Mohammad Hasnuddin vs State Of Maharashtra on 7 November, 1978

0
78
Supreme Court of India
Mohammad Hasnuddin vs State Of Maharashtra on 7 November, 1978
Equivalent citations: 1979 AIR 404, 1979 SCR (2) 265
Author: A Sen
Bench: Sen, A.P. (J)
           PETITIONER:
MOHAMMAD HASNUDDIN

	Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT07/11/1978

BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SINGH, JASWANT
PATHAK, R.S.

CITATION:
 1979 AIR  404		  1979 SCR  (2) 265
 1979 SCC  (2) 572
 CITATOR INFO :
 F	    1982 SC  61	 (3)
 R	    1986 SC1164	 (5)


ACT:
     Land Acquisition  Act, 1894,  Ss. 14  and	18-Power  of
Collector to  make a  reference under s. 18 circumscribed by
fulfilment  of	 conditions  laid   down  therein-Duty	 and
jurisdiction of	 court to  go behind  the reference  made on
time barred application and decline to answer it.



HEADNOTE:
     The  appellant's	land  was   acquired  by  the  State
Government under s. 5 of the Hyderabad Land Acquisition Act,
A notification	under s.  3(1) was  published  on  the	28th
February, l958	and on	the 13th  of January,  1962 the Land
Acquisition officer,  Aurangabad, made	an  award  directing
payment of  compensation inclusive  of 15%  solatium to	 the
appellant at the rate of 37 n.p. per sq. yard as against his
claim for payment of compensation at the rate of RS.10/- per
sq. yard. the award was communicated to the appellant on the
20th of January, 1962 and on the 5th February, 1962 he filed
an  application	 for  review  before  the  Land	 Acquisition
officer who  made a recommendation  through the Collector to
the Secretary  to the  State Government	 that the  award  be
reconsidered. But, the Collector by his order dated the 23rd
of March,  1962 declined to forward the same. On the 14th of
May, 1962 the appellant applied for reference under s. 14(1)
of the	Hyderabad Land	Acquisition Act	 which	is  in	pari
materia with  s. 18  of	 the  Land  Acquisition	 Act,  1894,
praying that  the period  spent in  the proceedings  for the
review be  excluded while computing the period of limitation
prescribed under  s. 14 of the Limitation Act. The Assistant
Collector, Aurangabad, who was the Land Acquisition officer,
made a	reference  to  the  District  Court  of	 Aurangabad,
.without opining  Whether the application was time barred or
not. The  Government  raised  a	 preliminary  objection	 the
application   being   time   barred.   the   reference	 was
incompetent. The  objection  prevailed,	 both  the  District
Court and the High Court.
     The appellant  contended  that  while  dealing  with  a
reference under	 s. 14(1)  of the  Hyderabad Act,  the court
cannot go  into the  question that  the application was time
barred under  s. 18(2)	of the and Acquisition Act, 1894 and
tbereby refuse to entertain the reference.
     Dismissing the appeal, the Court
^
     HELD:  (1)	 The  power  of	 the  Collector	 to  make  a
reference under	 s. 18	is circumscribed  by the  conditions
laid down therein. These conditions are matters of substance
and  their  observance	is  a  condition  precedent  to	 the
Collector's power  of reference.  The  fulfilment  of  these
conditions, particularly  the one  regarding limitation	 are
the conditions,	 subject to which the power of the Collector
to make	 the reference	exists. Therefore, the making of are
application for	 reference within  the	time  prescribed  by
proviso to  s. 18(2) is a sine qua non for a valid reference
by the Collector. [269G-H, Z71B, 278FGl
     Abdul  Sattar   `Sahib  v.	  Special   Dy.	  Collector,
Vizagapatam Harbour  Acquisition,  ILR	47  Mad.  357  (FB);
BalKrishna Daji Gupta  v. The Collector,Bom
18-817SCI 79
266
bay Suburban,  ILR 47  Bom.  699;  Jagarnath  Lall  v.	Land
Acquisition Dy.	 Collector Patna,  ILR Pat. 321; S. G. Sapre
v. Collector  Saugar, ILR  1938 Nag. 149; Amar Nath Bhardwaj
v. The Governor General in Council, ILR 1941 Lah. 100; Kashi
Parshad v.  Notified Area of Mahoba, ILR 54 All 282, Bhagwan
Dass Shall  v. First  Land Acquisition	Collector, [1937] 41
CWN 130I,  and Gopi  Nath Shah	v.  first  Land	 Acquisition
Collector, [1937] 41 CWN 212; approved.
     Secy. Of State v. Bhagwan Prasad, ILR 51 All. 96; State
of U.P.	 v. Abdul Karim, AIR 1963 All. 556; Panna Lal v. The
Collector   of	  Etah,	  ILR	 [l959]	   1	All.	628;
Venkateshwarasawami v. Sub-Collector, Bezwada, AIR 1943 Mad.
327 and	 Hari Krishan Khosla v. State of Pepsu, ILR [19S8] 1
Punj. 844; over-ruled.
     Krishna Das Roy v. Land Acquisition Collector Pabna, 16
CWN 327; Upendra Nath Roy v. Province of Bengal, 45 CWN 792;
Leath Elias  Joseph Solomon  v. H.  C. Stork,  38  CWN	844;
disapproved.
     Pramatha Nath  v. Secretary of State, ILR 57 Cal. 1148;
Ezra v. Secretary of State for India ILR 32 Cal. 60S and ILR
30 Cal.	 36;  Harish  Chandra  v.  Deputy  Land	 Acquisition
officer, [1962]	 1 SCR 676; and The Administrator General of
Bengal v.  The	Land  Acquisition  Collector,  24  Parganas,
[1907-8] 12 CWN 241; referred to.
     2. Where the tribunal derives its jurisdiction from the
statute that  creates it  and that  statute also defines the
condition under which the tribunal can function, it is bound
to see	that such  statutory conditions	 have been  complied
with. The  court functioning under the Act, being a tribunal
of special  juris-diction, it  us its  duty to	see that the
reference made	to it  by the Collector under s. 18 complies
with the conditions laid down therein. [279B-C, D]
     Even if  a reference  is wrongly  made by the Collector
the court will still have to determine its validity, because
the very  jurisdiction of  the court  to  hear	a  reference
depends on  a proper reference being made under s. l8 and if
the reference is not proper, there is no jurisdiction in the
court. to  hear the reference. The court has jurisdiction to
decide whether	the reference  was made	 beyond	 the  period
prescribed by  the proviso to sub-s. (2) of s. 18 of he Act,
and if	it finds  that it  was so  made, deoline  to  answer
reference. [279EG]
     The Queen	v. Commissioner	 for Special Purposes of the
Income Tax,  LR [1888]	21 QBD	313; Jagdish Prasad v. Ganga
Prasad, [1959] Supp. 1 SCR 733 and Nusserwanfee Pestonjee v.
Meer Mynoodeen Khan, LR [1855] 6 M.I.A. 134; applied.
     Re. Land  Acquisition Act,	 ILR 30	 Bom.  275;  Sukhbir
Singh v.  Secretary of	State,	ILR  49	 All.  212;  Mahadeo
Krishna v.  Mamlatdar of  Alibag, ILR  1944 Bom.  90; G.  J.
Desai v.  Abdul Mazid  Kadri,  AIR  l951  Bom.	156;  A.  R.
Banerjee v.  Secy. of  State,  AIR  1937  Cal.	680,  K.  N.
Narayanappa Naidu  v. Revenue  Divisional officer  Sivakasi,
AIR 195S  Mad. 20;  State of  Rajasthan v.  L. D. Silva, ILR
[19S6] 6  Raj. 6S3;  Sheikh Mohommad  v.  Director  of	Agri
culture; M.P.,	1966 MPLJ  433; Ramdeval  Singh v.  State of
Bihar AIR  1969 Pat.  131; Anthony D' Silva v. Kerala State,
AIR l971  Ker. 51;  Swatantra L. & F. Pvt. Ltd., v. State of
Haryana, ILR  [1974] 2	Punj. 7S;  Swami Sukhanand  v. Samaj
Sudhar Samiti,	AIR 1962  J &  K 59; and Abdul Sattar v. Mt.
Hamida Bibi Pak. L.R. l95O Lah. 568 (FB); approved.
267
     State of  Punjab v.  Cst. Qaisar  Jahan  Begam  &	Anr.
[1964] SCR  971, and A State of U.P. v. Abdul Karim, [CA No.
2434/1966 decided on . 3-9-1969] referred to.
     Secretary of  State v.  Bhagwan Prasad, ILR 52 All. 96;
State of U.P. v. Abdul Karim, AIR 1963 All. 556; Pannalal v.
True  Collector	  of  Etah,   ILR   11959]   1	 All.	628;
Venkateswaraswami v.  Sub-Collector, Bezwada,  AIR 1943 Mad.
327; and Hari Krishna Khosla v. State of Pepsu, ILR [1958] 1
Punj. 8S4; over-ruled.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1926
of1969.

(From the Judgment and Decree dated S 2 68 of the
Bombay High Court in First Appeal No. 4S1 of 1964).

Shaukat Hussain and Mohd. Mian for the appellant.
R. H. Dhebar and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by certificate is directed against
a judgment of the Bombay High Court, and it involves an
important question namely, whether a court in dealing with a
reference under s.14, Sub-s. (1) of the Hyderabad Land
Acquisition Act, 1309 Fasli, corresponding to s. 18, sub-s.
(1) of the Land Acquisition Act, 1894, can go behind the
reference made by the Collector if the application on which
the reference has been made is beyond the period of
limitation prescribed therein.

The material facts giving rise to this appeal are as
follows: The case arises from that part of the erstwhile
princely State of Hyderabad, known as Marathwada, which
merged in the State of Bombay under the States Re-
organisation Act, l956. The land belonging to the appellant
admeasuring 2057 sq. yards in the city of Aurangabad, has
been acquired by the State Government under s.5 of the
Hyderabad Land Acquisition Act for the construction of a
building for the medical college at Aurangabad. The
Government published a Notification under s. 3 (1) on the
28th of February, 1958. On the 13th of January, 1962 the
Land Acquisition officer, Aurangabad made an award directing
payment of Rs. 1,318.11 P. inclusive of 15 per cent solatium
as compensation to the appellant at the rate of 37 np. per
sq. yard, as against his claim for payment of compensation
at the rate of Rs. 10/- per sq. yard. The said award was
communicated to the appellant on the 20th of January, 1962.
The appellant instead of making an application for reference
under s. 14, sub-s. (1) of the Act, filed an application for
review before .he Land Acquisition officer on the 5th of
February, 1962 requesting him ‘to revise the award’ stating
further that in case it was not revised he would seek his
remedy in a court of law’. The Land Acquisition
268
officer obviously felt that the amount fixed by him was too
low and accordingly on the 17th of February, 1962 made a
recommendation, through the Collector, to the Secretary to
the State Government that the award be reconsidered. But,
the Collector by his order dated the 23rd of March, 1962
declined to forward the same and informed the appellant that
he must seek his remedy in! a court of law.

Eventually, on the 14th of May, 1962 the appellant made
an application for reference under s. 14, sub-s. (1) of the
Act and prayed that the period spent in the proceedings for
the review before the Land Acquisition Officer subsequent to
the date of the award be excluded while considering the
question of limitation under s. 14 of the Limitation Act. A
reference was made under section 14, sub-s. (1) of the Act
to the District Court of Aurangabad. The Assistant
Collector, Aurangabad, who was the Land Acquisition officer,
while making a reference made no expression of his opinion
whether the application was time-barred or not, evidently
taking the view that the point should be left for the
decision of the court. He, however, while making the
reference gave a complete narration of facts and left the
question open. A preliminary objection was raised by the
Government that the reference was incompetent, the
application being time-barred. This objection prevailed and
the contention of the appellant based on1 s. 14 of the
Limitation Act was negatived both by the Civil Judge, Senior
Division Aurangabad by his order dated the 28th of June,
1962, and by the High Court of Bombay by its order dated the
5th of February, 1968 holding that the time taken between
the 5th of February, 1962 and the 23rd of March, 1962 could
not be excluded while computing the period of limitation
prescribed under s. 14, sub-s. (1) of the Act inasmuch as s.
14 of the Limitation Act was not applicable to the
proceedings, and further, that even if it applied the
appellant was not entitled to the benefit of s. 14 of the
Limitation Act, stating that good faith, which is also a
necessary ingredient under s. 14, was not established.

The learned Civil Judge raised an issue whether the
application for reference was barred by limitation under s.
14, sub-s. (1) of the Act, and he answered that issue in the
affirmative, and we have no doubt, whatever that his
decision on that point, as well as that of the High Court
affirming it, was right. The application was clearly out of
time.

Section 14, Sub-s. (1) of the Hyderabad Land
Acquisition Act, 1309 Fasli provides that:

“Every person interested, who is displeased with
the Taluqdar’s award may, within two months from the
date of receiving notice of the award, apply to the
Taluqdar in writing to refer
269
the case to the court for determination, whether his
objection be to the measurement of the land, or to the
amount of the compensation, or to the persons to whom
it is payable or to the apportionment of the
compensation among the persons interested.”

Section 15, sub-s. (1) enjoins that the Taluqdar in
making the reference shall forward to the Court a statement
in writing, containing certain particulars. Sub-section (2)
there of provides that 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.

It is conceded for our present purposes that s. 14,
sub-s. (1) of the Hyderabad Land Acquisition Act is in pari
materia with the provisions of s. 18 of the Land Acquisition
Act, 1894. Hence hereinafter reference will be made only to
the provisions contained in the Land Acquisition Act, 1894,
‘the Act’.

Learned counsel for the appellant rested his submission
on the .ground that the court while dealing with a reference
under s. 14, sub-s. (1) of the Act, cannot go behind the
reference and decline to answer it. The point regarding
applicability of s. 14 of the Limitation Act was rightly not
pressed before us. Nor was any contention raised by him that
the application for review made by the appellant before the
Land Acquisition officer on the 9th of February, 1962,
asking him to revise the award should, in law, be regarded
as an application under s. 14, sub-s. (1) of the Act.

The short question that falls for determination in the
appeal is whether the court can go into a question that the
application for reference was not made to the Collector
within the time prescribed in s. 18, sub-s. (2) of the Land
Acquisition Act; and if so, can it refuse to entertain the
reference if it finds it to be barred by time. There was at
one time a great divergence of judicial opinion on the
question. But almost all the High Courts have now veered
round to the view that the court has the power to go into
the question of limitation. It not only has the power but
also the duty to examine whether the application for
reference was in accordance with law i.e., whether it was
made within time prescribed under the proviso to sub-s. (2)
of s. 18 of the Act or not. The view taken by them is that a
Collector’s jurisdiction is circumscribed by the conditions
laid down in s. 18, sub-s. (1), that if he makes a reference
even though the application for reference was not in accord
270
ance with the provisions of s. 18, the court acquires no
jurisdiction to hear the reference and that it can refuse to
hear it if it was made on a time-barred application.

The matter came up twice before this Court in State of
Punjab v. Mst. Qaiser Jehan Begum & Anr.
(1) and the State of
U.P. v. Abdul Karim
(2) in which the conflict of judicial
opinion in the High Courts was noticed but not resolved as
the Court in both the case,s rested its decision on a
narrower ground namely that the application for a reference
was not barred by time. In Mst. Qaiser Jehan Begum’s case
(supra) it was observed:

“In the view which We have taken on the question
of limitation, it is unnecessary for us to decide the
other question as to whether the civil court, on a
reference under s. 18 of the Act, can go into the
question of limitation. We have al-ready stated that
there is a conflict of judicial opinion on that
question. There is no one side a line of decisions
following the decision of the Bombay High Court in re.
Land Acquisition Act, which have held that the civil
court is not debarred from satisfying itself that the
reference which it is called upon to hear is a valid
reference. There is, on the other side, a line of
decisions which say that the jurisdiction of the civil
court is confined to considering and pronouncing upon
any one of the four different objections to an award
under the Act which may have been raised in the written
application for the reference. The decision of the
Allahabad High Court in Secretary of State v. Bhagwan
Prasad
is typical of this line of decisions. There is
thus a marked conflict of judicial opinion on the
question ‘This conflict, we think, must be resolved in
a more appropriate case on a future occasion”. In the
case before us the question doe6 not really arise and
is merely academic and we prefer not to decide the
question in the present case.

That question now directly arises.

It is contended on behalf of the appellant that a
reference to the Court having been made by the Collector,
the court had no jurisdiction to question the validity of
that reference and was bound to decide the matter on merits.
In support of this contention certain authorities have been
cited to us, in which it has been laid down that it is for
the Collector, and the Collec-tor alone, to determine
whether to make a reference under s. 18, sub-s. (1), and if
he decides to make a reference, it is not
(1) [1964] 1 S.C.R. 971.

(2) Civi] Appeal No. 2434 of 1966 decided on 23-9-1969.

271

open to the court to go behind the decision of the
Collector, and hold the reference to be out of time.
Illustrative of this line of decisions is that of Allahabad
High Court in Secretary of State v. Bhagwan Prasad(1). That
view has been reiterated by the Full Bench of the same High
Court in the State of U.P. v. Abdul Karim(2) and in its
earlier decision in Panna Lal v. The Collector of Etah(3),
and the decisions in Venkateswaraswami v. Sub-Collector,
Bezwada(4), Hari Kishan Khosla v. State of Pepsu(5).

Chandravarkar J. in re Land Acquisition Act(6) held
that it is clear from section 18 that the formalities are
matters of substance and their observance is a condition
precedent to be Collector’s power of reference. He held that
the court is bound to go into the question whether the
reference under s. 18 was within time. He also held that the
court was not only entitled, but bound, to satisfy itself
that the conditions laid down in s. 18 have been complied
with. In stating the principle, Chandravarkar J. Observed:

“These are the conditions prescribed by the Act
for the right of the party to a reference by the
Collector to come into existence. They are the
conditions to which the power of the Collector to make
the reference is subject. They are also the conditions
which must be fulfilled before the court can have
jurisdiction to entertain the reference.”

The principle laid down by him in that case was acted upon
in Sukhbir Singh v. Secretary of State(7). In that case the
Collector had made a reference, although there was no
application before him as required by s. 18 and the Division
Bench held that being so, there was no valid reference. But
in a latter case which came before another Division Bench in
Secretary of State v. Bhagwan Prasad (supra), it was held
that it was not open to the court under s. 18 to go behind
the reference, that it was for the Collector to decide
whether the conditions justifying reference have been
complied with and if he thought that they had been, the
court was bound to answer the reference. This view found
favour with a Single Judge of the Madras High Court in
Venkateswaraswami v. Sub-Collector Bezwada (supra) and a
Single Judge of the Punjab High Court in Hari Krishan Khosla
v. State of Pepsu (supra). All these decisions clearly do
not lay down good law.

(1) ILR 52 All. 96.

(2) AIR. 1963 All. 556.

(3) ILR [1959] 1 All. 628.

(4) AIR 1943 Mad. 327.

(5) ILR [1958] 1 Punj. 854.

(6) I.L.R. 30 Bom. 275, 285, 286
(7) ILR 49 All. 212.

272

In State of U.P. v. Abdul Karim (supra) the Full Bench
of the Allahabad High Court, on its view of the scheme of
the Act, declined to follow the decision of Chandavarkar, J.
in re Land Acquisition Act (supra) and the long line of
decisions taking the same view. It preferred to rest its
decision on the earlier view of its Full Bench in Panna Lal
v. The Collector of Etah (supra) and that in Secretary of
State v. Bhagwan
prasad (supra). In the light of these
decisions, it held that the Collector’s jurisdiction to make
a reference is not circumscribed by the conditions laid down
in s. 18, sub-s. (1) and (2), that if he makes a reference
even though the application for reference was not in
accordance with the provisions of s. 18, the court acquires
jurisdiction to hear the reference, and that it cannot
refuse to hear it even if it was made or. a time-barred
application. Upon its view, it held that the court has no
power to determine or consider a question of limitation as
its jurisdiction is strictly limited by the terms of the
section as laid down by the Privy Council in Pramatha Nath
v. Secretary of State(1). It further held that the
legislature having contemplated the Collector to be an agent
of the Government, as that is the position assigned to him
by the Privy council in Ezra v. Secretary of State for
India(2), his status is certainly not changed by the mere
fact that he is required to make a reference under s. 18 if
the application is within prescribed time and complies with
certain conditions. That being so, even if the Collector
wrongly decides that an application is within time or
satisfies other conditions, the Government as its principal,
may have a remedy against him but was bound by his act so
long as it remains. The act being of the agent is their own
and they are bound by it. The Government cannot, therefore,
be permitted to contend at the hearing of the reference
before the court that it was illegally made. In view of all
this, the Full Bench was of the view that this class of case
does not fall within the class of cases where the
jurisdiction of an inferior authority depends upon the
existence of a certain state of facts, as indicated by Lord
Eshar, M. R. in The Queen v. Commissioners for Special
Purposes of the Income-tax(1).

On principle, apart from authority, it is difficult to
accept the line of reasoning of the Allahabad High Court,
namely, whatever might be the defects and imperfections in
the reference made, once it is before the court, the court
is debarred from enquiring into its validity or otherwise.
The decision in Abdul Karim’s case (supra) proceeds on a
com-

(1) ILR 57 Cal. 1148.

(2) ILR 32 Cal. 605.

(3) L.R. (1888) 21 QBD 313.

273

plete misunderstanding of the decision of the Privy Council
in Pramatha Nath v. Secretary of State (supra), where the
Judicial Committee interpreting s. 21 observed:

“Their Lordships have no doubt that the
jurisdiction of the Courts under this Act is a special
one and is strictly limited by the terms of these
sections. It only arises when a specific objection has
been taken to the Collector’s award, and it is confined
to a consideration of that objection. Once therefore it
is ascertained that the only objection taken, is to the
amount of compensation, that alone is the “matter”
referred, and the Court has no power to determine or
consider anything beyond it.”

All that the Privy Council intended to lay down was that the
jurisdiction of the court in dealing with a reference under
s. 18 is restricted by the terms of the section, as enjoined
by s. 21. That decision cannot be interpreted to mean that
the court while, hearing a reference under s. 18 cannot
enquire into competency or otherwise of the reference made
by the Collector, i.e., whether the conditions precedent to
the exercise of power by the Collector, and, therefore, of
the court, and in particular the condition regarding
limitation, are fulfilled or not.

In Ezra v. Secretary of State for India (supra) the
Privy Council, while dealing with the functions of the
Collector in making an award under s. 11 laid down that the
functions of the Collector are not judicial but
administrative and all that he does is to make an offer to
the claimants with regard to the, valuation of the property
to be acquired. In that context, it did not think it
necessary to repeat the reasoning of the judgment under
appeal where the sections and the questions as a whole were
very satisfactorily stated, and observed:

“The proceedings of the Collector resulting in the
‘award’ are administrative and not judicial. The award
in which the enquiry results is merely a decision
(binding only on the collector) as to what sum I shall
be tendered to the owner of the lands and if a judicial
ascertainment is decided by the owner, he can obtain it
by requiring the matter to be referred by the Collector
to the Court.”

These observations, however, related to proceedings under
Part II of the Act and not under Part III.

Ameer Ali and Stephen JJ., in delivering the judgment
under appeal, explained the functions of the Collector under
s. 11 in Ezra v. Secretary of State for India(1) where they
said:

(1) ILR 30 Cal. 36.

274

“throughout the proceedings the Collector acts as
the agents of Government for the purposes of
acquisition….He is in a sense of the term, a judicial
officer, nor is the proceeding before him a judicial
proceeding…. he is not a Court…. The Government
…. at whose instance the land is being taken up is
not entitled to demand a reference.. The reason of this
is plain. The Collector acts as the agent of the
Government…. and they are accordingly bound by the
award of their agent.

…… the Collector acts in the matter of the enquiry
and the valuation of the land only as an agent of the
Government and not as a judicial officer; and
….consequently, although the Government …. is bound
by his proceedings, the persons interested are not
concluded by his finding regarding the value of the
land or the compensation to be awarded.”

On the basis of the Privy Council decision in Ezra’s
case (supra), this Court in Harish Chandra v. Deputy Land
Acquisition officer(1) held that the Collector in making an
award acts as an agent of the Government, and that the legal
character of the award made by the Collector was that of a
tender or offer by him on behalf of the Government.

The Allahabad High Court has read more into the
decision of the Privy Council in Ezra’s case (supra) than is
there. Merely because the Collector while making an award
under s. 11 or in serving a notice of the owner of the land
under s. 12, acts as an agent of the Government, it does not
necessarily imply that while making a reference to the court
under s. 18, he acts in the capacity of an agent of the
Government. While it is true that the Collector in making
the award under s. 11 acts as an agent of the Government, he
in making a reference to the court under s. 18 acts as a
statutory authority. Section 18, sub-s. (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 s. 18, is
nothing but a statutory authority exercising his own powers
under the section.

In the context, we may advert to the controversy that
had arisen as a result of the Privy Council’s decision in
Ezra’s case (supra) holding. that the Legislature had
assigned to the Collector the position of an:
(1) [1962] 1 S.C.R. 676.

275

agent of the Government while making an award under s. 11.
The problem that arose was that the claimants were left with
no remedy where the Collector improperly declines to make a
reference although the application fulfilled the
requirements of s. 18. In The Administrator General of
Bengal v. The Land Acquisition Collector,
24-Parganas(1) the
Calcutta High Court while dealing with the question tried to
draw a distinction between the functions of the Collector
under Part Il of the Act land that under Part III, and
observed:

“It is admitted that up to and including the time
of making his award the Collector was in no sense a
judicial officer and that the proceedings before him
were not judicial proceedings(Ezra v. Secretary of
State) and however irregular his proceedings were, we
cannot interfere with his award made under s. 11 of the
Act.

But when an application is made to the Collector
requiring him to refer the matter to the Civil Court,
the Collector may have to determine and, it seems to
us, determine judicially whether the person making the
application was represented or not when the award was
made, or whether a notice had been served upon the
applicant under sec. 12(2) and what period of
limitation applies and whether the application is under
the circumstances made within time. The Collector’s
functions under Part III of the Act are clearly
distinguishable from those under Part II. Part III of
the. Act relates to proceedings in Court. In our
opinion the Collector in rejecting the application was
a Court and acting judicially and his order is subject
to revision by this Court. To hold otherwise would be
to give finality to an award under sec. 11 even in
cases in which the Collector acts irregularly and
contrary to law and then refuses on insufficient
grounds to make a reference under Part III of the Act.
The party aggrieved may be left without remedy which is
implied by a judicial trial before the Judge.”

These observations were no doubt made in a different context
but they bear some relevance to the point at issue.

The question at issue was whether the Collector’s order
refusing to make a reference could be interfered with by the
High Court under s. 115 of the Code of Civil Procedure or s.
107 of the Government of India Act, 1919. The Calcutta High
Court’s view that the Collector’s power was a judicial power
and that the Collector was a Court subordinate to the High
Court was obviously wrong but it persisted in taking
(1) (1907-8) 12 CWN 241
276
that view to obviate injustice: Krishna Das Roy v. Land
Acquisition Collector, Pabna;(1) Upendra Nath Roy v.
Province of Bengal,(2) Leeth Elias Joseph Solomon v. H. C.
Stork(3). The Calcutta High Court tried to exercise its
supervisory jurisdiction to provide the subject with a
remedy. The power of the Collector to make an order under s.
18 was not judicial in nature, nor was the Collector a court
subordinate to the High Court. The other High Court,
therefore, expressly dissented from the view of the Calcutta
High Court: Abdul Sattar Sahib v. Special Deputy Collector,
Vizagapatnam Harbour Acquisition, (4) Balkrishna Daji Gupta
v. The Collector, Bombay Suburban,(5) Jagarnath Lall v. Land
Acquisition Deputy Collector, Patna,(6) S. G. Sapra v.
Collector, Saugar;(7) Amar Nath Bhardwaj v. The Governor
General in Council,(8) Kashi Pershad v. Notified Area of
Mahoba.(9). Even the Calcutta High Court later changed its
view: Bhagwan Das Shah v. First Land Acquisition
Collector,
(10) Gopi Nath Shah v. First Land Acquisition
Collector.(11) It was held that the functions of the
Collector under s. 18 were statutory or quasi-judicial in
nature.

The construction placed by the Allahabad High Court on
s. 18 of the Act is not borne out either by the plain
language of the section itself or by accepted principles.
The following observations appear in Abdul Karim’s case
(supra):

“There is no support for the proposition that the
necessary sine qua non of a reference is an application
for Reference made in accordance with the provisions of
section 18.”

“There is no provision. which bars the Collector’s
power to make a reference, if he is inclined to make
one on a time barred application.

“If the Collector decides to make a reference the
Land Acquisition Court cannot go behind the reference.”
“A Collector and a Collector alone has
jurisdiction to make a reference and a reference by him
is not a nullity merely because it is based on a time-
barred application.”

(1) 16 CWN 327.

(2) 45 C.W.N. 792.

(3) 38 C.W.N. 844.

(4) I.L.R. 47 Mad. 357 (F.B.)
(5) ILR 47 Bom. 699.

(6) I.L.R. Pat. 321.

(7) ILR (1938) Nag. 149.

(8) ILR (1941) Lah. 100
(9) ILR 54 All. 282.

(10) (1937) 41 C.W.N. 1301.

(11) (1937) 41 C.W.N. 212
277
“The facts regarding limitation of an application
for reference are not required to be stated by the
Collector in his reference, and indeed he is not bound
to send the application along with the reference. All
that the Court has to do on receipt of the reference or
can do is to hear it after giving notice of the date.
The word ‘thereupon’ in Section 19 must be interpreted
to mean “as soon as the collector makes a reference and
states for the information of the Court various matters
set out in Section 19.”

“A District Judge gets jurisdiction not from the
Collector but from the receipt of a reference from him.
It is the receipt of the reference that confers
jurisdiction upon him and not any finding of the
Collector.”

“The Court has to perform a ministerial act of
causing a notice to he given to the objector. There is
no provision entitling it to examine the question
whether the Collector’s order was correct on the
question of the application having been made within the
prescribed time.”

The jurisdiction of the Court under the Act is a
special one and strictly limited by the terms of
section 18 to 21. It only arises when a specific
objection has been taken to the Collector’s award, and
it is confined to a consideration of that objection. A
Court undoubtedly has certain jurisdiction over the
reference, but it does not include any appellate
jurisdiction over the Collector in respect of the
reference made by him without statutory sanction.”
It is difficult to subscribe to these propositions which are
not warranted by law.

In his celebrated judgment in The Queen v.
Commissioners for Special Purposes of the Income Tax (supra)
Lord Esher, M.R., while dealing with statutory Tribunals,
divided them into two categories, namely:

(i) “When an inferior court or tribunal or body
which has to exercise the power of deciding facts, is
first established by Act of Parliament, the
Legislatures has to consider what powers it will give
that tribunals or body. It may in effect say that, if a
certain state of facts exists and is shown to such
tribunal or body before it proceeds to do certain
things, it shall have jurisdiction to do such things,
but not otherwise. There it is not for them
conclusively to decide
278
whether that state of facts exists, and if they
exercise the jurisdiction without its existence, what
they do may be questioned, and it will be held that
they have acted without jurisdiction.

(ii) The legislature may intrust the tribunal or
body with a jurisdiction, which includes the
jurisdiction to determine whether the preliminary state
of facts exists as well as the jurisdiction, on finding
that it does exist, to proceed further or do something
more. When the legislature are establishing such a
tribunal or body with limited jurisdiction, they also
have to consider, whatever jurisdiction they give them,
whether there shall be any appeal from their decision,
for other wise there will be none.”

The law as enunciated by Lord Eshar has been accepted
by this Court as laying down the true principle in Jagdish
Prasad v. Ganga Prasad
(1)
The word “require” in s. 18 of the Act implies. 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 s. 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 objection is 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 s. 18 is thus
circumscribed by the conditions laid down therein, and one
condition is the condition regarding limitation to be found
in the proviso.

The conditions laid down in s. 18 are ‘matters of
substance and their observance is a condition precedent to
the Collector’s power of reference’, as rightly observed by
Chandavarkar J. in re Land Acquisition Act (supra). 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 s. 18. Sub-s. (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 s. 18 complies with the
conditions laid down therein so as to give the court
jurisdiction
(1) [1959] Supp. 1 S.C.R. 733.

279

to hear the reference. In view of these principles, we would
be extremely reluctant to accept the statement of law laid
down by the Allahabad High Court in Abdul Karim’s case
(supra).

Every tribunal of limited jurisdiction is not only
entitled but bound to determine whether the matter in which
it is asked to exercise its jurisdiction comes within the
limits of its special jurisdiction and whether the
jurisdiction of such tribunal is dependent on the existence
of certain facts or circumstances. Its obvious duty is to
see that these facts and circumstances exist to invest it
with jurisdiction, and where a tribunal derives its
jurisdiction from the statute that creates it and that
statute also defines the conditions under which the tribunal
can function, it goes without saying that before that
tribunal assumes jurisdiction in a matter, it must be
satisfied that the conditions requisite for its acquiring
seisin of that matter have in fact arisen. As observed by
the Privy Council in Nusserwanjee Pestonjee v. Meer
Mynoodeen Khan,(1) wherever jurisdiction is given to a court
by an Act of Parliament and such jurisdiction is only given
upon certain specified terms contained in that Act 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.

If an application is made which is not within time, the
Collector will not have the power to make a reference. In
order to determine the limits of his own power, it is clear
that the Collector will have to decide whether the
application presented by the claimant is or is not within
time, and satisfies the conditions laid down in s. 18. Even
if a reference is wrongly made by the Collector the court
will still have to determine the validity of the reference
because the very jurisdiction of the court to hear a
reference depends on a proper reference being made under s.
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 s. 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 s. 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 itself
that a reference which it is called upon to decide is a
valid and
(1) LR (1855) 6 M.I.A. 134.

280

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-s.
(2) of s. 18 of the Act, and if it finds that it was so
made, decline to answer reference
Beaumont C. J., delivering the judgment of the Division
Bench in Mahadeo Krishna v. Mamlatdar of Alibag,(1) agreed
with the view of Chandavarkar J. and observed:

“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 mat the
reference, which it is called upon to hear, is a valid
reference. I am in entire agreement with the view
expressed by Chandavarkar J. that it is the duty of the
Court to see that the statutory conditions have been
complied with.”

The same view has been reiterated by almost all the
High Courts except the Allahabad High Court :G. J. Desai v.
Abdul Mazid Kadri(2) A. R. Banerjee v. Secretary of
State,(3) K. N. Narayanappa Naidu v. Revenue Divisional
Officer, Sivakasi;(4) State of Rajasthan v. L. D’Silva,(5)
Sheikh Mohommad v. Director of Agriculture, Madhya
Pradesh;(6) Ramdeval Singh v. State of Bihar,(7) Anthony
D’Silva v. Kerala State;(8) Swatantra L. & F. Pct. Ltd. v.
State of Haryana,(9) and Swami Sukhanand v. Samaj Sudhar
Samiti.(10) This is also the
(1) TLR (1944) Bom. 90.

(2) AIR’ 1951 Bom 156.

(3) A.I.R. 1937 Cal. 680.

(4) A.I.R. 1955 Mad. 20.

(5) I.L.R. (1956) 6 Raj. 653.

(6) 1966 MPLJ 433.

(7) A.I.R. 1969 Pat. 131.

(8) A.I.R. 1971 Ker. 51.

(9) I.L.R. (1974) 2 Punj. 75.

(10) A.I.R. 1962 J. & K. 59
281
view expressed by a Full Bench of the Lahore High Court in
Abdul Sattar v. Mt. Hamida Bibi.(1)
The view to a contrary effect taken by the Allahabad
High court in Secretary of State v. Bhagwan Prasad (supra),
Panna Lal v. The Collector of Etah (supra) and State of U.P.
v. Abdul Karim
(supra) and by a Single Judge of the Madras
High Court in Venkateswaraswami v. Sub- Collector, Bezwada
(supra) and by a Single Judge of the Punjab High Court in
Hari Krishan Khosla v. State of Pepsu (supra) clearly do not
lay down good law and these decisions are” therefore, over-
ruled.

It is impossible not to feel sorry for the appellant in
this case, who was guilty of almost incredible folly by not
filing an application for reference under s. 14, sub-s. (1)
of the Hyderabad Land Acquisition Act, 1309 Fasli within the
time prescribed therein, and is thus precluded from claiming
what may be legitimately due to him by way of compensation.
But, the decision must depend upon the construction of the
section and the law must take its course. We trust that, as
assured by its counsel, the State Government of Maharashtra
will be generous enough to consider whether it should make
an ex gratia payment to the appellant of a sufficient amount
by way of compensation which will be Commensurate with the
market value of the land acquired as on the 28th of
February, 1958. It certainly was a piece of land of some
value as it was situate in the city of Aurangabad.

The result, therefore, is that the appeal must fail and
is dismissed. There shall be no order as to costs of this
appeal and of the courts below.

M. R.					   Appeal dismissed.
     (1) Pak L.R. 1950 Lah. 560 (F.B)
19-817SCI/78
282



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