Bombay High Court
Bhupal Premchand Shah And Others vs State Of Maharashtra on 12 August, 1994
Equivalent citations: AIR1994BOM317, 1994(2)MHLJ1558, AIR 1994 BOMBAY 317, 1994 (3) RRR 629, 1994 MAH LJ 1558, (1994) 2 RENCR 529, (1995) 1 CURLJ(CCR) 50
ORDER A. M. Bhattacharjee, C.J.
1. The question that has been referred to the Full Bench is whether the provisions of the Limitation Act, 1963, and S. 5 thereof in particular, would apply to an application made to the Collector under S. 18 of the Land Acquisition Act, 1894. Jahagirdar, J., who has made the order of reference, has pointed out that while the aforesaid question has been answered in the negative by a Division Bench of this Court in P. W. Gadgil v. P. Y. Deshpande, , speaking through Jahagirdar, J. himself, it has been held by an earlier Division Bench of this Court in Ramu Dhondi Todkar v. The Special Land Acquisition Officer (Writ Petition No. 585 of 1979 decided on 12th August 1981) speaking through Pendse, J., that the provisions of S. 5 of the Limitation Act apply to the proceedings under S. 18 of the Land Acquisition Act.
2. There has been considerable argument at the Bar and a good number of precedents have been piled up on each side. But we do not intend to make an idle parade of learning by referring to all of them as we are inclined to hold that most of them did not consider the question in the frame, form and manner in which we propose to proceed. The earlier Division Bench judgment, where Pendse, J. spoke for the Bench, has not, however, considered the question either with reference to the relevant provisions of the Act or any other Statute or any case law on the point. But the later judgment of the Division Bench, speaking through Jahagirdar, J., in P. W. Gadgil v. P. Y. Deshpande (supra) appears to have considered the question in considerable depth.
3. Jahagirdar, J. has rightly pointed out that, whatever might have been the position earlier, it is now settled by the Supreme Court in Kerala State Electricity Board, , that the provisions of the Limitation Act would apply to any application under any taw for the time being in force provided the application is made to a Court. The result, therefore, is that if we hold the Collector acting under the provisions of S. 18, Land Acquisition Act, 1894, to be a 'Court', we would have to hold that the provisions of the Limitation Act, including obviously S. 5 thereof, would apply to an application made to the Collector under S. 18 of the aforesaid Act.
4. A new sub-section, being sub-sec. (3), has been added to S. 18 of the Land Acquisition Act, 1894 by the Maharashtra Act No. 38 of 1964, which runs as hereunder :--
"(3) Any order made by the Collector on an application under this section shall be subject to revision by the High Court, as if Collector were a Court subordinate to the, High Court within the meaning of S. 115 of the Code of Civil Procedure, 1908."
We have no doubt that if the provisions of S. 18 of the Land Acquisition Act were to be construed sans this sub-sec. (3), we will have to hold, in view of the weight of the authorities referred to in the decision of the Division Bench of our Court, speaking through Jahagirdar, J., in P. W. Gadgil v. P. Y. Deshpande, (supra), that the Collector functioning under those provisions is not a Court, whether subordinate to the High Court or otherwise. Without these decisions, some of which are binding on us, we might have been inclined to hold that in view of the definition of the expression "Court" in S. 3 of the Indian Evidence Act providing that 'Court' includes all persons (except arbitrators) legally authorised to take evidence and of the definitions of the expressions 'Judge' and 'Court of Justice" in Ss. 19 and 20 of the Indian Penal Code providing that "Judge" denotes every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definite and that "Court of Justice" denotes a Judge who is empowered by law to act judicially and also in view of the various functions exercised by the Collector under S. 19 of the Land Acquisition Act while making a reference under Section 18, the empowerment of the Collector to summon and enforce the attendance of witnesses (obviously to take evidence) and to compel the production of documents under S. 140 the Land Acquisition Act, and also the functions exercised by the Collector under S. 28A and Ss. 29-30, the Collector could be regarded as a 'Court'. But, as already indicated, the weight of authorities as indicated above leaves us with no option but to hold that the Collector acting under S. 18 of the Land Acquisition Act (without the provisions of sub-sec. (3) as added by Maharashtra Act No. 38 of 1964 or provisions analogous thereto), is not a 'Court'. Reference in this connection may be made, among others, to the decision of the Supreme Court in Md.
Hasanuddin . The question, therefore, is as to whether the provisions of sub-sec. (3), as quoted above, are to be regarded to have made any difference and to have made the Collector, even if not otherwise a Court, a 'Court' for the purpose of S. 18, as amended by the Maharashtra Act.
5. We have already extracted hereinabove the provisions of S. 18(3) of the Land Acquisition Act, 1894, as added by the Maharashtra Act No. 38 of 1964. We have no doubt that the provisions could have been drafted with better precision and clarity and this reminds us of the famous couplet very often to be found in the standard treatises on Interpretation of Statutes which runs as here-under : --
"I am the Parliamentary Draftsman, And I draft the country's Laws, And of half of the litigations, I am undoubtedly the cause."
Be that as it may, we have got to remember that Right to Property is still very much a Constitutional Right as enacted in Art. 300A of the Constitution, even though it is no longer labelled as a Fundamental Right, having been removed from Part III by the Constitution (Forty-Fourth Amendment) Act, 1978. A Constitutional Right, even though not branded as a Fundamental Right, is no less fundamental and any law taking away or affecting such right may also stand the risk of being outlawed. Under the provisions of Article 372(1), all pre-Constitution laws, and under the provisions of Art. 245(1), all post-Constitution laws are subject to all the provisions of the Constitution and, therefore, any law taking away or affecting any right guaranteed by any provision of the Constitution, whether labelled fundamental or not, must and cannot but be void to the extent of such inconsistency. After all, the difference between a Constitutional Right labelled as fundamental and the Constitutional Right not so labelled is more of form than of substance and the only appreciable difference that we find between a Fundamental Right and other Constitutional Right is that while for the enforcement of the former, a party may directly move the Supreme Court under Article 32 of the Constitution, he would not be entitled to do so in case of other Constitutional Rights, but will have to move the High Court under Article 226 of the Constitution or to resort to some other remedy. It would be trite to say that unless the relevant provisions of laws direct otherwise, no person is to be deprived of his property without full, just and proper compensation ordinarily in the shape of market value of the property. Therefore, any provision entitling a person to move for such compensation in the case of deprivation of the property is to be treated as provisions for the enforcement of the right guaranteed under Article 3000-A. It would again be trite to say that laws are always to be construed so as to further the rights guaranteed by the Constitution, whenever and wherever possible. We have said all these only to bring it home that the construction of the provisions of S. 18, or to be more precise S. 18(3), which would further and enlarge the right to move for a proper compensation for the property acquisitioned in the shape of market value or otherwise should be adopted as the same would be promoting further the Right to Property as guaranteed by Art. 300A of the Constitution. It is obvious that once the provisions of S. 18(2) of the Land Acquisition Act have prescribed a period of limitation for an application to the Collector requiring him to refer the Award for determination by the Court, it would be furthering and enlarging such right if we can hold that the provisions of the Limitation Act, 1963 and of S. 5 in particular, would apply thereto as the same would enable an owner of the deprived property to move the Court for due compensation even after the prescribed period, though obviously on proof of sufficient cause. We would, therefore, endeavour to interpret and construe the provisions of S. 18(3) of the Land Acquisition Act, extracted above, in a manner to make the provisions of S. 5 of the Limitation Act applicable to an application under S- 18 of the Land Acquisition Act, if that is reasonably possible.
6. Section 18(3) no doubt enacts a deeming provision as would appear from the words "as if the Collector were a Court" used therein. Now that we are proceeding to construe these provisions, we may remind ourselves of the classic observations of Chief Justice Chandrachud in the First Judges' Transfer case (Union of India v. Sankalchand Himatlal Sheth, as hereunder :--
"Statutory interpretations with conflicting rules pulling in different directions has become a murky area and just as a case-law digest can supply an authority on almost any thinkable proposition, so the new editions of old classics have collected over the years formulae which can fit in with any interpretation which one may choose to place. Perplexed by a bewildering mass of irreconcilable dogmas courts have adopted and applied to cases which come before them rules which reflect their own value judgments, making it increasingly difficult to define with precision the extent to which one may look beyond the actual words used by the legislature, for discovering the true legislative purpose or intent."
7. Now as to 'deeming provisions', it has been pointed out by Lord Radcliffe in St. Aubyn v. Attorney General (1951-2 All ER 473 at page 498) cited with approval by the Supreme Court in H. H. Advani, and also in Baliram Waman Hiray that such provisions are:--
"Sometimes used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain, Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."
8. Authorities apart, we are also of the view that the provisions of S. 18(3) have been enacted to put a stop to all doubts and debates as to whether a Collector, while making a reference under S. 18(1) of the Land Acquisition Act, acts as a 'Court'.
9. We have noted that while adding sub-sec. (3) to S. 18, the Maharashtra Act No. 38 of 1964 has also amended the definition of the expression 'Court' in S. 3(d) of the Land Acquisition Act. Under S. 3(d), as it stood before this amendment, the expression 'Court' was to mean generally a principal Civil Court of Original Jurisdiction. The Collector under the Land Acquisition Act cannot obviously be such a Civil Court of Original Jurisdiction to which a reference is to be made by the Collector. But the Amendment Act has taken care to provide that the expression 'Court' in S. 18(3) shall not be governed by the aforesaid definition and that definition would apply to 'Court', "except in sub-sec. (3) of S. 18". The result, therefore, is that the definition of the expression 'Court' as in S. 3(d) of the Land Acquisition Act is in no way decisive or determinative of the connotation of the expression 'Court' as used in S. 18(3) and we will have to construe the expression 'Court' in S. 18(3) without being in any way trammelled by the said definition.
10. The provisions of S. 18, sub-sec. (3), make it unmistakably clear that in respect of an order made by the Collector on an application under S. 18(1), the Collector shall be deemed to be a Court subordinate to the High Court. It is difficult to understand that if the concerned Legislature has thought it fit to make the Collector a Court in respect of the order under S. 18(1), which would obviously be the product of the process to be undertaken by the Collector under S. 18(1), read with Section 19, then why in respect of the process itself giving rise to the order, the Collector shall not also be deemed to be acting as such Court. If under the provisions of S. 18(3) of the Land Acquisition Act, the Collector is a Court in respect of an order made by the Collector on an application under S. 18, it will be evidently logical also to hold that while entertaining and disposing of such an application resulting in such an order, the Collector is to be regarded as a Court. If the intention of the Legislature was to treat the Collector as Court only for the limited purpose of 'revision to High Court', then it was sufficient to enact sub-sec. (3) of S. 18 as follows :--
"Any order made by the Collector on an application under this Section shall be subject to revision by the High Court."
Further part of sub-sec. (3) providing for deeming provision is not therefore for the said limited purpose, but in order to put beyond doubt or clarify that the Collector is Court while dealing with application for reference under S. 18(1). We are inclined to hold that if in respect of the product the Collector is deemed to be a Court, then the Collector must also be deemed to be such a Court in respect of the process undertaken to yield the product. And once we hold that the Collector is a Court at least for the purpose of application under S. 18(1), the provisions of the Limitation Act would obviously apply to such an application for reference. It may be noted that at any rate, and even otherwise, the provisions of the Limitation Act are obviously attracted vis-a-vis the order of the Collector because the revision application against such order would obviously have to be filed within the period prescribed under Art. 131 of the Limitation Act.
11. Jahagirdar, J. in P. W. Gadgil v. P. Y. Deshpande (supra at 81) has observed that provision in S. 18(3) making the Collector a Court subordinate to the High Court was made "in order to make clear the extent of the powers of revision to be exercised by the High Court". With respect, it is difficult to understand why such a deeming provision could at all be necessary only "in order to make clear the extent of the powers of revision" because once the order was made subject to a revision by the High Court, the extent of the powers of a revision would and could not but be as provided in S. 115 of the Code of Civil Procedure, even without any such deeming provisions.
12. Our attention has been drawn to a judgment of a learned single Judge of this Court in Ramesh v. State of Maharashtra, , which has been overruled by the aforesaid Division Bench, but, with respect, we find ourselves to be, in agreement with the view of the learned single Judge that "even though the Collector or a Land Acquisition Officer while dealing with the matter of the compensation may not be a Court governed by the provisions of the Code of Civil Procedure, yet by virtue of these provisions when he is dealing with the application for reference under S. 18, he deals with that application as Court governed by the provisions of the Code of Civil Procedure". As already indicated, if the order on an application for reference under S. 18(1) is considered to be an order by the Collector acting as the Court, then it will be obvious that the Collector is deemed to be acting as Court while dealing with and disposing of such an application under S. 18(1). We are, therefore, of the opinion that the Collector, while dealing with an application for reference under S. 18(1), shall be deemed to be a Court because of the provisions of S. 18(3) and, as we have stated at the outset, once it is held that the Collector is to be deemed to be a Court in respect of an application under Sec. 18(1), the provisions of Sec. 5 of the Limitation Act shall obviously apply thereto as a result of the operation of the provisions of S. 29(2) of the Limitation Act.
13. The provisions prescribing period of limitation are no doubt enacted to implement the principle "Interest Republicae Ut Sit Finis Litium"; but then such provisions without the corresponding provisions in Sec. 4 of the Limitation Act providing for the contingency when the Court is closed on the last day of the period prescribed or of S. 5 providing for extension of the prescribed period on good and sufficient cause, would amount to tyranny and productive of the greatest hardship. Be it noted that the provisions of Section 10 of the General Clauses Act, 1897 providing that an act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open will not be available to an application under Section 18(1) of the Land Acquisition Act as the Act is not a Central Act or Regulation made after the commencement of the General Clauses Act, 1897 and, therefore, if Section 4 of the Limitation Act is not available for an application under Section 18(1) of the Land Acquisition Act, then the application may have to be dismissed if filed after the period prescribed under Section 18(2) even though the office of the Collector was closed on the last day when the period expired. Then again, if because of flood, earthquake or other vis major or civil commotion or the like the office of the Collector was closed or otherwise inaccessible for several days when the prescribed period expired, it will be another act of tyranny to dismiss an application under Section 18(1) on the ground of the expiry of the period prescribed under Section 18(2). We do not for a moment suggest that calamities or hardships as aforesaid and also decisive in interpreting clear statutory provisions. But we have not the slightest doubt that if the relevant provisions of a statute can be interpreted in more ways than one, the interpretation, which will avoid all cases of avoidable-hardship and consequential failure of justice, must, wherever possible, be adopted.
14. This can also be looked from another angle. Section 28A has been inserted in the Land Acquisition Act, 1894 by the Maharashtra Act No. 68 of 1984. It provides for re-determination of amount of compensation on the basis of Award of the Court. If the person applying for reference under Section 18(1) has obtained enhanced compensation, then others who are covered by the same notification issued under Section 4(11) of the Land Acquisition Act and who have not sought reference under Section 18(1) can make application to the Collector for re-determination of the amount of compensation on that basis. Under sub-section (2) of Section 28A, the Collector has to hold enquiry and make award in such a case. Again, under sub-section (3) of Section 28A, if those persons are not satisfied with the Award of the Collector and do not accept the same, they may make an application to the Collector requiring him that the matter be referred by the Collector for the determination of the Court. It is, therefore, apparent that those persons, in effect, shall be in a position to apply for reference under Section 18(1) long, and may be very long, after the date of the original award by the Collector under Section 11. Taking note of this Legislative intention manifested in Section 28A, as inserted by Maharashtra Act No. 68 of 1984, we have been more fortified in our view that if those persons who did not initially apply for reference under Section 18(1) would be getting such a larger period to make application for reference, then, the period of limitation prescribed under Section 18(2) for the persons making application under Section 18, should also be liable to be enlarged for the ends of justice and that, by making the provisions of Section 5 of the Limitation Act applicable to such application, if such a course is reasonably possible by purposive approach and construction of the relevant provisions. As already indicated hereinabove, such a construction is reasonably possible and we hold accordingly. In our view, therefore, the Division Bench decision in P. W. Gadgil v. P. Y. Deshpande was wrongly decided and we hold that the provisions of the Limitation Act 1963, and of Section 5 in particular, are applicable to an application made to the Collector under Section 18(1) of the Land Acquisition Act requiring him to refer the matter for the determination of the Court.
15. We, therefore, answer the question involved in this case by holding that the provisions of the Limitation Act, 1963, including obviously Section 5 thereof, would apply to an application made to the Collector under Section 18(1) of the Land Acquisition Act, 1894, as amended by the Maharashtra Act No. 38 of 1964. We would now direct that the matter be now placed before appropriate Bench for consideration on merits. In view of the importance of the question involved and the cleavage of opinion thereon, we make no order as to costs.
16. Order accordingly.