STATE OF WEST BENGAL v. Ramkali Bhattacharjee — 1977 DIGILAW 352 (CAL)

JUDGMENT 1. THIS appeal at the instance of the State Government arises out of an application under section 8 (a) of Act II of 1948 read with section 18 of the Land Acquisition Act. The respondent had filed cross-objection in all these appeals. Ramkali bhattacharjee (Appeal No. 338 of 1958), Rampada Chatterjee (Appeal no. 339 of 1958) and Jatindra Nath sarkar (Appeal No. 340 of 1958) being aggrieved by the award of compensation made application under section 8 (a) of Act II of 1948 read with section 18 of the Land Acquisition Act, the claim for compensation arose in this case for the purpose of Assam Rail link Project. A considerable portion of land lying in the town of Siliguri was acquired by the Government under Act II of 1948. In appeal No. 338 of 1958, 1. 98 acres of Rupni land was acquired. The award has been made in respect thereof to the extent of rs. 5, 900/ -. Notice of award under section 12 (2) of Act I of 1894 was served on Ramkali Bhattacharjee on 6th february, 1951. Application under section 8 (a) of the Act for reference was filed on 7th September, 1951. claiming the value of the land at the rate of not less than Rs. 2000/- per cottah. In appeal No. 339 of 1958 the notice under section 12 (ii) of the Land acquisition Act was served on 6th february, 1951 and the reference was filed on 7th September, 1951. In so far as the F. A. 340 of 1958 is concerned it appears that the notice was served. on 6th February, 1951 and the reference was filed on 17th June, 1951. 2. MR Chakraborty on behalf of the appellants contended that the order of the learned Collector sending the reference is prima facie illegal as the reference was clearly out of time under section 12 (2) of the Land Acquisition Act. It is argued by Mr. Chakraborty that the condition precedent for making the reference is to be found in section 18 of the Act. If it is found that the reference is Out of time the learned Collector has no jurisdiction to make the reference and the reference is void ab-initio. Mr. Gupta however contended that once the reference is made the authority hearing the reference cannot hold that the reference is not maintainable. If it is found that the reference is Out of time the learned Collector has no jurisdiction to make the reference and the reference is void ab-initio. Mr. Gupta however contended that once the reference is made the authority hearing the reference cannot hold that the reference is not maintainable. Once, it is argued, the reference is made the question of limitation cannot be decided by the Civil Court. Alternatively Mr. Gupta argued that if no reference is made by the Land Acquisition Collector or a wrong reference is made by the said Collector there is no remedy to the aggrieved party and as such the order of reference by the Land Acquisition Collector is an administrative order and cannot be corrected by the High Court before the Constitution came into force even if the reference is illegal. Mr. Gupta further argued that under Act II of 1948 there is no provision of notice as contained in section 12 (2) of the Land acquisition Act. If there is no provision in section 7 or 8 (2), the question of Limitation does not arise in a matter of reference under the said Act. 3. THE point for decision is therefore whether the reference is competent in view of the bar of limitation as contained in section 18 of the Land acquisition Act and (2) whether an application for reference under section 8 (2) of the West Bengal Land Requisition and Acquisition Act, 1948 the provision regarding limitation under act I of 1894 applies. It must be stated that on the point, whether the limitation under section 18 of the Act applies, there was a divergence of opinion between the different High Courts, Mr. Chakraborty relied upon the cases reported in 41 C. W. N., 1291 66 C. L. J., 134, (Anantaram v. Secy, of State) and a. I. R. 1944 Bom., 200 in support of his contention. Mr. Gupta however relied upon the cases reported in A. I. R. 1929 all., 769 (Secretary of State v. Bhagwan Prasad) A. I. R. 1932 All., 597; a. I. R. 1943 Mad., 327 (Venkatesawraswami v. Sub-Collector), a. I. R. 1963 All, 556, A. I. R. 1958 Pan., 490 (Hari Krishan v. Stale of Pepsu) and A. I. R. 1967 Himachal Pradesh, 26 (L. A. Collector v. Janki Dass) in support of his contention. 4. THE case reported in A. 1r. 1929 All., 769 (Secy. 4. THE case reported in A. 1r. 1929 All., 769 (Secy. of State v. Bhagwan Prasad) was a case arising out of an award made by the Collector on 15th June, 1923. Notices were ordered to be issued by the Collector to the two owners on 30th October, 1923. They were actually served on Bhagwan prasad on 18th January, 1924 and on mr. Anandi Kunwar on 23rd January, 1924. The owners applied for a reference being made to the collector within six weeks of the service of notice on them. A reference was accordingly made. A preliminary objection was taken on behalf of the Collector that the reference was time-barred. The learned Judge refused to entertain the plea of limitation raised by the present respondent and held that it was not open to him to consider whether the reference was barred by time and he investigated the case and decided what was the amount payable to the owners. On behalf of the appellant, secretary of State, it was urged that the reference should have been thrown out by the learned Judge as barred by time. The contention of the Government Advocate was that the award having been made on 15th June, 1923 the period of limitation for the application by the owners expired on 15th december, 1923 and the mere fact that notice on them was not served till after the expiry of the limitation was immaterial. It was held by the Hon'ble judges constituting the Division Bench that "it was for the Collector and Collector alone to decide whether he should make a reference and the "court" had no authority under the Act to throw out the reference on the objection of the very party making the reference. As regards the question of ultra virus, it cannot be denied that it is for the Collector and Collector alone to decide whether he would make the reference. Thus, the making of a reference is within the jurisdiction and authority of the Collector. No doubt, he has certain rules to guide him. If, after considering the rules and the application before him, he decides to make a reference, the reference cannot be questioned by the Court. The Collector may make a mistake in the use of his discretion, but he is entitled to decide rightly or wrongly. No doubt, he has certain rules to guide him. If, after considering the rules and the application before him, he decides to make a reference, the reference cannot be questioned by the Court. The Collector may make a mistake in the use of his discretion, but he is entitled to decide rightly or wrongly. If he decides to make a reference his act is within his jurisdiction, for he is entitled to act either way, i. e., either to make a reference or not to make a reference The said judgment was followed by different High Courts, namely, the same case was followed in a. I. R. 1932 All., 597 (Secy, of State v. Bhagwan), A. I. R. 1943 Mad, 327 (Venkateswaraswami v. Sub-Collector), a. I. R. 1963 All, 556, (State of u. P. v. Abdul Karim) A. I. R. 1958 Punjab, 490 (Hari Krishan v. State of pepsu) and A. I. R. 1967 (Himachal pradesh 26 (L. A. Collector v. Janki das. We are not inclined to refer to them in this judgment. Once a reference is made, according to these decision, the question of limitation or validity of the reference cannot be raised or gone into by the Court. This view, however, is not accepted to be the correct view by our High Court. In a case reported in A. I. R. 1937 Cal., 680 (Ananta Ram v. Secy. of State) at page 685, it has been held that when the jurisdiction is challenged, that court has the power and it is its duty to decide it. The Special Judge derives his jurisdiction from the reference made under section 18 by the Collector. If the reference made by the Collector is ultra vires, the Special Judge would have no jurisdiction to proceed further and must stop the reference in limine. If the question of power of the Collector to make the particular reference be raised before the Special Judge, he must decide it. It is on this principle that the special Judge must decide the question, if raised, as to whether the Collector made the reference beyond time and if he finds it to be so, reject the reference without proceeding further : 30 Bom., 275. It is on this principle that the special Judge must decide the question, if raised, as to whether the Collector made the reference beyond time and if he finds it to be so, reject the reference without proceeding further : 30 Bom., 275. The same view was taken by tie bombay High Court in a case reported in A. I. R. 1944 Bom., 200 (Mahadeo v. Mamlatdar) and A. I. R. 1951 Bom., 156 (G. J. Desai v. Abdul Mazid. In A. I. R. 1961 Bom. 156 (Morlays Bittani v. Roshanlal) the Division Bench of the bombay High Court speaking through chief Justice Chagla held inter alia as follows:- "now turning to the section itself it is clear, and the position is not disputed since the P. C. laid down in Ezra v. Secretary of state, 32 LA. 93 : (32 Cal. 605 p. C.), that the functions of the Collector in making an award 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. It is open to the claimants either to accept the order or to call upon the Collector to make a reference which would result in a judicial determination by a Court. Now the power of the Collector to make a reference is circumscribed by the conditions laid down in S. 18 and one important condition is the condition to be found in the proviso. That proviso lays down the period within which the application has got to be made. Therefore if the application is made which is not within time the Collector would not have the power to make the reference. In order to determine the limits of his own power it is clear that the Collector would have to decide whether the application presented by the claimants is or is not within time and satisfies the conditions laid down by the proviso. Assuming that the Collector is wrong in the view that he takes as to the maintainability of the petition and refuses to make a reference, it would always be open to the claimants to come to Court and to compel the Collector to make a reference if they satisfy the Court that their application was within time. Assuming that the Collector is wrong in the view that he takes as to the maintainability of the petition and refuses to make a reference, it would always be open to the claimants to come to Court and to compel the Collector to make a reference if they satisfy the Court that their application was within time. On an application under s. 45 what the court will have to consider is whether the Collector failed to discharge his statutory duty, and one of his statutory duties is to make a reference if the application is within time. Therefore in order to decide the petition under S. 45 the court would have to consider the question of limitation and take a contrary view to the view taken by the Collector if the Collector was wrong in his decision. Equally so if a reference was made by the Collector which was not a proper reference under S:18, it would be for the Court to determine the validity of the reference because the very jurisdiction of the court to hear a reference depends upon a proper reference being made under S. 18 and if the reference is not proper, there is no jurisdiction in the Court to hear it. " 5. IN the case reported in A. I. R. 1944 Bom., 200 (Mahadeo Krishna v. Mamlatdar of Alibag) it was held that it was the duty of the Court to see that the statutory conditions laid down in section 18 of the Land Acquisition Act have been complied with and that the court was not debarred from satisfying itself that the reference which it was called upon to hear was a valid reference. Their Lordships held in both the cases that the Court can go beyond the order of reference and see that the reference has been made in accordance with the conditions laid down in section 18 of the Land Acquisition Act. If it is found that either any of the conditions are not fulfilled or made beyond time, then the Court has a power to hold that the reference is invalid and may not proceed further with the reference and must dispose of the said application. In a case reported in A. I. R. 1955 mad., 23 (Narayanappa v. Revenue divisional Officer) the Division Bench of the Madras high Court speaking through mr. In a case reported in A. I. R. 1955 mad., 23 (Narayanappa v. Revenue divisional Officer) the Division Bench of the Madras high Court speaking through mr. Justice Govinda Menon held inter alia after consideration of a number of cases namely, A. I. R. 1929 All., 769 (Secy. of State v. Bhagwan Prasad), a. I. R. 1932 All., 597 (Secy of State v. Bhagwan. A. I. R. 1943 Mad., 327 (Venkateswaraswami v. Sub-Collector)as also A. I. R. 1930 Bom., 275 in re. Govt. and Narsu and other cases as follows:-"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 imperfection 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. " In the said case their Lordships of the Madras High Court over-ruled the earlier decision reported in A. I. R. 1943 Mad., 327 (Venkateswaraswami v. Sub-Collector. In our view, in view of the judgment of our High Court reported in A. I. R. 1937 Cal., 680 (Ananta ram. v. Secy. of State) which specifically held that the Court hearing the reference, has jurisdiction to proceed with the reference, and if the reference was beyond time can reject the reference without proceeding further. 6. SECTION 18 of the Land Acquisition Act is in the following terms : "18. Reference to Court- (1)Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of 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 suite 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 6 weeks from the date of the Collector's award; (b) in other cases, within 6 weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within 6 months from the date of the collector's award, whichever period shall first expire. " Any person interested, who has not accepted the award made under section 11 of the Land Acquisition Act, may by written application to the Collector require the matter be referred to the Court for determination of the Court, the land and the amount of compensation etc. In sub-section (2) of section 18 it has been further provided that every such application should be made within certain time for the purpose of reference. Therefore, if the application is made, the Collector will have to consider whether the terms as provided in section 18 have been complied with. These conditions as provided in section 18 of the Act are conditions precedent for the exercise of powers. All these matters are conditions precedent for the exercise of powers of reference under the said section. When a jurisdiction has been given to a particular officer by any provision of law and such jurisdiction can only be exercised under certain condition, the condition must be fulfilled for the exercise of jurisdiction or otherwise the jurisdiction cannot be exercised. Similarly if in this case any of the terms of section 8 is not fulfilled the Collector cannot exercise the jurisdiction and if exercise such jurisdiction which is contrary to the condition and restriction laid down in the section, the Courts have every power to strike down the reference as ultra vires. 7. THE next point urged by Mr. Gupta is that the question of limitation is one of the questions of fact and therefore this cannot be raised in this proceeding after the reference is made. It is argued that the reference may be barred and therefore it can be legal and not without jurisdiction. In support of the contention Mr. Gupta referred to the case reported in A. I. R. 1964 S. C. 907 (Ittagavira v. Varkey. It is argued that the reference may be barred and therefore it can be legal and not without jurisdiction. In support of the contention Mr. Gupta referred to the case reported in A. I. R. 1964 S. C. 907 (Ittagavira v. Varkey. In our opinion, this case does not help mr. Gupta at all. We are of the opinion that the exercise of power under section 18 of the Land Acquisition Act can only be made according to the provision of the said section. The condition preceded for the exercise of power is to be found in the section itself. If the conditions is not satisfied, the collector has no jurisdiction to make the reference. If it is found that the application for reference is barred under section 18 (2) proviso, the collector has no jurisdiction to make the reference and therefore the reference is ultra vires of the Act itself. Mr. Gupta then contended that the limitation as provided in section 18 (2) of the land Acquisition Act has no application in respect of the reference to the court under section 8, sub-section (2)of Act II of 1948. Section 8 of W. B. Act II/48 (before amendment) is in the following terms:- "8 (1) The Collector shall In every case- (a) where any person aggrieved by an award made under sub-section (2), of section 7 makes an application requiring the matter to be referred to the Court; or (b)where there is any disagreement with regard to the compensation under sub-section (3) of section 7 between the Collector and the person to whom possession of any land is delivered under section 6, refer the matter to the decision of the court. (2) The provisions of the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of any reference made to the Court under sub-section (1. " 8. MR. Gupta argued that provisions of section 8 (2) of the Land Acquisition Act shall apply mutatis mutandis in respect of any reference made to the Court under sub-section (1) of section 8. The provision of reference according to Mr. Gupta, is under section 18 of the Land Acquisition Act. Under section 8 of West bengal Act II of 1948 there is no provision of issuance of a notice after an award is made by the Collector and therefore the notice under section 12 (2) cannot be applied. The provision of reference according to Mr. Gupta, is under section 18 of the Land Acquisition Act. Under section 8 of West bengal Act II of 1948 there is no provision of issuance of a notice after an award is made by the Collector and therefore the notice under section 12 (2) cannot be applied. It is argued that the words "mutatis mutandis" only make it clear that when changes are necessary in so far as the provision of land Acquisition Act is concerned for application under the proceeding under the West Bengal Land Requisition and acquisition Act, it shall be applicable to the proceeding for reference under act II of 1948. It is argued that as there is no provision for notice, no changes are necessary to be applied. In our opinion, this argument is wholly mis-conceived. Under section 7 of Act ii of 1948 there is a provision for payment of compensation on principle laid down in section 23 (1) of Act I of 1894. Under section 7 (2) it has also been provided that the award must be made under section 11 of Act I of 1894. Section 8 (1) (b) of W. B. Act II of 1948 provides that in case of disagreement about the payment of compensation, reference can be made to the decision of the Court and under section 8 (2) it has also been provided that the provision of the Land Acquisition Act shall apply mutatis mutandis in respect of any reference made to the Court under sub-section (1. Under section 18 of the Land Acquisition Act, the collector has a power to make the reference. Section 18 (2) proviso provides for the limitation for making the reference. Applying the principle regarding the application of the Land acquisition Act. mutatis mutandis, in our opinion, will also bring in the provision of section 18 in full including the proviso which attracts section 12 (2)of the Land Acquisition Act. In our opinion, therefore, the provision for notice as provided in Section 12 (2)and the limitation for making reference under section 18 of the Land Acquisition Act will also apply in a matter of reference tinder section 8 of Act II of 1948. If section 18 (2) is made applicable, in our opinion, the period of limitation as contained in section 18 (2)read with section 12 (2) of the Land acquisition Act must also apply. If section 18 (2) is made applicable, in our opinion, the period of limitation as contained in section 18 (2)read with section 12 (2) of the Land acquisition Act must also apply. In our opinion, therefore, there is no merit in this contention. Applying the principles as laid down hereinbefore it appears to us that the reference made in the three appeals were barred by limitation. In the order of reference it has been stated that the notice of award under section 12 (2) dated 5th february, 1951 was served on 6th february, 1951. Application of reference was made on 7th September, 1951. In so far as F. A. S. Nos. 338-39 of 1958 are concerned, the notice having been served on 6th february, 1951, the application for reference should have been made before the expiry of 6 weeks from the elate of service of notice under section 18 (2) (b) of the Act. Similarly in f. A. No. 340 of 1958 notice under section 12 (2)of the Act was served on 6th february, 1951 and the application for reference was filed before the Collector on 27th June, 1951 beyond 6 weeks from the date of the service. In F. A. No. 340 of 1958 Mr. Bakshi contended that in any case the appeal which was filed within 6 months from the date of the award is not barred and in support of his contention relied upon the Division Bench judgment reported in 57 C. W. N., 283 (Birendra Nath v, Union of India. In the said judgment it was held that "so far as the first alternative contained in section 18 (2) (b) of the Land Acquisition Act, 1894, is concerned, the provision implied in sec. 8 (2) of the west Bengal Land (Requisition and acquisition) Act, 1948, that it will apply to references made thereunder mutatis mutandis, is meaningless. The only provision which applies in such a case is the second alternative under sec. 13 (2) (b) of the Land Acquisition act, 1894, and that alternative in six months from the date of the award. 8 (2) of the west Bengal Land (Requisition and acquisition) Act, 1948, that it will apply to references made thereunder mutatis mutandis, is meaningless. The only provision which applies in such a case is the second alternative under sec. 13 (2) (b) of the Land Acquisition act, 1894, and that alternative in six months from the date of the award. " in our opinion, in view of the Supreme court, judgment reported in A. I. R. 1966 S. C., 1538 (Kajari Lal v. Union of india) which specifically overruled the case reported in 57 C. W. N. 283 (A. I. R. l953 Cal., 595, (Birendra Nath v. Union of India) this judgment cannot be said to be good law. Mr. Bakshi however contended that the point raised is not one which was overruled by the supreme Court. In our opinion, in view of the facts, the Supreme Court held that "there is no doubt that if the provisions of section 18 (2) can be said to apply to an application made for reference under S. 8 of the Act, the periods of limitation prescribed by subsection (2) of section 18 of the Central act would be attracted; and if they apply, the appellant's application originally made to respondent No. 3 for reference is barred by time" in that view of the matter, in our opinion, the supreme Court specifically held in the said judgment that section 18 (2) of the Land Acquisition Act applied in all forces and the periods of limitation prescribed in section 18 (2) that is (1) 6 weeks from the date of the notice under section 12 (2) of the Act and (2) 6 months from the date of the award it no such notice is served, are applicable. In our view therefore the application made in F. A. No. 34c of 1958 within 6 months is also barred being beyond 6 weeks from the date of service of notice under section 12 (2)of the Land Acquisition Act. In that view of the matter, in our opinion, the reference being time barred, the proceeding for reference is without jurisdiction and the reference should be dismissed in limned. 9. In that view of the matter, in our opinion, the reference being time barred, the proceeding for reference is without jurisdiction and the reference should be dismissed in limned. 9. THIS would have been sufficient for our purpose to dispose of the appeals but as the point of limitation was sought to be urged for the first time before us and as we have allowed the said point to be urged and due notice was served on the other side, we heard both the parties at length on the question of limitation. Mr. Gupta argued that we should also give our findings on the question of valuation as assessed by the Land acquisition Judge. The Land acquisition Collector assessed the valuation in F. A. No. 338 of 1958 comprising 1. 93 acres of lands at the rate of Rs. 3000/- per acre of rune land. The Land Acquisition Judge however assessed the valuation at the rate of rs. 900/- per cottah. In so far as the f. A. s. Nos. 338 and 339 of 1958 are concerned it appears that these lands are of inferior quality of the acquired land of Ramkali Bhattacharjee and rampada Chatterjee, that is respondents in f. A. Nos. 338-39 of 1958 which was assessed at the rate of Rs. 900/-per cottah and on that score reduced the market value of the land of jatindra Nath Sarkar, respondent in f. A. No. 340 of 1958 at Rs. 500/- per cottah. We will deal with the F. A. Nos. 338-339 of 1958 together and F. A. No. 340 of 1958 separately. In both these appeals Nos. 338-339 of 1953 there was a cross-objection filed by the claimant. In the State Government's appeal they have challenged the valuation as fixed by the Land Acquisition judge and contended that the valuation of the land should have been assessed by the Collector in respect of the land and building etc. The respondent however filed a cross-objection claiming that the valuation should be fixed at least at the rate of Rs. 200/-per cottah. Number of documents were exhibited by both the parties. The Government of West Bengal exhibited number of lease deeds for the purpose of arriving at the market value in quest-on. The referring claimant exhibited number of kobalas between 1948 and 1949. Generally those kobalas were of lands with structures and also small pieces of lands. 200/-per cottah. Number of documents were exhibited by both the parties. The Government of West Bengal exhibited number of lease deeds for the purpose of arriving at the market value in quest-on. The referring claimant exhibited number of kobalas between 1948 and 1949. Generally those kobalas were of lands with structures and also small pieces of lands. It has been held by the Supreme Court that the small pieces of lands generally cannot be an index for arriving at the market value of the big land. There cannot be any doubt that the valuation of small pieces of lands cannot be comparable unit of bigger plots. In our opinion, the learned Judge was right in this regard in order to arrive at the market value of the land, more so, when there are evidence before the court about the sale transaction. It appears however that the learned judge valued the property at the rate obtainable from the kobalas of small plots. In our opinion, the learned judge was wrong in finding about the valuation of the market price on the basis of kobalas of small plots. In that view of the matter, the price as fixed by the learned Judge cannot stand and must be set aside and the matter should have to be remitted back for the determination of the market value of the land in question. We are of the opinion that the learned Judge was equally mistaken in taking the price of smaller plot in consideration for fixing the valuation of the bigger one. In that view of the matter, in our opinion, this appeal by the State Government must also succeed and the cross-objection must also fail. In F. A. No. 340 of 1968, the award must also be set aside on the same principle. In f. A. 340 of 19-58 an argument was made about the loss of business but as we are setting aside the award, we have not dealt with it. 10. IN our opinion, however, the reference being barred by limitation is incompetent and the appeal must, therefore, be allowed and the order passed by the Land Acquisition Judge is set aside. There will be no order as to costs. In view of the order in the main appeal, the cross-objections are also dismissed without costs. 10. IN our opinion, however, the reference being barred by limitation is incompetent and the appeal must, therefore, be allowed and the order passed by the Land Acquisition Judge is set aside. There will be no order as to costs. In view of the order in the main appeal, the cross-objections are also dismissed without costs. If the respondents have withdrawn any money in excess of the money awarded by the land Acquisition Collector, the same must be returned within 6 months from today. In default, the State Government will be entitled to take steps for recovery of the said money. The said money will however carry an interest at the rate of 6% after the expiry of 6 months from the date. Appeal allowed.