SCA/6378/1990 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6378 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BENABEN BHANABHAI & 10 - Petitioner(s) Versus UNION OF INDIA & 2 - Respondent(s) ========================================================= Appearance : MS VASUBEN P SHAH for Petitioner(s) : 1 - 11. SERVED BY RPAD - (R) for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 10/04/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. By filing this petition under Article 226 of the Constitution, the petitioners have prayed to issue a SCA/6378/1990 2/49 JUDGMENT writ of certiorari or any other appropriate writ or direction to set aside order dated June 18, 1990 passed by the Special Land Acquisition Officer, Tapi Canal Scheme, “B” Branch, Surat by which the petitioner No. 1 i.e. Mrs. Benaben Bhanabhai is informed that the application dated February 2, 1990 made by her requiring the Special Land Acquisition Officer to refer the matter to the Court for determination of appropriate amount of compensation payable to her, is not accepted as the same is time barred under Section 18 (2)of the Land Acquisition Act, 1894 (“the Act” for short) and is therefore ordered to be filed. The petitioners have also prayed to declare that the provisions contained in Section 18 (2) of the Act prescribing the period of limitation for making application for reference to the Court are ultra vires and unconstitutional, as they violate the fundamental rights of the petitioners guaranteed under Articles 14, 21 and 300- A of the Constitution. 2. The petitioners were the owners of lands bearing Survey No.701/1-2—3-4-7-8 and Survey No.705/1 SCA/6378/1990 3/49 JUDGMENT admeasuring, in aggregate 14873 Sq. Mtrs. situated at village Ichhapore, Tal. Choryasi, District : Surat. It appeared to the appropriate Government that the lands of the petitioners and otherS were likely to be needed for the public purpose of Hajira Fertilizers Complex Township extension. Therefore, notification u/s 4 of the Act was published in the Government Gazette on March 17, 1983. Those who were interested in the lands had filed their objections. After consideration of the objections, the Special Land Acquisition Officer forwarded his report u/s 5-A (2) of the Act to the Government. The Government on consideration of the report was satisfied that the lands in question were needed for the public purpose of Hajira Fertilizers Township extension. Therefore, notification u/s 6 of the Act was published on September 20, 1983. Thereafter notices u/s 9 of the Act were served upon the petitioners in September, 1983. The notification issued u/s 6 of the Act by the Government was challenged by the petitioner No.1 and others by way of filing Special Civil application No. 5018 of 1983, wherein interim relief was granted restraining the respondents from interfering with SCA/6378/1990 4/49 JUDGMENT petitioners' possession of the lands. Meanwhile, the Special Land Acquisition Officer issued notice dated June 10, 1986 informing the petitioners that pursuant to the notice served u/s 9 of the Act, the date of hearing was fixed before him on June 30, 1986. 3. The case of the petitioners is that as they had challenged the notification issued u/s 6 of the Act dated September 20, 1983 in Special Civil Application No. 5018 of 1983, they did not remain present before the Special Land Acquisition Officer on the date of hearing specified by him. The Special Land Acquisition Officer made his award on August 20, 1986. 4. It is evident from the record of the case that the respondent No. 3 i.e. the Special Land Acquisition Officer served a notice dated October 10, 1986 u/s 12 (2) of the Act bringing to the notice of the petitoenrs the award passed by him and further informing that as there is interim relief operative against taking possession of the lands, after the final decision of the court and possession of the SCA/6378/1990 5/49 JUDGMENT land is taken over, the amount of compensation determined in the award would be paid to them. The High Court disposed of Special Civil application No. 5018 of 1983 and therefore the petitioners handed over the possession of the lands to the respondent No.3 on October 25, 1989. 5. The case of the petitioners is that they had accepted the amount of award under protest and therefore by a written application dated February 6, 1990 they requested the Special Land Acquisition Officer to refer the matter to the Court for determination of the appropriate amount of compensation payable to them. The petitioners have stated that the petitioners orally pointed out that a judgment of this Court and submitted that if there was any delay in filing the application u/s 18 of the Act, it may be condoned. But the Special Land Acquisition Officer has by his order dated June 10, 1990 has refused to make reference to the Court on the ground that the application requiring him to make reference to the Court was time barred. The petitioners have averred that the Special Land SCA/6378/1990 6/49 JUDGMENT Acquisition Officer, after condoning delay, should have made reference to the court to enable the court to determine appropriate amount of compensation payable to the petitioners, as the petitioners were not present when the award was made. In the alternative, the petitioners have asserted that the provisions contained in Section 18 (2) of the Act requiring the aggrieved party to make application for reference within the time specified therein, are violative of principles enshrined in Articles 14, 19, 300A of the Constitution. Under the circumstances, the petitioners have filed the present petition and claimed reliefs to which reference is made earlier. 6. Ms. Kalpana Brahambhatt learned counsel for the petitioners contended that neither the petitioners nor their representatives had remained present in the office of the respondent No. 3 on August 20, 1986 when the award was made by him and as the petitioners had not accepted the award, the prayer for reference made by the petitioners should have been accepted. It was argued that the period of limitation prescribed in Section 18 (2) of the Act commenced from the date SCA/6378/1990 7/49 JUDGMENT on which the petitioners obtained the certified copy of the award and therefore, the respondents were not justified in rejecting the prayer made by the petitioners to make reference to the Court to determine appropriate amount of compensation payable to them. In the alternative, it was argued that the provisions of Section 18 (2) of the Act prescribing the period of limitation for making application requiring the Special Land Acquisition Officer to refer the matter to the Court for determination of appropriate amount of compensation payable to a claimant are violative of the fundamental rights guaranteed to the petitioners under Articles 14, 21, 300-A of the Constitution and therefore Section 18 (2) of the Act should be declared to be ultra vires the Constitution. The learned counsel for the petitioners emphasised that the period of limitation prescribed to alter or set aside any decision or the order of the Civil Court in any proceeding other than the suit or any act or order of an Officer of the Government in his official capacity is one year from the date of final decision of the order by the court or the date of the act or the order of the SCA/6378/1990 8/49 JUDGMENT officer as the case may be as provided in Article 100 of the Limitation Act, 1963 and therefore the legislature was not justified in prescribing the period of limitation less than one year for making application for reference to the court. It was asserted that the period of limitation prescribed under Section 18 of the Act for making application against the award of the Collector is not only unreasonable but shorter than the period prescribed under the Limitation Act, 1963 for initiating proceedings to challenge the order of an officer of the government and therefore Section 18 (2) of the Act should be struck down as violative of principles enshrined in Article 14 of the Constitution. It was argued that Section 18 (2) of the Act prescribing the period of limitation for making application requiring the Special Land Acquisition Officer to refer the matter to the Court for determination of the appropriate amount of compensation has resulted into deprivation of right of the petitioners to get just compensation only on technical ground and therefore the same should be held to be ultra vires. The learned counsel for the petitioners emphasised that SCA/6378/1990 9/49 JUDGMENT refusal on the part of the the Special Land Acquisition Officer to refer the matter to the Court for determination of appropriate amount of compensation payable to the petitioners is arbitrary as well as unjust and therefore, the reliefs claimed in the petition should be granted to the petitioners. 7. Though the notice to the learned Attorney Journal has been served, neither he has appeared nor any other lawyer has appeared on his behalf. Mr. Mukesh A. Patel, learned A.G.P. appearing for the respondents No.2 and 3 contended that in view of the Full Bench decision of this Court in Memon Ibrahim Haji Latif Sukhediwala V. Officer on Special Duty (Land Acquisition) and Another,1994 (1) G.L.R. 296 and the decision of the Supreme Court in Officer on Special Duty (Land Acquisition) Vs. Shah Manilal Chandulal, (1996) 9 SCC 414, the Special Land Acquisition Officer was justified in not entertaining the application submitted by the petitioners requiring him to refer the matter to the Court for determination of appropriate amount of compensation payable to them as the same was time barred. It was SCA/6378/1990 10/49 JUDGMENT argued that the provisions enacted by the Legislature prescribing the period of limitation for making reference to the court are based on the principles of justice and equity and, therefore, the said provisions should not be regarded as violative of rights of the petitioners guaranteed under Articles 14, 21 and 300-A of the Constitution. It was emphasised by the learned A.G.P. for the respondents No.2 and 3 that the object of the law of limitation is to prevent the disturbances or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by party's own inaction, negligence or latches and therefore the submission advanced on behalf of the petitioners, having no force, should not be accepted. 8. This Court has heard Ms. Kalpana Brahambhatt learned counsel for the petitioners and Mr. Mukesh A. Patel, learned A.G.P. for the respondents No.2 and 3 at length and in great detail as well as considered the documents forming part of the petition and relevant statutory provisions. SCA/6378/1990 11/49 JUDGMENT 9. While dealing with the first prayer made by the petitioners that order dated June 18, 1990 passed by the Special Land Acquisition Officer informing the petitioner No. 1 that the application dated February 6, 1990 made by her requiring the Special Land Acquisition Officer to refer the matter to the Court for determination of the amount of compensation is not accepted as the same is time barred, should be set aside, this Court is of the view that reference to Section 18 of the Act is necessary. Section 18 of the Act reads as under : “Section 18 :- Reference Court – (1) Any person interested who has not accepted the award may, by written application to the Collector, are require that the matter be referred by the Collector for the determination of the court, whether his objection be to the measurement of the land, the amount of 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 SCA/6378/1990 12/49 JUDGMENT 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 Collector's award, whichever period shall first expire“ 10. A bare reading of above quoted provisions makes it more than clear that existence of an award is essential for making a reference under Section 18of the Act. A reference under Section 18 of the Act is limited to (i) measurement of the land, (ii) quantum, (iii) the persons to whom it is payable and (iv) the apportionment of compensation. Finality of award of the the Special Land Acquisition Officer can be questioned only by resorting to the provisions of Section 18 of the Act. Sub-Section (1) of Section 18 SCA/6378/1990 13/49 JUDGMENT of the Act inter-alia provides that any person interested, but has not accepted the award, may by written application to the Collector, require that the matter be referred to the Collector for determination, with regard to his objection as to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation amongst the persons interested. As provided by Sub-Section (2) of Section 18 of the Act, the application has to state the grounds on which objection to the award is taken. What is important is that under proviso to Sub- Section (2) of Section 18 of the Act, application under Section 18 (1) of the Act has to be made within six months from the date of the Collector's award if the person making it was present or represented before the Collector at the time when the award was made and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 (2) or within six months from the date of the Collector's award, whichever period expires first. SCA/6378/1990 14/49 JUDGMENT 11. At this stage, it would be advantageous to refer to the Full Bench decision of this Court in the case of Memon Ibrahim Haji Latif Sukhediwala (supra). In that case, the Full Bench has taken the view that the provision of Section 5 of the Limitation, Act, 1963 will apply only to applications to Courts and as the Collector under Section 18 of the Act discharges only administrative functions and not judicial functions and has no character of a Court, he has no power to condone the delay caused in making application for reference. What is ruled by the Full Bench of this Court is that if the Collector commits an error in making reference in that he has not adhered to the fulfillment of the conditions, the Court dealing with the reference can, still, examine it and throw out the reference , if it is found that the conditions have not been fulfilled. 12. Again in the case of Officer on Special Duty (Land Acquisition) and Another Vs. Shah Manilal Chandulal and Others, (1996) 9 SCC 414, the Supreme Court has authoritatively laid down the proposition of law that in view of the specific limitation SCA/6378/1990 15/49 JUDGMENT provided in proviso to Section 18 (2) of the Act, Sub-Section 2 of Section 29 of the Limitation Act, 1963, cannot be applied to the proviso to sub-section (2) of Section 18 of the Act and the Collector / Land Acquisition Officer who is not a court cannot condone the delay caused in making application for reference. It is relevant to notice that neither the Full Bench of this Court nor the Supreme Court has found that prescription of period of limitation for making application for reference is either arbitrary or violative of the provisions of the Constitution as is sought to be contended on behalf of the petitioners. 13. In Mahadeo Bajirao Patil V. State of Maharashtra, 2006 (1) G.L.H. 583, the lands were acquired. Notice u/s 12 (2) of the Act was served on the appellant after the award had been declared by the Special Land Acquisition Officer on August 29,1994. In the writ petition which was filed by the appellant, knowledge of the fact that the award was declared, was admitted, but it was asserted that the copy of the award had not been officially served SCA/6378/1990 16/49 JUDGMENT upon him. The application under Section 18 of the Act was made by the appellant on February 20, 1995, which was rejected as time barred. After review of law on the point the Supreme Court has held in paras 8, 9, 11, 12 and 14 of the reported decision as under : “para 8 : A mere perusal of Section 18 discloses that there are three situations for which period of limitation has been provided for making an application for reference. Firstly, if the person making the application was present or represented before the Collector at the time when he made his award, the application must be filed within six weeks from the date of the Collector's award.” “Para 9 – In the instant case, it is not disputed that the appellant was not present when the award was made and, therefore, Section 18(2)(a) is not applicable to the facts of this case. “Para 10 – Second and third situations are envisaged by Section 18 (2) (b). The second situation envisaged is where a notice is received by the applicant under SCA/6378/1990 17/49 JUDGMENT Section 12 sub-section (2) of the Act. In such a case, the period of limitation prescribed is six weeks from the date of the receipt of the notice or within six months from the date of the Collector's award whichever period shall first expire. In the instant case, the High Court has held the application to be barred by limitation, firstly, on the ground that the telegram sent to the appellant on September 18, 1994 amounted to a notice under sub- section (2) of Section 12 of the Act, and secondly, on the ground that in any event as on December 9, 1994 the applicant had not only knowledge of the fact that an award has been declared but had also a copy of the award which he annexed with writ petition as exhibit B. If the date of knowledge is taken to be December 8,1994, even then the application under Section 18 was barred by limitation. The correctness of these findings has been assailed before us. Para 11 : It is by now well settled that notice under Section 12(2) of the Act is a clear intimation of making of the award requiring the owner or person interested to receive the compensation awarded SCA/6378/1990 18/49 JUDGMENT under Section 11 of the Act. It is not necessary that the notice should contain all the details of the award including the consideration by the Land Acquisition Collector and its manner of determination of the compensation. No particular form is prescribed by the Act or the Rules.” “Para 12 : In State of Punjab and another V.Satinder Bir Singh this Court held : “The question then is whether the notice under Section 12 (2) is a valid notice. From a conjoint reading of Sections 11 and 12, it is clear that notice is only an intimation of making of the award requiring the owner or person interested to receive compensation awarded under Section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18 (1) would SCA/6378/1990 19/49 JUDGMENT arise. At that juncture, it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of sub-section (1) of section 12, or seek a certified copy of the award from the Collector and the contents. Thereon he could make necessary objection for the determination, inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interested should immediately make the reference application on his receiving compensation under Section 31. In other words receipt of the amount and making the reference application are not simultaneous. The statutory operation of limitation mentioned by Section 18(2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form. The limitation begins to operate from the moment the notice under Section 12 (2) is received or as SCA/6378/1990 20/49 JUDGMENT envisaged by Section 18 (2).” “Para 14 : We are here not concerned with the correctness of the decision, but the fact remains that having considered the claim of the appellant for compensation, the Special Land Acquisition Officer rejected the claim. This does amount to the making of an award, commonly described as 'nil award'. If the appellant was aggrieved by such an award, it was open to him to seek reference under Section 18 of the Act which the appellant actually did. We, therefore, cannot hold that no award as envisaged by Section 11 of the Act was declared on August 29, 1994, since the claim of the appellant was considered and was totally rejected. There was, therefore, no question of giving any calculation of the manner in which the compensation was computed. Since, the application under Section 18 was not filed within six weeks of the receipt of notice under Section 12 (2) of the act, the High Court did not commit any error in holding that the application was barred by limitation. It was not disputed before us that the Land Acquisition Officer making a reference, SCA/6378/1990 21/49 JUDGMENT or the court considering a reference under Section 18 of the Act has no power of condonation of delay in making an application under the aforesaid section.” 14. Applying the principles laid down in above mentioned decisions to the facts of the case, this Court finds that it is an admitted position that the award in this case was made by the Special Land Acquisition Officer on August 20, 1986. In paragraph 4 of the petition, the petitioners have admitted that the notice dated October 10, 1986 issued under Section 12 (2) of the Act was served on them. The application u/s 18 (1) of the Act, requiring the Special Land Acquisition Officer, to make reference to the Court was filed on February 6, 1990 i.e. not within six weeks of the receipt of the notice u/s 12 (2) of the Act as required by Clause (b) of the proviso to sub-section (2) of Section 18 of the act. Therefore, in view of the settled legal position the Special Land Acquisition Officer did not commit any error in refusing to refer the matter to the Court for determination of appropriate compensation payable to the petitioners because the application was time SCA/6378/1990 22/49 JUDGMENT barred and he had no power to condone the delay. Therefore, the first prayer made by the petitioners is liable to be refused and is hereby refused. 15. In so far as the prayer made by the