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Dr. Srinibas Sunder Das Vs. Land Acquisition Collector and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 334 of 1966
Judge
Reported inAIR1970Ori197
ActsConstitution of India - Article 226; Land Acquisition Act - Sections 18; Orissa Land Acquisition (Amendment) Act - Sections 18(3); Limitation Act, 1963 - Sections 5; Code of Civil Procedure (CPC) - Sections 151
AppellantDr. Srinibas Sunder Das
RespondentLand Acquisition Collector and ors.
Appellant AdvocateB.K. Behura, Adv.
Respondent AdvocateAdv. General, ;Ranjit Mohanty, ;R.K. Kar and ;H.G. Panda, Advs.
DispositionApplication dismissed
Cases ReferredSm. Kako Bai v. L. A. Collector. In
Excerpt:
.....his claim and decided in favour of opp. 1 had no option but to make a reference, and in the present case, in refusing to make a reference, he has failed to exercise a jurisdiction vested in him by law. a civil revision could have been filed within ninety days, and as such, even if this writ application is to be treated as a civilrevision, as it was filed beyond the period of limitation, it was clearly barred. therefore, the ground taken by petitioner that he was misled by some earlier decisions of this court and failed to notice an express statutory provision, in our opinion, cannot be treated as a sufficient cause for condoning the delay under section 5 of the limitation act......been filed within ninety days, and as such, even if this writ application is to be treated as a civilrevision, as it was filed beyond the period of limitation, it was clearly barred. the point is whether the delay of about four months is to be condoned under section 5 of the limitation act.5. to obtain condonation under section 5 of the limitation act, petitioner has to show that he- was prevented by sufficient cause from preferring the application within the prescribed period. it is true that a ground, such, as, being misled by a judgment of the high court in ascertaining or computing the prescribed period may be a sufficient cause within the meaning of section 5, but in this case, what is stated is that petitioner was misled by the previous decisions regarding the maintainability of.....
Judgment:

A. Misra, J.

1. This is an application under Articles 226 and 227 of the Constitution to issue a writ of Mandamus or other suitable direction to Opp. party No. 1 to refer the application dated 24-8-65 filed by petitioner Under Section 18 of the Land Acquisition Act, 1894 to the District Judge, Ganjam for disposal according to law.

2. The facts, in brief, are that the Land Acquisition Officer (opp. party No. 1) acquired certain lands in Berhampur in the year 1964 including S. No. 189/B-2. Petitioner coming to learn about this acquisition filed objections by his letter at Annexure B and was called upon to prefer his claim. Accordingly, he filed his claim in respect of 0.14 cents alleging that the said extent of the acquired land in Plot No. 139/B-2 belonged to him. Opposite party No. 1 issued a notice to him on 27-3-65 intimating that the award would be pronounced at Chatrapur on 30-3-65 at 11.00 a. m. Petitioner received this notice at Jharsuguda where he was serving on 30-3-65, and as such, could not attend the office of opp. party No. 1.

Subsequently, coming to learn that the entire compensation for 0.17 decimals, appertaining to plot No. 130/B-2 including 0.14 cents claimed by him had been paid to opp. party No. 2, he filed an application on 24-8-65 before opp. party No. 1 to make a reference to the District Judge, Ganjam Under Section 18 of the Land Acquisition Act. It is alleged that opp. party No. 1 failed to consider his claim and decided in favour of opp. party No. 2 behind his back in a clandestine manner with a view to favour him. Repeated reminders about making a reference Under Section 18 did not get any response, and therefore, petitioner ultimately sent a registered notice with acknowledgement due to opp. party No. 1 on 18-12-65. In reply by his office letter dated 6-1-66 at annexure K/1, petitioner was advised to seek redress in a proper court of law for recovery of the compensation in respect of the acquired land title to which was claimed by him.

Petitioner again wrote to opp. party No. 1 on 15-1-66 to make a reference Under Section 18, but received a reply to the same effect on 29-1-66. Thereafter he asked for copies of orders and other documents, and was informed that free copies could not be granted. Petitioner then applied, obtained certified copies andfiled the present application. According to petitioner, when an application for making a reference Under Section 18 of the Land Acquisition Act was made, opp. party No. 1 had no option but to make a reference, and in the present case, in refusing to make a reference, he has failed to exercise a jurisdiction vested in him by law. Opp. parties, in their counters, have raised various objections, but for disposal of this application, it is not necessary to deal with all of them.

3. Learned counsel for opp. parties Nos. 2 to 4 raised the following preliminary objection to the maintainability of this application. It is pointed out by him that against an order of the Land Acquisition Collector refusing to make a reference Under Section 18 of the Act, a statutory remedy being available and the petitioner not having availed of the same, it is not open to him to invoke the prerogative jurisdiction of the Court. Though the parent Act, 1894 (Land Acquisition Act) is silent regarding the remedy in cases where the Collector refused to make a reference on an application Under Section 18, by addition of subsection (3) to Section 18 of the Land Acquisition (Orissa amendment) Act, 1948, a statutory remedy has been provided as follows:

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

Thus, statutorily so far as this State is concerned, a civil revision is competent against any order of the Collector refusing to make a reference Under Section 18.

It is argued by learned counsel for opp. parties that when such a specific and efficacious statutory remedy was available to the petitioner and he did not avail of it within the prescribed period of limitation, it is not open to him to invoke Court's prerogative jurisdiction to grant him relief which will practically amount to circumventing the bar of limitation which the petitioner is confronted with.

Mr. Behura, learned counsel for petitioner on the other hand, contends that at the time he filed the writ application, he was not aware of the aforementioned Orissa amendment to the Land Acquisition Act and was honestly under the impression that his only remedy lay in approaching the Court by filing a writ application, in view of the two previous decisions of this Court, one a single Judge decision reported in AIR 1952 Orissa 98, Samanta Badhaprasanna v. Province of Orissa followed by a Division Bench in the decision reported in AIR 1961 Orissa 39, Kasiviswanadham v. Sub Collr., Berhampur. In those cases, the order of the Collector refusing to make a reference Under Section 18 was set aside in exercise of powers under Article 227 of the Constitution.

A persual of these decisions shows that unfortunately attention of their Lordshipswas not invited to Orissa Act XIX of 1948 by which Sub-section (3) of Section 18 providing a civil revision against such orders was inserted. Therefore it cannot be said that after considering the statutory provision introduced by the amending Orissa Act their Lordships held that such an order is amenable to the writ jurisdiction of the Court, nor will it be correct to say that petitioner or his learned Counsel was misled by the aforesaid decisions, in spite of the existence of the statutory provision introduced by the amending Orissa Act.

This question came up for consideration again before this Court in (1968) 34 Cut LT 173 = (AIR 1968 Orissa 94), Mahanta Narayan Das y. Kashinath Pani where it was held that as a result of the Orissa amendment, a civil revision against an order refusing to make a reference under Section 18 is competent. Hence, it cannot be disputed that by addition of Sub-section (3) to Section 18 of the Land Acquisition Act by the Orissa amendment a specific and efficacious remedy has been provided for against orders of the Land Acquisition Collector refusing to make a reference under Section 18 of the Act. Therefore, when such a remedy is in existence and was available to the petitioner to come by way of a civil revision against the order of the Collector, prima facie, this writ application is not maintainable.

4. During the course of hearing Mr. Behura, learned Counsel for petitioner fifed two applications, one under Section 151, Civil Procedure Code and the under Section 5 of the Limitation Act praying under the former to convert and treat the writ application as a civil revision and. under the latter, to condone the delay in entertaining it as a civil revision, as by the date of filing the writ application, a civil revision was also barred. In support of it, he relies on a decision reported in AIR 1956 Punj 231, Sm. Kako Bai v. L. A. Collector. In that case, the application under Article 226 of the Constitution challenging the order of the Collector was treated as a civil revision, in view of a similar amendment that had been made in that State providing for civil revision. In that case, however, the question of limitation did not arise, and therefore, the facts of the present case cannot be treated on the same footing as in that case. Here, admittedly, the award was made on 30-3-.65 and the application for reference under Section 18 was made by petitioner to the Collector on 24-8-65. It is also not disputed that by his letter dated 3-1-1966 received by petitioner on 6-1-1966, he was informed of the refusal to make a reference. The present writ application was filed on 3-8-1966 i.e., about seven months after intimation of refusal by the Collector to make a reference. A civil revision could have been filed within ninety days, and as such, even if this writ application is to be treated as a civilrevision, as it was filed beyond the period of limitation, it was clearly barred. The point is whether the delay of about four months is to be condoned under Section 5 of the Limitation Act.

5. To obtain condonation under Section 5 of the Limitation Act, petitioner has to show that he- was prevented by sufficient cause from preferring the application within the prescribed period. It is true that a ground, such, as, being misled by a judgment of the High Court in ascertaining or computing the prescribed period may be a sufficient cause within the meaning of Section 5, but in this case, what is stated is that petitioner was misled by the previous decisions regarding the maintainability of a writ application. At any rate, after the decision of this Court in (1968) 34 Cut LT 173 = (AIR 1968 Orissa 94) there was no further reason for the petitioner to entertain any erroneous impression regarding the remedy open to him against such orders. Even thereafter, petitioner did not take any steps for applying for conversion of the writ application into a civil revision, but waited for near about two years for which he has not shown any sufficient case to file the application under Section 5 of the Limitation Act to condone the delay.

Therefore, the ground taken by petitioner that he was misled by some earlier decisions of this Court and failed to notice an express statutory provision, in our opinion, cannot be treated as a sufficient cause for condoning the delay under Section 5 of the Limitation Act. Accordingly, we reject both the applications filed by the petitioner under Sections 151, Civil Procedure Code and 5 of the Limitation Act. As we agree with learned Counsel for opposite parties that the remedy available against the collector's order refusing to make a reference was to come by way of a civil revision and petitioner did not avail himself of the same within the period of limitation, he is not entitled to any relief by invoking the prerogative jurisdiction of this Court.

6. In the result, we find no merit in this application which is accordingly dismissed, but in the circumstances, without costs.

Patra, J.

7. I agree.


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