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Jankibai Tukaram Vs. Nagpur Improvement Trust, Nagpur - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 71 of 1959
Judge
Reported in(1960)62BOMLR629
ActsLand Acquisition Act, 1894 - Sections 18, 18(2), 18(3) and 45(3); Nagpur Improvement Trust Act, 1936; Land Acquisition (Amendment) Act, 1908 - Sections 12(2), 12(4) and 29(2)
AppellantJankibai Tukaram
RespondentNagpur Improvement Trust, Nagpur
Appellant AdvocateJ.N. Chandurkar and ;M.N. Chandurkar, Advs.
Respondent AdvocateR.R. Dandige, Adv.
Excerpt:
.....to obtain copy of award made under land acquisition act whether can be excluded for computing period of limitation under proviso to section 18.;a tribunal constituted under section 60 of the nagpur improvement trust act, 1936, is not competent to hear revision applications made under section 18(3) of the land acquisition act, 1894. ;in a revision application to the high court against an order made by the collector on an application under section 18(3) of the land acquisition act, 1894, it is not necessary that the collector should be made a party to the revision application. ;for the purposes of clause (b) of the proviso to section 18 of the land acquisition act, 1894, the notice must be received by the person concerned. a service of the notice as contemplated in section 45 of the..........to jankibai's residence on 3-7-58 and therefore, computing the period of limitation from that date the collector held that the application under s. 18 of the act was clearly time-barred. he therefore rejected the application.(9) it is clear from clause (b) of the proviso to s. 18 of the act that in cases to which that clause applies the limitation is six weeks from the date of receipt of the notice or six months from the date of the collector's aard, whichever period first expires. this clause refers to the receipt of the notice where-as s. 20 of the act refers to service of the notice. section 45 also refers to the mode of service of notices. it is clear from the proviso to s. 18 that the person interested in the award should get six weeks from the date of receipt of the notice of.....
Judgment:
ORDER

(1) In this Civil Revision Application by one Jankibai the order passed by the lande Acquisition Officer, Nagpur, rejecting her application to make a reference under S. 18 of the Land Acquisition Act which ill hereinafter be referred to as the Act on the ground that it was time-barred is being challenged. The award was passed on 25-6-1958 and the application under Section 18 of the Act to the Collector prarying that the matter be referred under that section for the determination of the Court was on 19-8-1958. The application as rejected on the ground that the notice required by sub-secton (2) of Section 12 of the Act was served on 3-7-1958 by affixture on the house of Jankibai, and that therefoe under the proviso to Section 18 the application which was made on 19-8-58 was made more than six weeks from the date of service of notice, namely, 3-7-1958, and that the application could not therefore be entertained.

(2) A preliminary objection has been taken by the learned counsel for the opponent on the ground that this revision application oes not lie, that even if it lies it should have been made to the Tribunal under the Nagpur Improvement Trust Act, and that the Collector not having been made a party to the present application, the application is not maintainable.

(3) Before referring to the merits of the applications, this preliminary objection will e first disposed of. There is no merit in the contention that the revision application does not lie because sub-section (3) of Section 18 of the Act in terms provides :

'Any order made by the collector on an application under this section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the mkeaning of Section 115 of the Code of Civil Procedure, 1908.'

These is no substance in the argument that the application should be made to the Tribunal appointed under the Nagpur Improvement Trust Act. When a reference is made under Section 18 of the Act to the Court, the nagpur Improvement Trust Act, 1936 provides in Section 60:

'A Tribunal shall be constituted, as provided in Section 62, for the purpose of performing the functions of the court in rference to the acquisition f land for the Trust under the Land Acquisition Act, 1894.' The Tribunal so constituted hears references made under Section 18 of the Act and is not competent to hear revision applications made under Section 18(3) of the Act which lie to the High Court. The third contention in support of the preliminary objection is also bereft of any substance and that contention is also berft on any substance and that contention is that either the Collector or the State Government should have been made a party; and that as neither the Collector nor the State Government has been made a party to he revision application, it is not maintaibable. it is clear from sub-section (3) of S. 18 of the Act that an order made by the Collector on an application made under S. 18 of the Act is subject to revision by th High Court as if the collector were a Court subordinate to the High Court. When the High Court is hearing a revision application against an order passed by a subordinate Court, the latter is never made a party to the revision application. I therefore reject the preliminary objection and hold that this revision application does lie to the High Court.

(4) Now to turn to the merits of the application. It is contended that the notice required to be given under S. 12(2) of the Act was not given to the applicant but was affixed on the door of her house and was seen byher only on 13-7-1958. It is contended that for the purposes of proviso to S. 18 of the Act the notice must be received by the person concerned and it is not sufficient that it is served by affixing it to the door of his house. it is also contended that the Collector was wrong in applying S. 45(3) of the Act to justify the affixing of the copy of the notice on the outer door of the applicant's house and in calculating the time from the date it was so affixed. It is contended that the limitation starts from the date when the notice is actually received and not from the date when it might have been served under S. 45(3) of the Act. It is also urged that there is nothing to show that the applicant could not be found on 3-7-1958 when the notice was affixed on the outer door of her house and that there is also nothing to show that there was no adult male member of the family in the house at the time. It is urged that temporary absence for a few days would not justify the finding that the applicant could not be found. Lastly, it is contended that the time taken by the appicant in applying and getting a copy of the award should be excluded from the period of limitation under S. 29 and S. 12 of the Limitation Act.

(5) To appreciate these contentions it is necessary to refer to the relevant provisions of the Act. Sub-section (1) of S. 18 of the Act provides that 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 the Court. Sub-section (2) provides that the application should state the grounds on which objection to the award is taken. The proviso to this section provides:

'Provided that every such application shall be mad,-

(a) if the person making it was present or represented beore the Collector at the time when he made his award, within dix weeks from the date of the Collctor's award;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under S. 12, sub-section (2), or within six months from the date of the Collector's award, whichever periodshall first expire'.

(6) It is conceded in this case that clause (a) of the proviso has no application in the instant case because the applicant was not present or represented before the Collector at the time when he made his award. It is only clause (b) of the proviso that requires consideration. This clause refers to the notice form the Collector under S. 12, sub-section (2) which provides that after filin the award the Collector shall give immediate notice of his award to such of the persons interested as are not presented pesonally or by their representatives when the award is made.

(7) Section 45 of the Act deals with service of notices. Sub-section (1) provides that services of notice under the Act shall be made by delivering or tendering a copy thereof. Sub-section (2) of this section provides that whenever it may be practicable the service of the notice shall be made on the preson therein named. Sub-section (3) provides.:

'When such person cannot be found, the service may be made on any adult male member of his family residing with him; and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired'.

(8) In his order the Collector observed that the award under S. 11 of the Act was passed by the Land Acquisition officer on 25-6-58 and that

'On the same day, .e. 25-6-58, the L. A. O. ordered that the party be informed under section 12(2) L. A. Act and that the acknowledgments be put up. The notice issued to Jankibai under section 12(2) L. A. Act informing her of the award was affixed to her house, as she was not found at home; and the second copy was returned with an endorsement to ths effect. it is dated 3-7-1958, which shows that the notice was affixed to her residence on that date'.

The Collector therefore held that the notice was served as per the mode laid down in sub-section (3) of section 45 of the Act. He then considered the question whether the period of limitation should be computed from 3-7-58 or fom 13-7-58 which is the date on hich the applicant returned to Nagpur. The Collector observed that there was no reason to disbelieve the report of the serving agency that the notice was affixed to Jankibai's residence on 3-7-58 and therefore, computing the period of limitation from that date the Collector held that the application under S. 18 of the Act was clearly time-barred. He therefore rejected the application.

(9) It is clear from clause (b) of the proviso to S. 18 of the Act that in cases to which that clause applies the limitation is six weeks from the date of receipt of the notice or six months from the date of the Collector's aard, whichever period first expires. This clause refers to the receipt of the notice where-as S. 20 of the Act refers to service of the notice. Section 45 also refers to the mode of service of notices. It is clear from the proviso to S. 18 that the person interested in the award should get six weeks from the date of receipt of the notice of the award and that even if he does not get such a receipt of the notice, in any case the limitation would expire after six months from the date of the award. The intention of the Legislature was to give six weeks' time to the person interested from the date of the award if he was present at the time of the award, and otherwise from the date of the receipt of the notice. But in order to avoid long delay it was also provided that no application should be made after six months from the date of the Collector's award. The act uses two different expressions, namely, 'receipt of the notice' and 'service of the notice' and this distinction cannot be without significance and cannot be ignored. A service of the notice as contemplated in Section 45 would not therefore necessarily amount to a receipt of the notice. The Collector, in my opinion was therefore wrong in holding that limitation started from the date of the service of the notice by affixture on the door of the house of the applicant. It is an admitted fact that the notice was not served personally on Jankibai on 3-7-58. According to the Collector, she was not found at home on that date and therefore the serving officer affixed the notice on the outer door of the house and made an endorsement to that effect. it is clear therefore that limitation cannot run from 3-7-1958 and that the Collector erred in rejecting the application on the ground that limitation started from 3-7-1958.

(10) Even if we turn to Section 45(3) of the Act, it provides that when the person cannot be found service may made on any adult male member of his family residing with him. A copy can be affixed on the outer door of his house only when two conditions are fulfilled: ( I ) the person on whom the notice is to be served cannot be found; and (ii)) no adult male member of the family residing with the person also can be found. According to the report of the serving officer there is no reference to the second requirement. This is conceded by the learned counsel for the oppoent. Service of the notice on he outr door of the house of Jankibai does not therefore fulfil the requirements of Section 45, sub-section (3) of the Act and is therefore not a proper mode of service under that section. Moreover, the serving officer did not report that Jankibai could not be found. The Collector in his order has observed that the notice ws affixed to the house of Jankibai as she was not found at home. The expression 'cannot be found' is not equivalent to 'not found'. A person may not be found at his house at a particular time, but that does not mean that such a person could not be found at his house. Learned counsel for the applicant relies on Hardyal v. Pir Sant Das, 10 Ind cas 242 (Lah) where it was observed that it cannot be said that a person could not be found when no attempt whatsoever has been made to find him and there was nothing to show that he was deliberately keeping out of the way to avoid service but he was merely temporarily absent from his house.

(11) It is also contended by the learned counsel for the applicant that the time required by the applicant to obtain a copy of the award should be excluded from the period of limitation. He relies on Section 29 and Section 12 of the Limitation Act. Sub-section (2) of Section 29 of the Limitation Act provides:

'Where any specialor local law prescribes for any suit, appeal or aplication a period of limitation different from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a) the provisions contained in Section 4, Ss. 9 to 18, and Sec 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remainig provisions of this Act shall not apply.'

The Land Acquisition Act, which is a special law, prescribes for anapplication under Section 18 a special period of limitation different from the period prescribed therefor by the First Schedule to the Limitation Act, and therefore in determining such period of limitation the provision contained in Se4c. 4, Secs. 9 to 18 Section 22 shal apply. One of these sections is Section 12 of the Limitation Act, sub-section (2) of which reads as follows:

'In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and te time requisite for obtaining a copy of the decree, sentence or order appealed from or sougtht to be reviewed, shall be excluded.'

Reliance is also placed on Jijibhoy N. Surty v. T. S. Chettyar Firm, 55 Ind App 161 : AIR 1928 PC 103 where it was held

'Section 12, sub-section (2) of the Indian limitation Act, 1908, which excludes from the period of limitation for appealing from a decree the time 'requisite' for obtaining a copy of it, applies even when by a rule of the High Court a memorandum of appeal need not be accompanied by a copy of the decree. But in my opinion, sub-section (2) f Section 12 refers to an appeal, an application for leave to appeal and an application for review of judgment. An application for reference under Section 18 of the Land Acquisition Act does not therefore attract the application of Sub-section (2) of Section 12 of the Limitation Act.

(12) Reliance is also placed on sub-section (4) of Section 12 of the Limitation Act which reads as follows:

'In compting the eriod of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be execluded.'

and on Burjorjee v. Special Collector, Rangoon AIR 1926 Rang. 135, where it was held that Section 12(4) of the Limitation Act applies to an application to the Cllector to refer a matter to the Court and the applicant is entitled to exclude the time requisite for obtaining the copy of the Collector's award. With great respect, I dissent from this view because sub-section (4) of Section 12 refers to applications to set aside an award such as an award inarbitration proceedings and an application for reference uner Section 18 of the Act cannot therefore be treated as an application to set aside an award. Learned counsel for the non-applicant has cited Secetary of State v. Karim Bux, : AIR1939All130 in support of his contention that time taken to obtain copies of an order under the land Aquisition Act cannot be excluded for the purposes of computing the period of six weeks prescribed by the proviso to Section 18 of the Act. For the reasons already given and, with respect, I agree with the view taken in this Allahabad case.

(13) However, for the reasons already given, the Collector was wrong in the view that the period of six weeks started from 3-7-58. The Collector observed:

'The question, which therefore, arises is whether the period for purposes of the present application should be computed from 3-7-1958, which was the date of its actual affixing on the house, or from some subsequent date on which the N. A. returned to Nagpur.'

The Collector did not observe that it was not proved that Jankibai had returned to Nagpur on 13-7-58. If the notice was received on 13-7-58, her application under Section 18 would be clearly in time. I therefore hold that the Collector erred in holding that the application was barred by limitation and direct that he should make a reference under Section 18 of the Act to the Court.

(14) The application for revision is allowed. There will be no order for costs as the learned counsl for the applicant does not press for costs.

(15) Revision allowed.


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