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Secy. of State Vs. Bhagwan Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All769
AppellantSecy. of State
RespondentBhagwan Prasad and anr.
Cases ReferredEzra v. Secy of State
Excerpt:
.....entitled to refuse to adjudicate on a reference where the collector had not been at all asked to make a reference and yet bad made a reference on the assumption that a reference had been required. the award has the date '15th june 1923' endorsed on it. (2) the reference made by the collector was without jurisdiction and should not have been entertained by the learned district judge, whose decree passed in proceedings which followed is bad in law. if 'the date of the collector's award' be taken to be the date found endorsed on the award, the applications made by the respondents under section 18 were beyond limitation. reading the two sections together, i am clearly of opinion that the court has no alternative but to act on the reference made by the collector. i am also of opinion that..........the filing of the award and in that case, the applications of the respondents to the collector to make reference were within time.22. in the result, the appeal fails and i would dismiss it with costs.niamatullah, j.23. the facts are fully stated in the judgment of the hon'ble mukerji, j. the award has the date '15th june 1923' endorsed on it. it is not, however, known when it was announced or 'filed' as required by section 12, land acquisition act, or, apart from the notice to be presently mentioned, when it was communicated to the respondents, to whose land (acquired under the act) it related. notices were ordered by the collector to be issued to the respondents on 30th october 1923. they were served on bhagwan prasad and mt. anandi kunwar, respondents, on 18th january 1924 and 23rd.....
Judgment:

Mukerji, J.

1. This is an appeal by the Secretary of State for India in Council and arises out of a decree of the learned Subordinate Judge of Mirzapur acting as the 'Court' within the meaning of Clause (d), Section 3, Land Acquisition Act, 1884.

2. The plea in appeal is that the reference by the Collector was made on a belated application of the respondents and the reference should have been thrown out by the learned Subordinate Judge.

3. The facts briefly are as follows: The award made by the Collector in the case bears the date 15th June 1923. It could not be traced, that at any rate is my reading of the judgment of the Court below and the learned Government Advocate has not been able to state the date when the award was actually filed in the office of the Collector. Notices were ordered to be issued, by the Collector, to the two owners on 30th October 1923. They were actually served on Bhagwan Prasad on 18th January 1924, and on Mt. Anandi Kunwar on 23rd January 1924. The owners applied for a reference being made to the Collector, within six weeks of the service of notice on them. A reference was accordingly made. A preliminary objection was taken on behalf of the Collector that the reference was time barred. The learned Judge refused to entertain the plea of limitation raised by the present respondent and held that it was not open to him to consider whether the reference was barred by time and he investigated the case and decided what was the amount payable to the owners.

4. As I have already stated, the plea on behalf of the appellant is that the reference should have been thrown out by the learned Judge as barred by time.

5. On behalf of the respondents it has been urged firstly, that the learned Judge was right in holding that he could not throw out the reference and that, in any case, the reference was within time.

6. It will be noticed that under Section 18, Land Acquisition Act, an application by a person who has not accepted the award to make a reference to the Court must be made within a specified period. This period, in the case of the owners who were not present when the award was made is:

within six weeks of the receipt of the notice... or within six months from the date of the Collector's award, whichever period shall first expire.

7. It is clear that the maximum period allowed for making a petition to the Collector is six months from the 'date of the award.' This maximum period is liable to be cut short, if there is a service of notice by the Collector, concerning the award, on a party interested in making the application. In the case of service, the time allowed is six weeks from the service, provided those six weeks do not go beyond the six months already mentioned, from the date of the award.

8. The contention of the learned Government Advocate is that the award having been made on 15th June 1923, the period of limitation for the application by the owners, expired on 15th December 1923, and the mere fact that notice on them was not served till after the expiry of the limitation was immaterial.

9. The first point that arises is whether the 'Court' had any jurisdiction to review the proceedings of the Collector in making the reference.

10. The scheme of the Land Acquisition Act has been considered by their Lordships of the Privy Council in Ezra v. Secy. of State [1905] 32 Cal. 605 vide pp. 628 and 629: This judgment and a consideration of all the sections of the Act will show that when the Government decides to acquire a piece of land, it is required to pay a price to the owner. That price is investigated by the Collector on behalf of the Government and as its agent. In making the award, the Collector offers a certain price to the owners of the property. It is for the owners to decide whether they would accept the price or they would require a judicial determination of the price by an independent authority, namely the Court: vide Section 12 and Section 18. On receipt of an application 'by any person interested who has not accepted the award' the Collector is to decide for himself whether he would make a reference to the Court: vide Section 18. If he decides that he would make a reference, he has to proceed in the manner laid down in Section 19 of the Act. When the reference has been made, it would be the 'Court's' duty to issue notice, after fixing a date for determination of the objections taken by the applicant before the Collector. In certain circumstances a notice will have to be given to the Collector also: vide Section 20. It will be noticed that neither Sections 18 to 20 nor any other provision of the Land Acquisition Act, anywhere state that the Court is entitled to go behind the reference and to see whether the Collector acted or not properly in referring the matter to the Court. The Court is required to decide the grounds on which the applicant objects to the award: see Section 18(2).

11. If we remember the scheme of the Act as declared by their Lordships of the Privy Council in Ezra's case [1905] 32 Cal. 605, already quoted, the Collector is the agent or mouthpiece of the Government. After the notification as to acquisition has issued, it is for him to assess the value and offer it to the owner of the land. If the owner do not accept the offer and requires the Collector to make a reference to the 'Court' for a judicial determination of the value of the land, the Collector has to see if, in the circumstances of the case, it is his duty as laid down in Section 18 of the Act, to make a reference. If the application is beyond time, the Collector need not make a reference. For the purpose of determination as to whether the application is within time, the Collector has to consider the facts and to come to a decision. If he decides that the application is within time and otherwise in order, he will make a reference. It is entirely for him and him alone to decide whether he will make a reference. When he makes the reference, he makes it on behalf of the Government. Having made the reference, in my opinion, it is not open to the Collector or for the matter of that, the Secretary of State, to say that the reference was wrongly made, although the ground for saying so may be that the application by the owner was belated. The 'Court' does not sit on appeal over the Collector and the Land Acquisition Act does not give any authority to the 'Court' either in express term or by implication, to go behind the reference and to see whether the Collector acted rightly or wrongly. I am aware of the fact that sometimes the plea of limitation as in this case, is taken on behalf of the Collector or the Secretary of State, but in my opinion, such a plea should not be allowed to be taken.

12. No case has been cited to us in which the question, now before us, may have been considered, viz., whether it is open to the 'Court' to sit in appeal, as it were, over the act of the Collector. No doubt, in the matter of Government of Bombay [1906] 30 Bom 275 it was held that where the Collector made a reference, on an application to him made beyond time, the reference was ultra vires of the Collector and the owner's objections could be dismissed. With all respect, I am unable to accept this view. I have already pointed out that to allow the Collector to plead limitation to his own reference, would be to allow him to blow both not and cold, to quote a homely phrase. The learned Judge in 30 Bombay, says at the top of p. 288:

I am of opinion, therefore, that there was no substantial compliance by the claimants with the conditions for a reference prescribed in Section 18 of the Act; that the Collector had no power to make the reference and that it is ultra vires.

13. It was for the Collector and Collector alone to decide whether he should make a reference and the 'Court' had no authority under the Act to throw out the reference on the objection of the very party making the reference. As regards the question of ultra vires, it cannot be denied that it is for the Collector and Collector alone to decide whether he would make the reference. Thus, the making of a reference is an act within the jurisdiction and authority of the Collector. No doubt, he has certain rules to guide him. If after considering the rules and the application before him, he decides to make a reference, the reference cannot be questioned by the Court. The Collector may make a mistake in the use of his discretion, but he is entitled to decide rightly or wrongly. If he decides to make a reference, his act is within his jurisdiction, for he is entitled to act either way, i.e., either to make a reference or not to make a reference. In my opinion, therefore, the action of the Collector cannot be said to be ultra vires. The case in 2. L.R. 30 Bom., 275 received, but scant support from the Calcutta Judges in Mahananda Pal v. Secy. of State [1920] 24 C.W.N. 716.

14. In Sukhbir Singh v. Secy. of State : AIR1926All766 two learned Judges of this Court held that a District Judge was entitled to refuse to adjudicate on a reference where the Collector had not been at all asked to make a reference and yet bad made a reference on the assumption that a reference had been required. The appeal in this Court was on behalf of the owners themselves. They not having ever asked the Collector to make a reference, could, but with ill grace, say that the Judge was bound to hear the reference. The learned Judges did not consider what authority the District Judge (the Court) had to consider the propriety of the Collector's act which alone gives the Judge jurisdiction. This case is easily distinguishable.

15. I am of opinion that the decision of the Court below is entirely right, namely, it was not open to it to go behind the reference and to see whether the reference was made in pursuance of a belated application.

16. The second point taken on behalf of the respondents is that as a matter of right interpretation of Section 18, the petition of the respondents, under that section, before the Collector, was within time.

17. The argument is this. Under Cl (b), Sub-section (2), Section 18, the application has to be made within six months from the date of the award. I may remind, here that by the Collector's own default, the issue of notice to the opposite parties was of no advantage to them, for the service was made after the alleged expiry of the period of limitation. To go back to the point under discussion, his question is, what is the date of the Collector's award? Is the date when the award is made, the date of the award or whether the date when the award is filed before the Collector, the said date? Section 11 of the Act requires the Collector to make an award under his hand. It is significant that it does not make any mention of the date of making the award. In other words, the section does not require the Collector to date the award. Section 12 requires that the award shall be filed in the office of the Collector and then provides that a notice would forthwith be issued to the persons interested. The notice is to issue only after the filing of the award. Then, the question is whether the starting point of limitation is the date of the making of the award or is the date of filing of the award? As already mentioned. Clause (b), Sub-section 2, Section 18 is silent as to which would be the date of the Collector's award.

18. The Collector being an executive officer has to move about his district. It is impossible to say at what place he would prepare his award. He may take time after making the enquiry or he may make private enquiries after a more or less public investigation as to the value has been made. In Ezra's case [1905] 32 Cal. 605 their Lordships of the Privy Council pointed out that it was open to the Collector to hold private enquiries as to the value of the land. It is, therefore, impossible always to require the Collector to make his award at the headquarters. The most important point therefore that the law considers is the filing of the award. When the award is filed in the Collector's office, it is open to inspection by any member of the public, at least by the persons interested. If the limitation is to start, it ought to start from the date of the filing of the award and not from the making of it. The expression, 'date of the award' being indefinite, I am of opinion that the respondent is right in contending that the legislature meant the date of the filing of the award to be the date contemplated in Clause (b), sub-8. (2), Section 18.

19. This view finds support from the case of Kooverbai Sorabji Manekji v. Asst. Collector, Surat : (1920)22BOMLR1136 :

20. The head note is as follows:

An award made by a Collector... becomes final and binding only when it is filed under Section 12, Land Acquisition Act, the mere signing of the award by the Collector does not make it conclusive. Before filing am award, it is open to the Collector to destroy one which he has already signed and to substitute another in its place.

21. As already stated before, the date of the filing of the award could not be traced. Evidently, the award was not filed immediately after it was made, for we find that the notices were not ordered to be issued till 30th October 1923. In the absence of any earlier date, we must take 30th October 1923 as the date of the filing of the award and in that case, the applications of the respondents to the Collector to make reference were within time.

22. In the result, the appeal fails and I would dismiss it with costs.

Niamatullah, J.

23. The facts are fully stated in the judgment of the Hon'ble Mukerji, J. The award has the date '15th June 1923' endorsed on it. It is not, however, known when it was announced or 'filed' as required by Section 12, Land Acquisition Act, or, apart from the notice to be presently mentioned, when it was communicated to the respondents, to whose land (acquired under the Act) it related. Notices were ordered by the Collector to be issued to the respondents on 30th October 1923. They were served on Bhagwan Prasad and Mt. Anandi Kunwar, respondents, on 18th January 1924 and 23rd January 1924, respectively. Being dissatisfied with the amount of compensation awarded to them, they appealed under Section 18, Land Acquisition Act, to the Collector for making a reference to the District Judge, on 12th February 1924 and 4th March 1924, respectively, i.e., within six weeks from the service of the notices on them but more than six months from 15th June 1923, the date noted on the award.

24. On the facts stated above, two contentions have been put forward on behalf of the Secretary of State for India in Council, the appellant before us:

(1) The applications made by the respondents demanding reference under Section 18, Land Acquisition Act wore made to the Collector after the expiry of the limitation period prescribed therefor by Section 18(2) proviso, and as a consequence thereof.

(2) The reference made by the Collector was without jurisdiction and should not have been entertained by the learned District Judge, whose decree passed in proceedings which followed is bad in law.

25. Provisions of the Land Acquisition Act immediately bearing on the questions raised by the aforesaid contentions are those contained in Sections 18 and 20 of that Act. The former requires a person interested, who has not accepted the award, to apply to the Collector demanding a reference to the Court for the determination of the amount of compensation. As regards the period of limitation, the proviso to it lays down that the application for reference 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 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.

26. As already mentioned, if the period of limitation applicable to the present case be taken to be six weeks from the receipt of notice, the application to the Collector was within time. But the section provides that the application should be made within six months from the date of the Collector's award, if it expired first. If 'the date of the Collector's award' be taken to be the date found endorsed on the award, the applications made by the respondents under Section 18 were beyond limitation. The Collector did entertain the applications either ignoring the question of limitation altogether, or holding, rightly or wrongly, that they had been presented before him within limitation. Section 20 of the same Act provides that the Court shall, on receipt of the reference, cause a notice, specifying a day on which the Court will proceed to determine the objections and directing their appearance before the Court on that day, to be served on the applicants. Reading the two sections together, I am clearly of opinion that the Court has no alternative but to act on the reference made by the Collector. The provisions of Section 20 are mandatory, and the Court has no power to scrutinize the regularity of the proceedings before the Collector or the correctness of the view taken by the Collector, of the question of limitation relating to the application which moved him to make the reference. It was the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so. If he decides the question of limitation one way or the other, the Act does not allow an appeal against his decision to the District Judge, the High Court or any other superior authority. If the Collector refuses to make a reference, holding that the application made to him for such reference had been made beyond the period of limitation prescribed, it is obvious that the aggrieved person, the owner whose land was acquired, could not have challenged his view before any tribunal. The Secretary of State, likewise, cannot question its correctness, if on the question of limitation the Collector's view is adverse to him and if he makes a reference to the Court. The functions which the Collector performs under the Land Acquisition Act are administrative and not judicial: Ezra v. Secy of State [1905] 32 Cal. 605. I am, therefore of opinion that the Court cannot go behind the reference to ascertain whether the applications in pursuance of which it was made were within limitation or otherwise, and consequently into the question whether the Collector should or should not have made the reference which he did. The reference having been made, a starting point is furnished to the Court, which must take proceedings as required by Section 20, Land Acquisition Act.

27. Assuming it is permissible for the Court to decide the question of limitation in reference to the application made by the owner of the land acquired under Section 18 of the Act, I agree with my learned brother that 'the date of the award' has not been ascertained in this case. I am also of opinion that the expression the date of the award' does not refer to the date endorsed on the document called award, as denoting the time when it was signed by the Collector. The words 'the Collector's award mean the act of the Collector awarding compensation. The word 'award' as it occurs in Section 18 is an abstract noun. The date of the award, therefore, is the date on which the Collector awards to the claimant the compensation for the land acquired under the Act. The Collector may sign his award in his private office where he might have prepared it: but that will not be the date when he 'awards' compensation. A certain amount of mutuality is implied in the act of awarding compensation to the person whose land has been acquired and who may accept it or refuse to do so. If the claimant is present before the Collector in person or is represented by an authorized agent when the award is made, i.e., when the amount of compensation is declared to him, the law provides reasonable period of six weeks: vide Clause (a). If he is not to present, the law provides a longer period of six months from the 'date of the award,' i.e., the date on which a formal declaration is made by the Collector of the amount of compensation and of the person to whom the same is payable. This period, however, is curtailed if the six weeks following a notice required by Section 12(2) expires before the expiry of the six months from 'the date of the award.'

28. Sections. 9 and 11 of the Act make it incumbent on the Collector to fix a date for enquiry and the 'making of the award,' of which date due notice must be given to all persons interested in the proceedings. It follows that the formal declaration of the amount awarded is to be made on a date made known to claimant, who can, if he chooses to be present to receive the award, and if he puts in appearance, the law gives him only six weeks, as already stated, but if he does not, an indulgence is given to him in the matter of limitation by giving the extended period of six months from the date the award is pronounced. It is not too much to expect that the person interested should turn up within a reasonable time after the date fixed for the making of the award, if he does not choose to be present on the date itself. With the utmost respect for nay learned colleague, I am unable to agree with him that 'the date of the award' is the date on which it is filed in accordance with the provisions of Section 12, Land Acquisition Act. A comparison of Sections 11 and 12 will show that the date of making an award is meant by the Act to be different from the date on which the award is to be filed. Section 18(2) proviso refers to the former.

29. It was contended on behalf of the respondents that the date of the award is the date on which the amount of compensation awarded is communicated to the owner of the land. I am unable to accept this contention either. There is nothing in the Act which justifies this interpretation of the simple words' the date of the award.'

30. The record, as it stands, does not show whether the Collector had fixed any date for the proceedings and the making of the award of which due notice might have been given under Section 9 of the Act, nor does it appear that he made an award' in the manner laid down by Section 11, which I take to imply that the Collector should formally declare the amount of compensation and other incidental matters referred to in Section 11, such declaration being the culminating stage of the proceedings to be taken under that section on the date fixed therefore. Under these circumstances the appellant, the Secretary of State, has, in my opinion, failed to establish that the respondents made their applications under Section 18. Land Acquisition Act, after the expiry of the period of limitation prescribed for them. For the reasons stated above, I concur in dismissing the appeal with costs.


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