हनतत अनतरहोध ककरका हहै। इस सवबवध मम आवनदक दकारका भपू-अरर्यन कन प्रकरण मम पकाररत अवकारर्य सन असवततष हहोकर धकारका 18 कन अवतगर्यत आवनदन नरकारकालर मम प्रसततत ककरका हहै अथवका नहहव ? उक रकानककारह प्रसततत करनन मम आवनदक असमथर्य रहका हहै एवव इस सवबवध मम प्रमकाण भभ प्रसततत नहहव ककरका हहै। भपू-अरतर्यन अशधशनरम 1894 कक धकारका 18 कन अवतगर्यत आवनदन प्रसततत करनन कक रकानककारह न दननन एवव प्रमकाण पनश नहहव करनन एवव मकाननभर नरकारकालर कन प्रकरण मम पकककार न हहोनन कका प्रमकाण प्रसततत नहहव ककरका हहै। अत: आवनदक दकारका भपू
-अरर्यनअशधशनरम कक धकारका 28 ए कका आवनदन पत सवभककार ककरका रकानका उशचित प्रतभत नहहव हहोनन सन धकारका 28 ए कका आवनदन पत शनरसत ककरका रकातका हहै। प्रकरण समकाप हहो।"
31. It is submitted that the order of the learned LAO reflects that before dismissal of the claim of the petitioner, he completed all the preliminary proceedings, inquired into the matter, heard arguements of the parties and only thereafter decided the matter. Therefore, it is incorrect to say that the matter was not 'enquired' by the LAO. This order also shows that the claim of the petitioner was not dismissed on merits but was dismissed on default or on the basis of his failure to 18 furnish information sought by the LAO and this is contrary to the law on two grounds. First the information sought for was available in the office of the LAO itself and second the LAO was bound to consider the merits of the case. Therefore, it is insisted upon to remand the matter to the Reference Court with a direction to further remand it to the LAO to decide the claim of the petitioner on merits. But the prayer made by the petitioner cannot be acceded simply because, as discussed above, their application to refer the matter to the Court was barred by limitation and the Collector or the Court are not empowered to condone the delay. Therefore, without expressing any opinion on this aspect of the impugned order, the arguement advance by the learned counsel is dismissed.
32. At their turn, the respondents have questioned the maintainability of the revision petition filed by the petitioner. It is averred that the Reference Court has dismissed the Reference and the order impugned amounts to "Award of the Court", therefore, as prescribed under Section 54 of the Act, 1894, appeal and not the revision would lie. Section 54 of the Act reads as under:
"54. Appeals in proceedings before court.--Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order 45 thereof."
33. Bare perusal of the provision shows that this section provides appeal only against "Award of the Court". Difference between "Award of the Court" and "Award of the Collector" is discussed by the Hon'ble Apex Court in Bhagwan Das case (supra) (2010) 3 SCC 545 and it is held that the decision of the Collector made after an enquiry under Section 11 with the previous approval of the appropriate Government is 19 an "Award of the Collector", while determination of the amount of compensation by a Court under Section 26 of the Act is an "Award of the Court" which shall be deemed to be a decree. Thus there is a difference between an "Award of the Collector" which is an offer of compensation by the Collector as the agent of the Government, and an "Award of the Court" which is a determination of the compensation by a civil court on a reference made by the Collector.
34. Albeit the order under challenge in the present case is in two distinct parts, but it doesn't make any difference as, in both the parts merits have not been considered. First part deals with the maintainability of the reference on the ground of limitation and decides the application filed by the petitioner under Section 14 of the Limitation Act for condonation of delay, while second part deals with the necessary requirement to entertain the reference made by the Collector. First part of the impugned order has nothing to do with the merits of the case. The Court simply considered the application filed for condonation of the delay and dismissed the same holding that the delay cannot be condoned. Even in second part, the learned reference Court has not considered the merits of the case. The law in well settled that unless the material on record is considered, the order of dismissal of reference by Civil Court is not an adjudication and cannot be treated to be an award. No appeal against such order will lie under section 54. The only remedy of revision would be available to the applicant. In this regard judgement passed in Kawadu v. State of Maharashtra, 2003 SCC OnLine Bom 597, Vijaykumar Hanumanprasad Goenka v. State of Maharashtra, 2004 SCC OnLine Bom 51, Mangilal Jawanmal v. Special Land Acquisition Officer, 1977 SCC OnLine Bom 99 : AIR 1978 Bom 325, Krishna Devi Gautam v. State of U.P., 2000 SCC OnLine All 448 can be usefully referred. Similar question was raised in Dembeswar Sarma v. The Collector of Sibsagar 1917 (39) Indian Cases 537, wherein order rejecting the reference on account of being barred by limitation was held that the same was not an award and as 20 such, no appeal lies thereto. In Lakshmi Narayan v. The State of Rajasthan AIR 1966 Rajasthan 118, the Rajasthan High Court has also taken the same view that a reference rejected as barred by limitation is not an "award" and therefore, no appeal lies under Section 54 of the Act, 1894.
35. Thus; undoubtedly, the order under challenge does not amount to "Award of the Court" and therefore, is not appealable under Section 54 of the Act, but the revision lies against such order. Hence, the contention of the learned counsel for the respondent is not tenable.
36. As held above, there is no question of the provisions of Section 14 of the Limitation Act being applicable for seeking condonation of delay in preferring an application under Section 28-A of the Act, 1894. Hence, the application as moved by the petitioner seeking condonation of delay itself was not tenable. As the provisions of Section 14 of the Limitation Act are itself not applicable, there is no question of seeking condonation of delay in filing an application for redetermination of compensation under Section 28A of the said Act. In view of the above, none of the submissions advanced on behalf of the petitioner are tenable. The learned Reference Court has rightly dismissed the application of the petitioner. As no illegality is committed by the learned Reference Court, there is no scope for this Court to interfere with the impugned order. The petition is devoid of any merit. Hence, the same is accordingly dismissed with no order as to costs.
37. Copy of this order be placed in the record of other connected matters.
(Virender Singh) Judge soumya Digitally signed by Soumya Soumya Ranjan Dalai DN: c=IN, o=High Court of Madhya Pradesh Bench Ranjan Indore, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=f4d2118683e84322b b5797cf28ee60671538b737cf Dalai 52962d84d7b527897e53ac, cn=Soumya Ranjan Dalai Date: 2020.05.11 18:14:53 +05'30'