V.D. Misra, C.J.
1. 'Whether a Court to whom a reference under Section 18 of the Land Acquisition Act has been made can go behind the reference and decide whether the application has been made beyond the period of limitation?' is the question which arises for decision in these revisions. The Supreme Court in Mahammed Hasnuddin v. State of Maharashtra, AIR 1979 SC 404, has ruled that the Court has the right nay a duty, of satisfying itself that the reference is valid and proper reference. However, Mr. Shamsher Singh Kanwar, learned counsel for the petitioners, con-tends that this judgment is not applicable in this State because of addition of Sub-section (3) in Section 18 of the Land Acquisition Act (the Act), Before I analyse the law I may briefly refer to the facts of one case since similar facts are involved in other cases,
2. In Civil Revision No. 127 of 1981 the petitioner is Jamita Ram. His land was acquired for the construction of Beas Dam at Pong by an award dated 31st January, 1972. The Collector announced the rates of compensation in respect of various categories of lands. The petitioner was present when the Collector announced the award. Since he was not satisfied with this award he made an application under Section 18 of the Act requiring the Collector to make a reference to the Court for the determination of compensation. This application was resisted. Various issues were framed. During the course of trial it transpired that the application has not been filed within limitation prescribed under Sub-section (2) of Section 18 of the Act, The Court, therefore, found that the reference was not made within time and refused to answer the same,
3. At this stage it may be advantageous to read Section 18 along with the amendment made by the Land Acquisition (Himachal Pradesh Amendment) Act, 1979, adding Sub-section (3) of Section 18 of the Act:
'18. (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.
(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 represented before the Collector at the 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.
(3) Any order made by the Collector on an application under this section shall 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 (5 of 1008).'
4. Mr. Kanwar has taken me through various judgments of different High Courts to canvass that once a reference has been made by the Collector the Court has no right to go behind the reference to find out whether the reference is proper or not, and that the only duty of the Court is to answer the reference. I have decided not to refer to any of these judgments in view of the Supreme Court decision in Mohammed Hasnuddin's case (AIR 1979 SC 404) in which all these judgments have been taken notice of. Mr. Kanwar, basing his arguments on the aforementioned Sub-section (3) of the Act, has contended that since the order of the Collector on the application made under this sub-section is to be treated as order of a Court and since the High Court had the revisional jurisdiction to correct the order, it is not open to the Court dealing with the reference to hold that the reference was beyond the period of limitation.
5. It is true that the Land Acquisition Act with which the Supreme Court was concerned in Hasnuddin's case did not have any provision like Sub-section (3). But in my opinion that will not make any difference in view of the various observations made by the Supreme Court in that case.
6. It is no doubt true that a right has been conferred on a person interested, who has not accepted the award of the Collector, to require the Collector to refer the matter for determination of the Court. For this he has to make an application in writing. Sub-section (2) of Section 18 lays down that (a) the application must state the grounds on which objection to the award is taken, and (b) the application should be made within the time laid down in the proviso to the sub-section, It is but elementary that unless these two conditions are satisfied there cannot be a proper and valid reference which is the very foundation of jurisdiction of a Court. The jurisdiction which the Court has been given under Section 18 of the Act to determine the compensation etc., only arises when a reference is duly made by the Collector. If the Collector makes no reference the Court has no jurisdiction to proceed with the matter. Before the Constitution of India came into force, the refusal of a Collector to make a reference left the persons interested without any remedy. In these circumstances some of the States had made provisions like the aforementioned Sub-section (3). This alleviated the sufferings of the claimants. Since the Court was to get the jurisdiction on the basis of a reference made by the Collector, it was but necessary that the reference should be proper. For example, if the application does not contain any ground on which the objection to the award is taken and a reference is made by the Collector, the Court is not bound to answer this reference since there is no proper application in the eyes of law on which a reference could be made. Similar is the case where the application is not made within the time laid down by Sub-section (2).
7. The Supreme Court in Hasnuddin's case (AIR 1979 SC 404 at p. 410) observed:--
'While it is true that the Collector in making the award under Section 11 acts as an agent of the Government, he in making a reference to the Court under Section 18 acts as a statutory authority. Section 18, Sub-section (1) of the Act entrusts to the Collector the statutory duty of making a reference on the fulfilment of the conditions laid down therein. The Collector, therefore, acting under Section 18, is nothing but a statutory authority exercising his own powers under the section.'
It was further observed (at pp. 411, 412)s
'The word 'required' in Section 18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under Section 18 on the fulfilment of certain 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. The power of the Collector to make a reference under Section 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
'.....We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to Section 18, Sub-section (2) is a sine qua non for a valid reference by the Collector.
'From these considerations, it follows that the Court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the Court jurisdiction to hear the reference,' At another place in the judgment the Court said:
'Even if a reference is wrongly made by the Collector the Court will still have to determine the validity of the reference because the every jurisdiction of the Court to hear a reference depends on a proper reference being made under Section 18, and if the reference is not proper, there is no jurisdiction in the Court to hear the reference. It follows that it is the duty of the Court to see that the statutory conditions laid down in Section 18 have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It is only a valid reference which gives jurisdiction to the Court and therefore, the Court has to ask itself the question whether it has jurisdiction to entertain the reference.
'In deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the Court, the Court is certainly not acting as a Court of appeal, it is only discharging the elementary duty of satisfying that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The Court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to Sub- section (2) of Section 18 of the Act, and if it finds that it was so made, decline to answer reference.'
8. It being the duty of the court tot satisfy itself whether the reference is proper according to the Act, it cannot be said that simply because the order made by the Collector on an application under Section 18 being revisable by the High Court, the court loses its jurisdiction to look into the question whether the reference has been properly made. Of course, where the matter has been taken to the High Court and a finding has been given about the validity of a reference, the Court will be bound by this decision and will have no right to redecide the question. But where the reference has not been so tested by the High Court it will be open to the Court dealing with the reference to decide about the validity of the reference.
9. Mr. Kanwar has referred to the decision of a learned single Judge of the Punjab and Haryana High Court in Stale of Haryana v. Man Singh, AIR 1978 Punj and Har 27, in support of his contention. In the States of Punjab and Haryana the Land Acquisition Act stands amended by the addition of Sub-section (3) to S, 18 which is word for word the same as in this State. It is true that the learned single Judge came to the conclusion that it was difficult, in view of the express remedy provided by Section 18 (3), to hold that the court, to whom a reference is made under Section 18, has the jurisdiction to go into the question of the validity of the reference. However, the judgment shows that the learned Judge had taken note of, and indeed relied upon, the judgments of the High Courts, which have since been overruled by Hasnuddin's case (AIR 1979 SC 404) in holding that once a reference has been made the duty of the court is to answer it and not to constitute itself as a court of appeal or court of revision against the reference. In my opinion this decision, in view of the observations made by the Supreme Court in Hasnuddin's case, cannot be of any help to the petitioners. For the same reason Mr. Kanwar's contention that since a special forum has been provided by Sub-section (3) to have the validity of the reference tested the court cannot go behind the reference, has to be negatived.
10. I will now take up individual cases.
C.R. No. 127 of 1981.
11. Detailed facts of this revision have already been stated. I find that the petitioner had deposed before the court that he was present when the award was announced. But the parties had not gone to trial on the question of limitation. Neither any issue had been framed on this question nor there is anything else on record to show that when the petitioner stated in cross examination that he was present when the award was annonuced by the Collector the petitioner was conscious of the fact that he had to show that the application was made by him within limitation. It appears that it was during the course of final arguments that the counsel of the petitioner was called upon to satisfy the court that the application was within limitation. This was not fair to the petitioner. He had to be given adequate opportunity to prova that the application was within limitation,
C.R. No. 154 of 1981,
12. In this case the learned trial Judge has proceeded to hold that the application filed by the petitioner was beyond the period of limitation on the ground that his predecessor vide his order dated 18th Aug., 1980 has noted that Ramesh Chand, attorney of tha petitioner, was present at the time of making the award. Excepting this note on the record there is no evidence to show that Ramesh Chand was the attorney of the petitioner and that he was present at the time of announcement of the award. It was during the course of final arguments that the petitioner's counsel was asked to address the court on this question. The judgment reveals that the counsel did raise the plea that there was nothing on the record to show that the contents of the award were made known to the petitioner.
13. Now it is necessary that before a person is non-suited on the ground of limitation an adequate opportunity should be granted to him. For this it is necessary that the party should know that this question is being raised and is involved in the matter. It is true that it is not necessary that an issue must be framed. But the framing of an issue will always prevent the party from raising the plea of being taken unaware. Where the issue on the question of limitation is absent the record must show that the party has gone to trial being conscious of this question. There is nothing on the record of this case that the petitioner was conscious of this fact. It appears that the learned Judge, who consolidated four references which have been decided by a common judgment, did not pay any serious attention to the rights of the petitioner. Giving an opportunity at the time of arguments to the petitioner's counsel cannot by any stretch of imagination be termed as adequate opportunity.
14. Civil Revisions Nos. 127 and 154 of 1981, therefore, have to be accepted and the impugned orders as regards the reference of the petitioners are quashed and set aside. The cases are remitted to the trial Judge with a direction that an issue be framed on the question of limitation and the parties given opportunity to lead evidence. Civil Revisions Nos. 155 and 186 of 81.
15. These revisions arise out of a common award given by the Additional District Judge, Kangra. The references made on the basis of separate applications of the petitioners were consolidated. I find that in these cases the trial court framed a specific Issue No. 3 (a) to the effect: 'Whether the reference is within limitation?' The award in these cases was announced by the Collector on 31st May, 1971. Bihari Lal petitioner deposed before the trial court that he as well as Vakil petitioner were present before the Collector when the award was announced. The applications under Section 18 of the Act were made by these petitioners on 15th July, 81, that is three days after the period of limitation. It is contended that there is no evidence to show that the contents of the award were explained to the petitioner. Since applications were ex facie barred, it was for the petitioners to lead evidence to show that the contents were not explained to them when the award was announced in their presence. The record shows that due opportunity was granted to the petitioners to lead evidence but they failed to produce any evidence. In these circumstances I find nothing wrong with the trial court holding the applications barred by limitation. These revisions have, therefore, to be dismissed.
16. Before parting with these cases I would impress upon the State that the petitioners should not be made to suffer on technical grounds. There was a delay of only three days. Since the provisions of Section 3 of the Limitation Act do not apply to these proceedings there was no opportunity to the petitioners to explain the delay which is normally the case in all civil litigations. Keeping in view the fact that the petitioners ar-illiterate villagers whose lands had been acquired for the benefit of the nation, in my opinion, the State should ensure that they get the same compensation which has been granted to other claimants of the Tika where their lands were situated.