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H.H. Maharao Shree Madansinhji Saheb Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR609
AppellantH.H. Maharao Shree Madansinhji Saheb
RespondentState of Gujarat
Cases ReferredVenkateswaraswami v. Sub
Excerpt:
- - 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 left it 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 there- fore 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 invalid. with great respect therefore i find it very difficult inspite of my best efforts to do so to agree with the view taken in i......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 i.l.r. 30 bombay 275 and i.l.r. 1944 bombay page 90. the learned counsel for the opponent contended that the rule contained in i.l.r. 1944 bombay 90 is binding upon this court. i have already given lengthy reasons in my judgment in civil revision application no. 1122 of 1960*. in my humble view-no judgment except that of the supreme court is binding on high court judges. 6. further as i have already pointed out above i.l.r. 1944 bombay 90.....
Judgment:

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.

In support of this contention the Learned Counsel for the applicant relies on Hari Krishan v. State of Pepsu Sri Venkateswaraswami v. Sub-Collector Bezwada A.I.R. 1943 Madras 327 Secretary of State v. Bhagwan Prasad I.L.R. 52 Allahabad 96 Secretary of State v. Bhagwan Prasad : AIR1929All769 and Secretary of State v. Bhagwan Prasad : AIR1932All597 . But the Learned Counsel for the opponent disputes this proposition and relied on Mahadeo Krishna Parkar v. Mamlatdar of Alibag I.L.R. 1944 Bombay 90 G.J. Desai v. Abdul Mazid Kadri 53 B.L.R. 257 and In the matter of Government and Nanu Kothare and Ors. I.L.R. 30 Bombay 275. 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 by 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.

(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application such 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 date of the Collectors award;

(b) In other cases with six weeks of the receipt of the notice from the Collectors under Section 12 Sub-section (2) or within six months from the date of the Collectors award whichever period shall first expire.

Section 19 of the Act reads as follows:

Collectors statement to the Court. (1) In making the 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 particulars of any trees buildings or standings crops thereon;

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

(c) the amount awarded for damages and paid or tendered under Sections 5 and 17 or either of them and the amount 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 compensation was 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 thereupon cause 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 be served on the following persons namely

(a) 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 of the land or to the amount of compensation the Collector.

Both the different points of view have been elaborately discussed in and the weighty reasons given by Sir John Beaumount Chief Justice in I.L.R. 1944 Bombay 90 had also been considered. I will not repeat the reasoning contained in 1958 Punjab 490. 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 decide certain objections to the amount of compensation. In deciding 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 18 or that the application that was given to him was made within six weeks from the date of the Collectors award or within six weeks of the receipt or the notice as stated in Section 18.

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.

2. Moreover Section 20 of the Act is mandatory. After a reference is received the Court has go to act as provided in Section 20. The Court his no option but to act under Section 20 after a reference has been received.

The District Court gets jurisdiction under Part III of 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. It is however necessary to consider the weighty reasons given in I.L.R. 30 Bombay 275 and I.L.R. 1944 Bombay 90. 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 before the Court can have jurisdiction to entertain the reference The following observations were made in the Bombay case:

Now as was said by the Judicial Committee of the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor (1885) 6 Moo. I.A. 134 at p. 155. wherever jurisdiction is given to a Court by an Act of 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.

3. 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 after 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 to do 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. The 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 If 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.

4. In I.L.R. 1944 Bombay 90 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 refer- once as within time or not. As the Collector himself did not decide the point and left it 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 there- fore 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 I.L.R. 30 Bombay 275 Mr. Justice Chandavarkar held that the Court was bound to go into the question whether the reference under Section It 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 High Court in Sukhbir Singh v. Secretary of State for India in Council I.L.R. 49 Allahabad 212. In that case the Collector had made a reference although there 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 of the Allahabad High Court Secretary of State for India in Council v. Bhagwan Prasad I.L.R. 52 Allahabad 96 the Court held that it was not open to the District Court under rec. 18 to go behind the reference that 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 with a single Judge in the Madras High Court in Venkateswaraswami v. Sub-Collector Bezwada A.I.R. 1943 Madras 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 19 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 appellants argument is that the Collector acting under Section 18 is not a Court at any rate not a Court subordinate to the District Court or to this Court and that the Court cannot interfere with he is 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 not a question of the Court sitting in appeal or revision on the decision of the Collector; it is a question of the Court satisfying itself that the reference made under the Act is one which it is required to hear. If the reference does not comply with the terms of the Act then the Court cannot entertain it. I have myself some 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 complied with.

As already observed above the District Court gets jurisdiction under Section 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 alone 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.

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.

5. The District Court can consider the question of validity or invalidity of the reference made by the Collector if the District Court is exercising its ordinary Jurisdiction apart from the reference made. It 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 I.L.R. 30 Bombay 275 and I.L.R. 1944 Bombay page 90. The Learned Counsel for the opponent contended that the rule contained in I.L.R. 1944 Bombay 90 is binding upon this Court. I have already given lengthy reasons in my judgment in Civil Revision Application No. 1122 of 1960*. In my humble view-no judgment except that of the Supreme Court is binding on High Court Judges.

6. Further as I have already pointed out above I.L.R. 1944 Bombay 90 is distinguishable on facts. There the Collector himself had asked the District Court to decide the question of limitation. The observations in this case are obiter but all the same are entitled to the most profound respect and consideration which I have given to them. The case reported in I.L.R. 30 Bombay 275 was one from the original side and there is no Original Side in the Gujarat High Court.

The District Court had therefore no right to hold that the reference was out of time. The order made by the learned District Judge is there- fore 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 1 can decide such a point in a revision application filed upon the order of Collector need not be decided now. The application is allowed with costs.


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