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1988 DIGILAW 467 (KER)

ANNA v. SPECIAL TAHSILDAR

1988-10-06

G.VISWANATHA.IYER

body1988
Judgment :- 1. Land belonging to the petitioner was acquired for a public purpose under the Kerala Land Acquisition Act, 1961 (21 of 1962), (the Act). Notice of award under S.12 (2) of the Act was served on the petitioner on October 5,1983. The petitioner had a right to apply for reference for enhanced compensation under S.20 within six weeks thereof, i.e. on or before November 16, 1983. But she applied for the reference only on November 28,1983, which was beyond time. It was rejected as such by the first respondent Land Acquisition Officer (Collector under the Act) on April 23,1984. 2. The petitioner seeks the issue of a writ of mandamus to the first respondent directing him to refer to court under S.20 of the Act, the question of the compensation payable for the land acquired. She submits that she was suffering from enteric fever and was bedridden from October 30, 1983 to November 28, 1983. The factum of her illness is borne out by the medical certificate Ext.P3 produced along with the Original Petition. There was thus sufficient cause for not making the application in time and the delay should be condoned under S.5 of the Limitation Act, 1963. 3. It is the contention of the petitioner that S.5 of the Limitation Act is made applicable to proceedings under the Land Acquisition Act by S.29 (2) of the former Act. This is the view taken in two recent Bench decisions of the Gujarat High Court in Mohan Vasta v. State of Gujarat 1985 (1) Gujarat Law Reporter 293 and, following it, in Bhikkabhai Chhitabhai v. State of Gujarat (1988) 22 Indian Judicial Reports 99. 4. Mohan Vasta dealt with the question whether the delay in filing an application for reference under S.18 of the (Central) Land Acquisition Act, 1894. could be condoned by the Collector under S.5 of the Limitation Act. The contention of the Government Pleader, appearing for the Collector, based on the decision in Kerala State Electricity Board v. Kunhaliumma A.I.R. 1977 SC. 282 was that S.5 could not be invoked in aid by the landowner as the provisions of the Limitation Act applied only to Courts, and the Collector functioning under the Act was not a Court. The contention of the Government Pleader, appearing for the Collector, based on the decision in Kerala State Electricity Board v. Kunhaliumma A.I.R. 1977 SC. 282 was that S.5 could not be invoked in aid by the landowner as the provisions of the Limitation Act applied only to Courts, and the Collector functioning under the Act was not a Court. The Bench overruled the contention observing: "Now, therefore, the Supreme Court only considered the question as to whether the petition which was filed under S.16(3) of the Indian Telegraph Act, 1885 was governed by Art.137 of the Limitation Act, 1963 or not. That was the only question which was considered. There the question was not as to whether the delay, if any, could or could not be condoned if a petition is presented for that purpose and there are good, valid or no reasons." The Bench then went on to consider S.29 (2) of the Limitation Act and held that the Land Acquisition Act was a special law, that the person applying for reference was an applicant as defined in S.2 (a) of the Limitation Act and that his petition for reference was an'application' as defined in S.2 (b) of that Act. The Court then proceeded to quote from an earlier decision of the same court in Special Civil Application No. 3613 of 1981 where it had been held: "Once the question of applicability of S.5 arises in the context of the operation of S.29(2) of the Limitation Act to any special or local law, the principles of S.4 to 24 get attracted by necessary implication by the very force of S.29(2). Under these circumstances when a statutory authority having quasi judicial functions enforces the given period of limitation under a special or local law as the case may be, by the combined operation of S.29 (2) read with S.4 to 24 of the Limitation Act, (sic) clearly gets attracted to such proceedings before the statutory authority exercising quasi judicial powers under the concerned special or the local statute." It was therefore held that the Collector could entertain the application for reference after considering whether the delay should be condoned or not. 5. 5. Counsel for the petitioner contends, on the strength of this decision that the Limitation Act applies to proceedings before the Land Acquisition Officer and that by virtue of S.29(2) read with S.S, the Land Acquisition Officer has the power to condone the delay in filing an application under S.20 of the Kerala Land Acquisition Act, (corresponding to S.18 of the (Central) Land Acquisition Act. 1894). 6. Even at this juncture, I must point out that there is in Gujarat, a provision, namely sub-section (3) of S.18 introduced by a local amendment, which reads as under: "(3). Any order made by the Collector on ah 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 S.115, Civil Procedure Code, 1908." Therefore the Collector functioning under S.18 of the Central Act is treated as a court subordinate to the High Court, subject to the revisional jurisdiction under S.115 of the Code of Civil Procedure, 1908. 7. Decisions of this court have repeatedly laid down that the provisions of the Limitation Act are applicable only to proceedings before courts strictu sensu. They will not, by their own force, apply to proceedings before Tribunals or other authorities constituted or functioning under various statutes. Even as early as in Kunhibi . Land Acquisition Officer AIR 1960 Kerala 80. this court had held that S.12 (2) of the Limitation Act. 1908 was not applicable to proceedings before the Land Acquisition Officer. This decision of the Single Judge was affirmed in Kunhibi v. Land Acquisition Officer ILR 1960 Kerala 1132. Both these decisions were of course rendered under the provisions of the Limitation Act, 1908. The position is not in any manner altered by the Limitation Act of 1963. Even now the position is that the provisions of the Limitation Act are applicable only to proceedings before courts and not to others (unless made applicable by special provisions like S.108 of the Land Reforms Act, 1963). (Vide Jokkim Fernandez v. Amina Kunju Umma 1973 KLT. 138 (FB.), Thilakan v. Mankai Coir Vyavasaya Co-operative Society 1978 KLT 256, Ulahannan Chacko v. Pareed Marakkar 1978 KLT 330, Commissioner of Agricultural Income Tax v. Thalayar Rubber Industries 1981 KLT 398 (FB), besides others). (Vide Jokkim Fernandez v. Amina Kunju Umma 1973 KLT. 138 (FB.), Thilakan v. Mankai Coir Vyavasaya Co-operative Society 1978 KLT 256, Ulahannan Chacko v. Pareed Marakkar 1978 KLT 330, Commissioner of Agricultural Income Tax v. Thalayar Rubber Industries 1981 KLT 398 (FB), besides others). The decision of the Supreme Court in Nityanand v. L.I.C. of India AIR 1970 S.C. 209 and Suseela v. Ramananda Prasad AIR 1976 SC 117 are also in point. In the latter case, it was stated that the Collector functioning under the Kasi Area (Restoration of Lands to Raiyats) Act was not a court, though he had been vested with certain powers under the Code of Civil Procedure, and therefore there was no question of his exercising powers under S.5 of the Limitation Act. All these decisions and others were reviewed by this court in the decision in Raman Pillai v. State of Kerala 1982 KLT 507, and it was Held that S.5 of the Limitation Act did not apply to an application for reference under S.20 of the (Kerala) Land Acquisition Act. 8. The question of applying the Limitation Act to proceedings before the Land Acquisition Officer does not therefore arise as the said officer is not a 'court'. S.29 (2) does not advance the case of the petitioner as the very Act of which it forms part is inapplicable to such proceedings before the Land Acquisition Officer. In this view, S.5 of the Limitation Act cannot be called in aid to condone the delay in filing an application under S.20 of the (Kerala) Land Acquisition Act. The Gujarat High Court has not considered this aspect of the matter in the two decisions relied on by the petitioner. The view expressed in Mohan Vasta's case that Kerala State Electricity Board v. Kunhaliumma AIR 1977 SC. 282 was concerned only with the limited question whether Art.137 applied to applications under S.16(3) of the Indian Telegraph Act, 1885, ignores the discussion in the judgment based on Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1970)1 SCR 51 and Nityananda Joshi v. Life Insurance Corporation of India AIR 1970 SC. 209. 282 was concerned only with the limited question whether Art.137 applied to applications under S.16(3) of the Indian Telegraph Act, 1885, ignores the discussion in the judgment based on Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1970)1 SCR 51 and Nityananda Joshi v. Life Insurance Corporation of India AIR 1970 SC. 209. The extract of the dictum in the latter decision, made by the Supreme Court, is particularly opt: "Further under S.5 of the Limitation Act only a Court is enabled to admit an application after the prescribed period had expired The Labour Court is not a court within the meaning of the Limitation Act." The Gujarat decisions are apparently justifiable under the local amendment to S.18 extracted in para 6 supra treating the Collector (Land Acquisition Officer) as a court subordinate to the High Court for the purposes of S.115 of the Code of Civil Procedure, 1908. If however the ratio of the decisions is that S.29 (2) attracts the provisions of S.5 of the Limitation Act, 1963 to applications under S.18 of the (Central) Land Acquisition Act, 1894, I must express my respectful dissent from the same. 9. The point raised by the petitioner is concluded against her by the decision in Raman Pillai's case. I dealt with this matter in detail only because of the stress laid by counsel for the petitioner on the two subsequent decisions of the Gujarat High Court, which prima facie supported his contentions. In view of the decisions of this court and of the Supreme Court on the applicability of the Limitation Act to tribunals and other authorities, and the existence of Clause.3 of S.18 in Gujarat, I do not think these two decisions can be availed of by the petitioner. 10. Admittedly the petitioner's application was out of time. It was rightly rejected by the first respondent Land Acquisition Officer. The petitioner is not therefore entitled to any relief. The Original Petition is dismissed, without however any order as to costs.