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Kunhibi Vs. Land Acquisition Officer, Kozhikode - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 298 of 1958
Judge
Reported inAIR1960Ker80
ActsLand Acquisition Act, 1894 - Sections 18; Limitation Act, 1908 - Sections 12
AppellantKunhibi
RespondentLand Acquisition Officer, Kozhikode
Appellant Advocate T.K. Lekshmana Iyer and; T.L. Viswanatha Iyer, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredIn Secy. of State v. Karim Bux
Excerpt:
.....barred by limitation unless petitioner entitled to exclude time spent for obtaining copy of award - such time should not be excluded - petition dismissed as time could not be extended. - - this principle is well recognised (see umia shankar lakhmi ram v. when however, as here, the words of the statute are perfectly plain, we have the highest authority for holding that a so-called 'equitable construction' is not permissible, no matter what the apparent hardship may be. but their lordships think statutes of limitation, like all others, ought to receive such a construction as the language in its plain meaning imports. but the later opinion entertained by the lahore high court in air 1927 lahore 858 is a better opinion than the decision of the burma high court in air 1926 rangoon..........of the indian limitation act, 1908, provides that suits, appeals and applications filed after the period of limitation prescribed therefor by the first schedule to the act shall be dismissed. section 29(2) says :'where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribing therefor by the first schedule the provisions of section 3 shall apply, as if such period were proscribed 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, sections 9 - 18, and section 22 shall apply only in so far as, and to the extent to which, they ave not expressly excluded by such.....
Judgment:

M.S. Menon, J.

1. The petitioner and her sister, Pathummabi, owned an item of property, T. S. No. 92/6, Block 4, Ward 10, within the Calicut Municipality. The said item has been acquired by this State under the provision of the Land Acquisition Act, 1894. Pathummabi, it is alleged has relinquished her share of the compensation in favour of the petitioner and informed the respondont, the Land Acquisition Officer, Kozhikode, that the entire compensa-tion may be paid to the petitioner.

2. The petitioner moved the respondent to make a reference under Section 18 of the Land Acquisition Act, 1894; but he rejected the application on the ground that it was filed out of time. Many of the facts relevant to the consideration of the question of limitation are in dispute and it is impossible for me to evaluate the truth or otherwise of the statements made by the petitioner and denied by the respondent.

3 According to the respondent the award wan made on 10-11-1956, notice thereof under Section 12(2) of the Act was served on the petitioner on 23-11-1956 and the application for a reference under Section 18 of the Act was received only on 5-1-1957. If these dates are correct--and I have to assume that they are correct -- the petition, it is agreed, is barred by limitation unless the petitioner is entitled to exclude the time spent for obtaining a copy of the award.

4. It is also agreed that the petitioner's application for a copy of the award was received on17-12-1956, that a copy was issued only on 22-12-1956, and that if she is entitled to an exclusion of the time spent in obtaining the copy, the application for a reference was within time and should have been allowed. The short question, therefore, that arises for decision is whether the petitioner is entitled to an exclusion of the period from 17-12-1956 to 22-12-56.

5. Section 18(1) of the Land Acquisition Act, 1894, states :

'Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collect or, for the determination of the Court whether his objection be to the measurement of the land, the amount of the compensation, the per-eons to whom it is payable, or the apportionment of the compensation among the persons interested.'

Sub-section (2) of that section provides that 'the application shall state the grounds on which objection to the award is taken' and the proviso to that sub-section deals with the time within which the application should be made. It is agreed that the period within which the application should have been filed in this ease was 'within six weeks of the receipt of the notice from the Collector under Section 12, Sub-section (2)' of the Act.

6. Section 3 of the Indian Limitation Act, 1908, provides that suits, appeals and applications filed after the period of limitation prescribed therefor by the first schedule to the Act shall be dismissed. Section 29(2) says :

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribing therefor by the first schedule the provisions of Section 3 shall apply, as if such period were proscribed 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, Sections 9 - 18, and Section 22 shall apply only in so far as, and to the extent to which, they ave not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply'; and Section 12(4) -- the provision on which the petitioner relies :

'In computing the period of limitation prescrib-fed For an application to set aside an award, the time requisite for obtaining a copy of the award, shall be excluded.'

7. Apart from arguments based on disputed questions of fact the only contention urged on behalf of the petitioner is that Section 12(4) is attracted. A similar contention was urged and negatived in Bhagwan Das v. Collector, Lahore 133 Pun LR 1904 p. 468.

The court said :

'There remains for consideration the fourth paragraph of Section 12 of the Limitation Act. Here again we find it impossible to hold that an application under Section 18(1) of Act I of 1894 falls under Section 12 of the Limitation Act as an application to set aside an award. It is according to the plain language of the sub-section, nothing of the sort. The person who has not accepted the award, no doubt, wishes to have it set aside, but he is com-pelled for this purpose to adopt the procedure laid down by law and to apply to the Collector not to set aside the award, for this is a power which the provisions of the Act do not confer upon the Collector, but to refer the matter to the Civil Court.

Mr. Grey ingeniously argued that inasmuch as the very object of the application is to have the award set aside and as in such cases the application is in reality one made to the court, the Collector having no option but to refer the matter as prayed, the application is in all but letter an application to set aside an award, and that we should be justified in so holding upon the principle that statutes of Limitation being restrictive of ordinary legal rights should as far as possible be construed in favour of the right to proceed.

This principle is well recognised (See Umia Shankar Lakhmi Ram v. Chhotalal Vajeram, ILR l Bom 19 at p. 22, and Lallubhai v. Naran, ILR 6 Bom 719 at p. 724 (FB)) but it can be applied only in cases of doubt and of ambiguity of language. When however, as here, the words of the Statute are perfectly plain, we have the highest authority for holding that a so-called 'equitable construction' is not permissible, no matter what the apparent hardship may be.

'The Statute' -- i. e., of limitation -- say their Lordships of tho Privy Council in Luchmee Buksh Roy v. Runjeet Ram, 20 Suth WR 375 at pages 376-877 'must receive a construction according to its plain words -- It has been said that this case Ought to be decided upon an equitable construction, and not upon the strict words of the Statute; but their Lordships think Statutes of Limitation, like all others, ought to receive such a construction as the language in its plain meaning imports. Statutes of Limitation are in their nature strict and inflexible enactments.'

8. In Collector of Akola v. Anand Rao, 11 Ind Cas 690 (Nag) the contention was negatived in the following words :

'The grounds on which an award of arbitrators can be set aside are very different from those on which a reference to the Court under Section 18 of the Land Acquisition Act can be demanded, and beyond the fact that the word 'award' comes into both there is no similarity between the two proceedings. Indeed, as their Lordships of the Privy Council point out in Ezra v. Secy, of State, ILR 32 Cal 605: 32 IA 93 (PC), the so-called award of the Collector is 'merely' a decision binding only on him as to what sum shall be tendered to the owner of the lands.' I am unable therefore, to accept the contention that the time required for obtaining a copy of the Collector's award should be excluded.'

9. H. N. Burjorjee v. Special Collector of Rangoon, AIR 1926 Rang 1,35 is a case in which the contention was accepted :

'It may be argued that an application to the Collector to refer the matter to the court is not an application to Court.

The Land Acquisition Act does not lay down any direction by which the party interested in the land acquired can apply direct to the court. And once the application is made to the Collector to refer the matter, to Court, he has no discretion in the matter and must make the reference. To me it appears that this is only a round about way of enabling the party interested to make application to the Court; and that the Collector for the purposes of the Act is only a conduit pipe. An application to the Collector to refer to Court must be taken as equivalent to an application to Court.

I do not think it was the intention of the Legislature to deprive any owner of land or party interested in it which has been acquired, of his right to apply to the Court against the award of an Administrative Officer, the Land Acquisition Collector. On the Collector refusing to make the reference, the petitioner has no right of action against the special Collector and no other remedy (Leslie v. Collector of Mergul, 1 LOW Bur Rul 132) and the relief given by this court will be adequate find complete. If my view is correct, then it follows that the time taken in applying for copies must be added to the six weeks statutory period.'

10. In Secy. of State v. Karim Bux, AIR 1939 All 130 the court said :

'The President following a case in the Burma High Court held that such time should be excluded. This court has taken a contrary view in Kashi parshad v. Notified Area, Mahoba, AIR 1932 All 598, which followed the caso in Nasif-ud-din v. Secy. of State, AIR 1927 Lah 858. Before us it was not contended that the time taken to obtain copies of the order should be excluded in computing the time within which a reference must be made.'

The decision of the Burma High Court followed by the President must be AIR 1926 Rang 135.

11. AIR 1927 Lah 858 followed 133 Pun LR 1904 p. 468 and dealt with the AIR 1926 Rang 135 as follows :

'This to some extent supports the learned Advocate. But after a careful consideration and with all respect to the learned Judge who was responsible for that decision, I am unable to accept it as) an authority against the Division Bench decisions' of the Chief Court that have already been cited.'

In AIR 1932 All 598 the court said:

'We can read an application for reference under Section 18, Land Acquisition Act, as coming within the purview of Section 12, Limitation Act, only by materially modifying the language of Section 12.'

And:

'On this point, again, there is some conflict of opinion; but the later opinion entertained by the Lahore High Court in AIR 1927 Lahore 858 is a better opinion than the decision of the Burma High Court in AIR 1926 Rangoon 135. I agree with the decision of the Lahore High Court and hold that the time could not be extended.'

Apparently the provision invoked in this case was Section 12(2) and not Section 12(4) of the Indian Limitation Act, 1908.

12 I am inclined to hold that the correct view is the one expressed in 133 Pun LR 1904 p. 468 and the judgments that adopt the reasoning embodied therein. It follows that this petition has to bo dismissed.

13. The petition is hereby dismissed thoughin the circumstances of the case without any orderas to costs.


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