1. This appeal arises out of proceedings under the Land Acquisition Act, in the course of which 10 cents of land in T. S. 53/B-1 in Virudhunagar belonging to the appellant were acquired by the Government for building purposes. In his award dated 30-9-1947, the 'Collector' awarded compensation at Rs. 25/- for each cent of land. Notice of that award was served on the appellant on 10-10-19.47. The appellant applied under Section 18 of the Act by his letter dated 8-12-1947, it however reached the Collector only on 10-12-1947 -- for a reference to the Court, disputing the quantum of compensation. The Col-lector thereupon made his reference to the Sub Court, Ramanadhapuram under Section 19 of the Act.
2. The learned Subordinate Judge held that the market-value of the land acquired on the relevant date 'was Rs. 100/- per cent. of land. But he held that, as the application under Section 18 of the Act was filed by the appellant beyond the period of six weeks prescribed by the proviso to Section 18, the reference itself was incompetent.
3. The correctness of the finding that the market-value was not Rs. 25 as fixed by the Collector, but Rs. 100/- per cent. as found by the learned Subordinate Judge, was not challenged before me. The only question to be decided in this appeal is whether the learned Subordinate Judge had jurisdiction to investigate or decide whether the application of the appellant under Section 18 of the Act was barred by limitation. That the application itself was beyond the six weeks prescribed by the proviso to Section 18 did not admit of any dispute.
4. There is cleavage of judicial opinion on the question, whether a court, to which a reference has been made under Section 19 of the Act, can go behind the reference and decide whether a reference, on an application barred under the proviso to Section 18 of the Act is competent.
5. In 'In re, Land Acquisition Act, Bombay, 30 Bom 275 (A)' Chandavarkar J. held that the Court was not only entitled to but was bound to satisfy itself that the conditions laid down in Section 18 of the Act had been complied with. That view was accepted as correct by a Division Bench of the Bombay High Court in -- 'Mahadeo Krishna v. Mamlatdar of Alibag AIR 1944 Bom 260 (B). In -- 'Gulam Muhyuddin v. Secy, of State', AIR 1914 Lah 394 (C) -a Division Bench of the Lahore High Court accepted as correct the view of Chandavarkar J. in 30 Bom 275 (A). In the course of their judgment the learned Judges of the Lahore High Court referred also to an earlier unreported decision of their court, where also the same view was taken.
6. The principles laid down in 30 Bom 275 (A)' were accepted as correct by the Allahabad High Court in -- 'Sukhbir Singh v. Secy, of State : AIR1926All766 . But in its subsequent decision -- 'Secy, of State v. Bhagwan Prasad : AIR1929All769 , the learned Judges of that Court Observed that the facts in AIR 1928 All 766 (D)', in which the claimants had not made any application at all under Section 18 of the Act, were distinguishable, and laid down that the Court had no jurisdiction to go behind the reference to decide whether the application to the Collector Under Section 18 was barred by limitation. That was followed by the Allahabad High Court in its subsequent decision reported in -- 'Secy, of State V. Bhagwan Prasad : AIR1932All597 .
7. Though it was not the question of limitation as such that arose for determination in -- 'Mahananda Pal v. Secy: of State', AIR 1920 Cal 974 (G), the learned Judges of the Calcutta High Court, observed that they were not inclined; to attach much weight to the view of Chandavarkar J. in 30 Bom 275 (A)
8. In -- 'Venkateswaraswami Varu v. Sub-Collector, Bezwada', AIR 1943 Mad 327 (H) Kuppuswanii Ayyar J. apparently preferred the later Allahabad view, and he held that the Court had no jurisdiction to go into the question, whether the application under Section 18 that preceded the reference under Section 19 was barred by limitation. In -- 'Subramania Chettiar v. Collector of Colmbatore', AIR 1946 Mad 184 (I) the Collector made a reference under Section 19, but he pointed out in the letter that accompanied the reference that the application of the claimant had been made to him after the expiry of the period of limitation. The learned Judges (Wadsworth O. C. J. and Koman J.) held:
'We are, therefore, of opinion that the Court has power, when a reference is made under Section 18 of the Land Acquisition Act, to go into the question of Limitation, all the more so in a case like the present, where the Collector himself has included the question of limitation as part of the reference in his letter accompanying the reference and has not decided, the question himself.'
'AIR 1943 Mad 327 (H)', decided by Kuppuswami Ayyar J. was distinguished on the ground :
'The learned Judge states that the question 08 limitation was raised by the Collector in a separate letter dated 7-12-1937, after making a reference by order dated 24-11-1937. It was possible therefore that the learned Judge did not consider the letter to form part of the reference made earlier.'
But the learned Judges also recorded an unqualified approval of the reasoning and conclusion of Beaumont, C. J. in -- : AIR1944Bom200 (B). That decision of the Bombay High Court, it will be remembered, approved of the principles laid down by Chandavarkar J. in -- 30 Bom 275 (A)', which Kuppuswami Ayyar J. virtually dissented from in -- AIR 1943 Mad 327 (H)'.
9. Since the question is one of general importance, I think it is desirable to have an authoritative ruling of a Division Bench of this Court on the question whether a Court to which a reference has been made under Section 19 of the Land Acquisition Act has jurisdiction to go behind that reference and decide whether the reference itself is competent and whether the application under Section 18 of the Act that preceded the reference is barred by limitation.
10. The papers will be placed before my Lord the Chief Justice for orders and post this appeal itself for disposal by a Division Bench.
(This Appeal coming on for hearing in pursuance of the above order of reference on 5-8-1954 and having stood over for consideration till this day the Court delivered the following :)
Govinda Menon J.
11. This case comes before us on a reference by Rajagopalan J. as it involves an important question of law.
12. By an award dated 30-9-1947 the Land Acquisition Officer, Sivakasi, directed the payment of compensation to the appellant herein,at the rate of Rs. 25/- per cent. for ten cents of land in survey number 55/1-B on its compulsory acquisition. This award was served on the appellant on 10-10-1947. The appellant, thereupon applied to the Land Acquisition Officer by his letter dated 8-12-1947 received by the Land Acquisition Officer on 10-12-1947 for reference to the court regarding the determination of the proper compensation. The Collector, on this made a reference to the Sub-Court, Ramanathapuram under Section 19, Land Acquisition Act. The learned Subordinate Judge was of the opinion that the market-value of the land acquired on the relevant date would be about Rs. 100 per cent. and that the appellant would be entitled to be paid compensation at that rate but finding that the application to the Collector was made more than six weeks after the date of the award and therefore, the reference itself was incompetent he declined to interfere.
13. The point that arises for consideration in the present appeal is whether the learned Subordinate Judge erred in the exercise of his jurisdiction in refusing to investigate the question regarding the correctness of the award on the ground that the application of the appellant was barred by limitation, as it was admittedly made beyond six weeks prescribed by proviso (a) to Section 18, Land Acquisition Act. Sub-clause (1) of Section 18 of the Act runs thus :
'(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 the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.'
Sub-clause (2) states that the application should state the grounds on which objection to the award is taken. Then the first proviso to the section states that if the person making the application was present or represented before the Collector at the time the award was made, then the application should be made within six weeks from the date of the Collector's award and the second proviso states that in other respects the application should be made 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 shall first expire. In the present case it is not disputed that the person was present or represented before the Collector at the time when the award was made and therefore under the proviso (a) of Section 18 of the Act the application should be filed within six weeks from the date of the award.
This point was not noticed by the Collector when he referred the matter to the Subordinate Judge. The Collector referred the matter stating simply that the owner objected to the amount of compensation awarded and claimed higher amount of compensation and that, therefore he has applied for a reference being made to the civil court, under Section 19 of the Land Acquisition Act. Along with this letter of reference otherparticulars necessary for the court to adjudicate the question were furnished.
14. The question of law that arises for consideration is whether it is within the competency of the Court to reject the reference made to it by the Collector beyond the period of limitation, laid down in the proviso (1) to Section 18 of the Act or when once a reference is before the court it has necessarily to go into the merits of the case without considering the foundation of jurisdiction. It is contended on the one hand by the learned Government Pleader that the court can go into the question as to whether the reference was made in time, because it is a necessary pre-requisite that the referring officer should act within the terms of the statute, that is it is condition precedent to the Collector having jurisdiction to make a reference, that the application should be made within the period of limitation, and if that is not done it is the duty of the court to find out whether there is valid reference made to it or not.
On the other hand, learned counsel for the appellant lays stress on the fact that since the court under the law as it stood before the Constitution could not compel the collector to make a reference and that when once the reference is before the court, it is not at liberty to find out whether the Collector made the reference on the application of the party affected in time. This matter has agitated the minds of courts for nearly fifty years and there has been difference of judicial opinion and we shall presently notice them.
15. A Full Bench of this court in -- 'Abdul Sattar Saheb v. Special Deputy Collector, Vizagapatam; AIR 1924 Mad 442 (J), had to consider the question as to whether if the Collector refuses to make a reference to the court under Section 18, Land Acquisition Act on an application made by the aggrieved party, the High Court has any power either under Section 116, Civil P. C. or under Section 107 of the Government of India Act, 1919 to revise the order of the Collector and compel a reference being made. The conclusion arrived at by the learned Judges was that even though the Collector in refusing to refer was acting judicially he was not a court or a court Subordinate to the High Court within the provisions of Section 115, Civil P. C. and that being the case the action of the Collector cannot be impugned in the High Court.
Whether this view will hold good after the coming into operation of the Constitution of India is a moot point for in fact under Articles 226 and 227 the High Court is clothed with powers to issue prerogative write and to supervise the inferior courts in general. That being so it should be difficult to accept the proposition put in very wide terms that if inadvertently or consciously an invalid reference is made to the High Court this tribunal is to sit with folded hands, look into the reference as if it is validly made under the statute and pronounce an opinion on the merits of the case.
According to Section 18, Land Acquisition Act there are certain conditions which have to be fulfilledbefore the Collector is empowered to make the reference and then alone the court has any jurisdiction to entertain the reference. These conditions are :
1. written applications should be made before the Collector,
2. the person applying should be one interested in the subject-matter of the reference, but who does not accept the award,
3. the grounds of objection as to measurement, or the amount of compensation, the person to whom it is payable or the apportionment of the compensation among the persons interested should be stated in the application and
4. the application should be within the period of time prescribed under the proviso (a) to the section.
These are all matters of substance and their compliance is a condition precedent to the exercise of the power of reference under the Section. See the decisions in -- 'Samuel Burge v. Improvement Trust, Lucknow : AIR1926All766 ' and -- 30 Bom 275 (A)'. In this connection it is pertinent to refer to the observations of the judicial Committee in the decision in -- 'Nusserwanjee Pestonjee v. Meer Mynoodeen Khan', 6 Moo Ind App 134 (L), at p. 155, where their Lordships state as follows :
'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.'
Therefore, on principle nothing can be said against the refusal of the court to entertain a reference made to it which is not in accordance with the requirements of the statute governing the making of references.
16. The case-law on the subject is directed more in favour of the above principle than against it. The earliest case to which our attention was invited is the Judgment of Chandavarkar, J. in-- 30 Bom 275 (A)', where it is laid down that the conditions prescribed by Section 18, Land Acquisition Act are conditions to which the power of the Collector to make the reference is subject arid these conditions must be fulfilled before the court is clothed with jurisdiction to entertain the reference. In that case the reference was made more than six weeks after the period of limitation allowed under the proviso to Section 18 and an attempt was made to justify the reference beyond the period on the ground that certain holidays intervened which if deducted would bring the reference within the specified period. The learned Judge was not inclined even to accept that. Very shortly after the pronouncement of this judgment by Chandavarkar, J. a similar topic came up for discussion before the then Chief court of Punjab and that Judgment is reportedin -- AIR 1914 Lah 394 (C). The learned Judges, Rattigan and Scott Smith JJ., were of the opinion that it is not open to the Collector to waive the objection of limitation and therefore, it is always the duty of the court to hold that the application to the Collector for reference should be made within the period of limitation mentioned and if that is not done the court is entitled to reject such a reference. They follow the judgment of Chandavarkar J. in -- 30 Bom 276 (A)'.
17. It is also stated there, that there was nothing in the case before the learned Judges to show that the Collector noticed that the application was time barred and therefore the inference is that he overlooked the point altogether. The learned Judges took the view that they are bound to hold that the court cannot go into the merits when there is no valid application for reference. The point of view put forward in --30 Bom 275 (A)', has received further support from the subsequent decisions of the. Bombay High Court and they are -- : AIR1944Bom200 (B)'; -- 'G. J. Desai v. Abdul Majid', : AIR1951Bom156 (M) and -- 'Jehangir Bomanji Wadia v. C. D. Gaikwad', : AIR1954Bom419 (N): In the first of these cases Beaumont C. J. 'and Rajadhyaksha J. held that it is the duty of 'he court to see that the Collector complies with the statutory conditions laid down under Section 18, Land Acquisition Act, as he has power to make references only if certain specified conditions are fulfilled and therefore there is no embargo put upon the Court from satisfying itself that the reference which it is called upon to hear is a valid reference or not.
18. This judgment dissents from the conclusion arrived at by Kuppuswami Iyer, J. in -- AIR 1943 Mad 327 (H)', as well as from conclusion In -- : AIR1929All769 '.
19. That the view taken by the Bombay High Court has been consistently to this effect is clear from the later decisions, viz., -- ' : AIR1951Bom156 (M)', where also the decision in -- 30 Bom 275 (A)', was followed and Chagla O. J. and Tendolkar, J. reiterated and adhered to the same view. We have already referred to an earlier decision of the Punjab Chief Court which is on facts somewhat identical with the present case but a more recent one of the present Lahore High Court in Pakistan in the case -- 'Abdul Sattar v. Hamida Bibi', AIR 1950 Lah 229 (O), has not only not in any way whittled down the observations in -- AIR 1914 Lah 394 (C)', but has reiterated the same principle. A Full Bench consisting of Munir C. J. and Md. Sharif and Kayani JJ. have laid down that the court functioning under the Land Acquisition Act being a tribunal of special jurisdiction has a duty to see that the reference under the Act is made to it in the proper manner and if that is not done it is incumbent upon the court to refuse to enquire into the merits of the case. In those circumstances the court can go behind the reference to find out if it is within the period of limitation. The learned Judges agree with the observations of Beaumont, C. J. and Rajadhyaksha, J. in -- : AIR1944Bom200 (B).
20. We shall now come to the decisions of our own; High Court wherein the same view has been expressed. In -- AIR 1946 Mad 184 (I)',. Wadsworth Offg. O. J. and Koman, J. have laid down that when a reference is made to a court under Section 18, Land Acquisition Act, it has power to go into the question of limitation to find out whether the reference was made within the period of limitation prescribed in the Section. The learned Judges were further of the opinion that it is all the more so where the Collector himself has included the question of limitation as part of the reference in his letter and has not decided the question himself. We are in entire agreement with what has been stated by the learned Judges. It is unnecessary in the present case to discuss the question whether the Land Acquisition Officer is a judicial officer or merely an agent or a mouth piece of the Government but if we are asked to' give expression to our views it seems to us that the Land Acquisition Officer acts judicially.
Though the decision of Kuppuswami Iyer, J. in AIR 1943 Mad 327 (H)', was cited before the learned Judges they distinguished it on the ground that the facts of that case were not on all fours with the facts of the case which they were called upon to decide and it was further stated that the question of limitation was raised by the Collector in a separate letter about a fortnight after making the reference under Section 18 of the Land Acquisition Act. There is a copious quotation by Koman J. from the Judgment of Beaumont, O. J, and Rajadhyaksha, J. in -- : AIR1944Bom200 (B)' and finally there is the learned Judges' acceptance and acquiescence in the views expressed in the Bombay case. These are all the cases cited at the Bar justifying the action of courts in finding out whether there was a valid reference by the Collector conforming strictly to the essentials as . regards limitation and otherwise laid down in Section 18 of the Land Acquisition Act.
21. As against this we have a line of cases, the gist of which is to the effect that when once a reference is before the court whether conforming to the provisions of Section 18, Land Acquisition Act or there is an omission to comply with the requirement specified in the said Act or certain of the requirements were waived or set at nought still the court has no jurisdiction to reject it 'in limine' on the ground of non-observance of the fundamental and essential requirements of the section but has to hear the case on merits and come to a conclusion as if the very foundation has been well and truly laid. The earliest of the pronouncements of this bind was in the decision -- : AIR1929All769 (E)'. Both the learned Judges in that case were agreed that when a reference is before the court on an application by the aggrieved party under Section 18, Land Acquisition Act, it has no jurisdiction to go behind the reference in order to scrutinise the effectiveness, justifiability or regularity of such a reference and to enter into the question whether the application In pursuance of which the reference was made within the period of limitation or not.
22. Mukerji, J. analysed the scheme of the Land Acquisition Act as considered by their Lordships of the judicial Committee In -- Ezra v. Secy. of State', 32 Cal 605 (P), noted the view of the Bombay High Court in -- 30 Bom 275 (A)', and referred also to the earlier decision of the same court in : AIR1926All766 ', and also the decision in AIR 1920 Cal 974 (G)', and came to the Conclusion as stated above.
23. The other Judge agreed in the main with his senior, Mukerji, J. The main reasoning on which that judgment is based is that it is entirely within the power of the Collector to decide whether he will make a reference or not and when he makes a reference it is done on behalf of the Government and having made the reference it is not open to him to plead limitation with regard to his own reference. In this view, in our opinion, the learned Judges treated the Collector as an agent of the Government and since the Government cannot plead limitation the agent who acts on its behalf cannot also put forward the same plea. It seems to us that this reasoning is quite unacceptable. As we have already stated, the Collector is functioning in a semi-judicial capacity and this is clear from the Pull Bench decision in -- AIR 1924 Mad 442 (J)'. If that were the position of the Collector, one fails to see how he can be called an agent of the Government. He is just like any other statutory authority functioning within the powers conferred on him by the legislative enactment. Within the framework of that Act he has to act judicially and if he does not do so the outcome of such an act cannot be said to be legal.
Mukerji, J. was a party to a subsequent decision in : AIR1932All597 ', where his earlier -decision was followed. What he says is that after a reference has been made under the Land Acquisition. Act it is not open to the Collector or the Secretary of state to state that the reference was wrongly made on the ground that the application was belated. The reason given for that was that the court does not sit in appeal over the Collector and the Act does not give any authority to the court either in express terms or by implication to go behind the reference and see whether the Collector acted rightly or wrongly. No further reasons other than those given in : AIR1929All769 ', have been advanced. So far as the Calcutta High Court is concerned, our attention has been drawn only to a single case, namely -- AIR 1920 Cal 974 (G)', where the learned Judges were not inclined to attach much weight to the decision in -- 30 Bom 275 (A)'.
24. But the question of limitation was not considered in that case as the subject-matter of the controversy was whether there was anything in the Land Acquisition Act which required the claimant to state in detail the grounds upon which he claims a higher sum than that awarded by the Collector. It was held that there was no imperative provision laying down that such details should be furnished. We do not think that on the question of limitation this case has any bearing. Probably on the facts of that case nothingcould be said against the conclusion arrived at by the learned Judges for what is laid down there is that there was no necessity to give detailed grounds upon which a higher amount of compensation is claimed. This does not in any way help in the elucidation of the question now in controversy though there is a dissent from the decision fit the Bombay High Court in 30 Bom 275 (A).
25. It now behoves upon us to see how far Kuppuswami Iyer, J. was right in the view he took in AIR 1943 Mad 321 (II). Wadsworth Offg. C. J. and Koman, J. have distinguished this case on this question of limitation. The main reliance of the learned Judge is on the observations contained in : AIR1929All769 for his conclusion that it is not competent for the court to go behind the correctness of the order of reference. We have already held that with due respect to the Judges of the High Court of Allahabad who decided that case it is not possible for as to agree with the reasoning given by them. Kuppuswami Iyer, J. was also of the view that in the case of a reference by the Collector under the Land Acquisition Act it is not the application of the party which gives jurisdiction to the Civil Court but that it is the reference made by the Land Acquisition officer. That no doubt is true taut the foundation of the reference is the valid application for making the reference. With due deference to Kuppuswami Iyer, J. we do not think that his reasoning is sound.
26. We have thus considered the conflicting and divergent points of view propounded on this question. On principle apart from authority it is difficult to accept the line of reasoning contained in the cases laying down, that whatever might be defects and imperfections in the reference made, when once it is before the Court, that tribunal is debarred from finding out whether a valid reference has been made. It is no doubt true that under Sub-section (1) of Section 18 of the Land Acquisition Act, a person interested who has not accepted the award may by written application require the Collector to make a reference regarding the matters enumerated later on in that subsection but the first proviso to that section is imperative in stating that every such application shall be made within six weeks from the date of the award, if the person making it was present or represented before the Collector at the time when he made the award. We are not concerned with the second proviso (b).
When there is such an impelling and binding provision to the effect that the application for making the reference shall be made within the period specified in the Act, it is difficult to see how a party who makes an application after the expiry of such a period can ask the Collector to make the reference. The necessary 'sine qua non' of the reference is the basic fact that the application for such a reference must be made in accordance with the provisions of Section 18 of Land Acquisition Act and within the period specified in the first proviso to that section and if those provisions are not complied with, there cannot be any valid application at all and necessarily if such an application does not exist, a positive reference is incapable of existence.
It would be the height of technicality to say that even when a scrap of paper styled as reference is made by the collector and that is before the Court it is bound to go into the merits of the dispute.
No Court can be compelled to adjudicate upon matter which do not come before it in strict conformity with the requirements of law and it is within the inherent power of the Court to find out whether the matter that comes before it, is in the proper form and in accordance with the requirements of particular statutes. A passive attitude which the Court is compelled to 'adopt in cases it is asked to adjudicate upon invalid references cannot be founded on law or reason.
Learned counsel for the appellant contended that the Land Acquisition Act being an expropriatory piece of legislation the provisions of such an Act should be interpreted liberally in favour of the owners of properties which are being compulsorily acquired and that some latitude and laxity should be shown especially in matters of limitation. As the learned Chief Justice, Chagla pointed out in : AIR1954Bom419 (N) such equitable or ethical considerations cannot weigh with Courts in interpreting limitation statutes which are technical in their nature. It seems to us that the bulk of judicial opinion is decidedly in favour of holding that the Court has power to find out whether the reference made to it is a valid one or not, with which we are in perfect agreement.
27. In the result the decision of the Courtbelow is correct and this appeal is dismissed. Butas on merits the learned Subordinate Judge hasfound that the compensation allowed is inequitable we do not make any order as to costs.