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Shree Madansinhji Saheb of Kutch Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 313 of 1961
Judge
Reported inAIR1963Guj175; (1963)GLR609
ActsLand Acquisition Act, 1894 - Sections 18, 19 and 20
AppellantShree Madansinhji Saheb of Kutch
RespondentState of Gujarat
Appellant Advocate K.N. Mankad, Adv.
Respondent Advocate A.D. Desai, Asst. G.P.
DispositionApplication allowed
Cases ReferredMangalbhai Revabhai v. Kalyanpuri
Excerpt:
.....jurisdiction not determinable by court in case of such reference - court must determine case on merits - held, district court cannot go into question of validity of reference while exercising jurisdiction under section 20. - - it would be like a high court judge saying that the high court charter creating the high court is itself invalid. as the collector himself did not decide the point and leftit to the decision of the district court, the district court had to decide this question and the question whether the district court had power to decide the point of limitation or not had not, therefore, clearly arisen for decision. as already observed, it will be like a high court judge exercising jurisdiction over the high court charter to hold that the high court charter is itself..........case is distinguishable on facts because the collector himself had requested the district court to decide the question whether the application for a reference was within time or not. as the collector himself did not decide the point and leftit to the decision of the district court, the district court had to decide this question and the question whether the district court had power to decide the point of limitation or not had not, therefore, clearly arisen for decision. however, the learned judges of the bombay high court made the following observations on the point:'there has been a conflict of opinion in the high courts in india on' that question. in in re. land acquisition act, ilr 30 bom 275, mr. justice chandavarkar held that the court was bound to go into the question wither the.....
Judgment:
ORDER

V.B. Raju, J.

1. In a Land Acquisition Case a reference was made by the Collector to the District Court at Bhuj. The learned District Judge rejected the reference holding that it was barred by time and that that was not a valid reference. He, therefore, refused to hear the reference and hence this revision application. It is contended by-the learned counsel for the applicant that once a reference is made by a Collector under Section 19 of the Land Acquisition Act to the District Court, the District Court has no-jurisdiction to decide whether the reference is within limitation or whether the reference was in conformity with the provisions of Section 18 of the Land Acquisition Act.

2. In support of this contention, the learned counsal for the applicant relies on Hari Krishan v. State of pepsu; , Venkateswaraswami v. Sub-Collector, Pezwada, AIR 1943 Mad 327, Secretary of State v. Bhag-wan Prasao : AIR1929All769 , and Secretary of State v. Bhagwan Prasad : AIR1932All597 . But the learned counsel for the opponent disputes this proposition and relied on Mahadeo Krishna v. Mamialdar of Alibag, ILR 1944 Bom 90 : (AIR 1944 Bom 200) G. J. Desai v. Abdul Mazid Kadri, 53 Bom LR 257: (AIR 1951 Bom 1561 and In the matter of Government and Nanu Kothare, ILR 30 Bom 275 (FB). To decide this point, it is necessary to refer to the relevant provisions of the Land Acquisition Act. Section 18 reads as follows:

Reference to Court:-- (1) 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, whether his objection be to the measurement of me land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons Interested.

(2) The application shall state the grounds on which objection to the award is taken;

Provided that every such application shall be made:--

(a) If the person making it was present or re presented before the Collector at yhe 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 the Collector's award, whichever period shall first expire.'

Section 19 of the Act reads as follows:

'Collector's statement to the Court.-- (1) In makingthe reference, the Collector shall state for the information of the Court, in writing under his hand-

(a) the situation and extent of the land, with parculars of any trees, buildings or standing crops thereon;

(b) the names of the persons who he has reason to think are interested in such land;

(c) the amount awarded for damages and paid or tendered under Sections 5 and 17, or either of them, and theamount of compensation awarded under Section 11; and

(d) if the objection be to the amount of the compensation, the grounds on which the amount of compensationwas determined.

2. To the said statement shall be attached a schedule giving the particulars of the notices served upon,and of the statements in writing made, or delivered by the parties interested respectively.'

Section 20 of the Act reads as follows:

'Service of notice.- The Court shall thereuponcause a notice specifying the day on which the court will proceed to determine the objection, and directing their appearance before the Court on that day, to he served on the following persons, namely-

(a) the applicant;

(b) all persons interested in the objection, except such (if any) of them as have consented without protest to receive payment of the compensation awarded; and

(c) if the objection is in regard to the area or the land or to the amount of compensation, the collector.'

3. Both the different points of view have been elaborately discussed in AIR 1958 Punj 430 and the weighty reasons given by Sir John Beaumont, Chief Justice, in ILR 1944 Bom 90 : (AIR 1944 Born 200) had also beenconsidered. I will not repeat the reasoning containedIn . But if we look at the scheme of the Act, it is clear that the Collector as an Administrative Officer makes a reference to the Court to decidecertain objections to the amount of compensation. Indeciding the objection itself, the Collector who has administratively passed an award makes a reference to the Judicial Court. In making a reference, he has only got to state the points mentioned in Section 19 of the Act. It is not necessary for him to set out whether a written application has been given to the Collector under Section 18or that the application that was given to him was made within six weeks from the date of the Collector's award or within six weeks of the receipt of the notice as stated in Section 18.

4. Even when it is held that the District Court has jurisdiction to determine whether the collector acted rightly in making a reference or not, the District court will have to call for materials to decide that point from the Collector. The District Court has no such powers to call, the Collector to furnish the materials outside the ambit of Section 19 of the Act.

5. Moreover, Section 20 of the Act is mandatory. Alter a reference is received, the Court has got to act as provided in Section 20. The Court has no option but to act under Section 20 after a reference has been received.

6. The District Court gets jurisdiction under Part IIIof the Act only upon a reference being made and by exercising such a jurisdiction, the Court cannot say that what gave it jurisdiction is itself Invalid, it is the reference made under Section 19 that gave jurisdiction to the District Court to proceed under part III. While exercising jurisdiction under Section 20 of the Act, the District Court cannot say that the reference which gives the District Court jurisdiction is itself invalid. It would be like a High Court Judge saying that the High Court Charter creating the High Court is itself invalid.

7. It is, however, necessary to consider the weighty reasons given in ILR 30 Bom 275 (FB) and ILR 1944 Bom 90 : (AIR 1944 Bom 200). In this Bombay case reference is made to Section 18 of the Act and it is observed that this section prescribes the conditions for the right of a reference by the Collector to come into existence. They are the conditions to which the power of the collector to make a reference is subject. It is also observed that they are also the conditions which must be fulfilled De-fore the Court can have jurisdiction to entertain the reference. The following observations were made in this Bombay case :

'Now, as was said by the Judicial Committee of the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoo-deen Khan, (1865) 6 Mod Ind App 134 at p. 155 (PC)., 'wherever jurisdiction is given to a Court by an Act ot Parliament, or by a Regulation in India (which has the same effect as an Act of Parliament}, and such jurisdiction is only given upon certain specified terms contained in the Regulation itself. It is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for If they be not complied with the jurisdiction does not arise.' The same case is also authority for the proposition that' the compliance need only be substantial so as to be 'intelligible and clear'.'

This proposition is indisputable, but the question here is as to the jurisdiction of the District Court and not as to the jurisdiction of the Collector. If certain conditions are prescribed which were conditions precedent before the District Court can exercise its powers under the Land Acquisition Act, then It is the duty of the District Court to see that the conditions precedent have been fulfilled. Section 20 of the Act provides that and a reference is made, the Court shall cause a notice specifying the day on which the Court will proceed to determine the objection etc.....What the court has todo is to construe Section 20 of the Act. The only condition mentioned in Section 20 of the Act is to be gathered from the word 'thereupon' and the word 'thereupon' has been interpreted with reference to Section 19 which precedes Section 20 in which the word 'thereupon' has been used, me effect of Section 20 is that upon a reference being made, the District Court shall exercise its powers as specified in Section 20. The only condition precedent, therefore, to the District Court exercising its powers is the fact that a reference is made. This is the only condition precedent. It would not be correct to speak of the conditions mentioned in Section 18 as amounting to conditions precedent to the District Court exercising its powers. The conditions mentioned in Section 18 are conditions precedent to the Collector exercising his powers of making a reference. They are not conditions precedent to the exercise of the District Court of its powers. If this distinction is borne in mind, the conclusion must be arrived at, namely, that the District Court can only see whether a reference has been made or not.

8. In ILR 1944 Bom 90 : (AIR 1944 Bom 200) the question was considered. That case is distinguishable on facts because the Collector himself had requested the District Court to decide the question whether the application for a reference was within time or not. As the Collector himself did not decide the point and leftit to the decision of the District Court, the District Court had to decide this question and the question whether the District Court had power to decide the point of limitation or not had not, therefore, clearly arisen for decision. However, the learned Judges of the Bombay High Court made the following observations on the point:

'There has been a conflict of opinion in the High Courts in India on' that question. In In re. Land Acquisition Act, ILR 30 Bom 275, Mr. Justice Chandavarkar held that the Court was bound to go into the question wither the reference under Section 18 was in time. He held that the Court was not only entitled, but bound, to satisfy itself that the conditions laid down in Section 18 had been complied with. The principle acted upon in that case was followed by a bench of the Allahabad Hign Court in Sukhbir Singh v. Secretary of State : AIR1926All766 . In that case the collector had made a reference, although theie was no application before him such as is required by Section 18, and the Court held that that being so, there was no valid reference, But in a later case, which came before another bench or the Allahabad Nigh Court : AIR1929All769 , the Court held that it was not open to the District Court under Section 18 to go behind the reference, tnat it was for the Collector to decide whether the conditions justifying a reference had been complied with, and if he thought that they had been, the Court was bound to accept that conclusion. That view has found favour witn a single Judge in the Madras High Court in AIR 1943 Mad 327.

There being a conflict in the High Courts, it is desirable to consider the matter afresh. Section 18(1) 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, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. Then Sub-section (2) provides that the application shall state the grounds on which objection to the award is taken. Then there Is a proviso that every such application shall be made within the time specified. Then Section 13 provides the information which the reference is to contain. Section 20 provides that the Court shall thereupon cause a notice specifying the day on which the Court will proceed to determine the objection to be served, amongst others, on the applicant.

The basis of the appellant's argument is that the Collector, acting under Section 18, is not a Court, or at any rate not a Court subordinate to the District Court or to this Court, and that the Court cannot interfere with his decision either in appeal or in revision. That, no doubt is true but that is not really the position. The Collector has power to make a reference on certain specified conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award, the second condition is as to the nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. It seems to me that the court is bound to satisfy itself that the reference made by the Collector complies with the specified conditions, so as to give the Court jurisdiction to hear the reference. It is rot a question of the Court sitting in appeal or revision on the decision of the Collector; it is a question af the Court satisfying itself that the reference madeunder the Act is one which it is required to hear, it the reference does not comply with the terms of the Act, then the Court cannot entertain it. I have myself same difficulty in seeing on what principle the court is to be debarred from satisfying itself that the reference, which it is called upon to hear, is a valid reference. I am in entire agreement with the view expressed by Mr. Justice Chandavarkar that it is the duty of the Court to see that the statutory conditions have been compile a with.'

9. As already observed above, the District wart gets jurisdiction under S, 20 of the Act only upon a reference being made by the Collector under Section 19. While exercising its jurisdiction under Section 20 of the Act, the District Court cannot go into the question whether the reference made under Section 19 of the Act which along gives the District Court jurisdiction was itself valid or not. As already observed, it will be like a High Court Judge exercising jurisdiction over the High Court Charter to hold that the High Court Charter is itself invalid.

10. It is of course open to Courts of law to decide about the validity or invalidity of certain matters; but the Court cannot decide the validity of that which gives it jurisdiction.

11. The District Court can consider the question ct validity or Invalidity of the reference' made by the Collector if the District Court is exercising its ordinary jurisdiction apart from the reference made, [t is also open to a Court hearing an application or suit and under Section 45, Specific Relief Act, if applicable, to decide whether a reference was wrongly refused or was wrongly made. It would also be open to the High Court exercising its powers under the Constitution to decide whether the Collector wrongly refused to make a reference or wrongly made a reference. The Civil Court exercising its original jurisdiction may, if called upon to do so and if that question is necessary to be determined, decide the question whether the reference was validly made or not. But a Court which exercises its jurisdiction only upon a reference being made cannot decide that the reference is not validly made. Moreover part III of the Act enumerates the points which the District Court acting under part III of the Act can decide. The District Court exercising its jurisdiction under part III cannot decide any point not enumerated in part III of the Act. With great respect therefore, I find it very difficult, inspite of my best efforts to do so, to agree with the view taken in ILR 30 Born 275 and ILR 1944 Bom 90: (AIR 1944 Bom 200). The learned counsel for the opponent contended that the rule contained in ILR 1944 Bom 90: (AIR 1944 Bom 200) is binding upon this Court. I have already given lengthy reasons in my judgment in Mangalbhai Revabhai v. Kalyanpuri, Civil Revn. Appln. No. 1122 of 1960 (Guj). -- In my humble view no judgment except that of the Supreme Court is binding on High Court Judges.

12. Further, as I have already pointed out above, ILR 1944 Bom 90; (AIR 1944 Bom 200) is distinguish on facts. There the Collector himself had asked the District Court to decide the question of limitation, me observations in this case are obiter but an the same are entitled to the most profound respect and consideration which I have given to them. The case reported in ILR 30 Bom 275 was one from the Original Side and there is no Original Side in the Gujarat High court.

13. The District Court had, therefore, no right to hold that the reference was out of time. The order madeby the learned District Judge, is, therefore, set aside and he is directed to hear the reference in the manner provided in part III of the Act. In view of this conclusion reached, it is not necessary to decide whether an oral notice is sufficient or whether a written notice is necessary and, in my view, for the reasons already given, that point cannot be decided by me in a revision application filed against the order of the District Court, whether I can decide such a point in a revision application filed upon the order of Collector need not be decided now.

14. The application is allowed with costs.


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