Research › Browse › Judgment

Gujarat High Court · body

1998 DIGILAW 282 (GUJ)

SPECIAL LAND ACQUISITION OFFICER v. NATHAJI KACHARAJI

1998-04-30

C.K.BUCH, Y.B.BHATT

body1998
Y. B. BHATT, J. ( 1 ) THESE are appeals filed on behalf of the State of Gujarat under Sec. 54 of the Land Acquisition Act read with Sec. 96. C. P. C. , challenging the common judgment and awards passed by the Reference Court under Sec. 18 of the said Act We do not propose to discuss in detail the various tactual contentions which may arise in these appeals, but restrict ourselves to questions of law, which are pertinent in the context of the present order. ( 2 ) THE principal contention raised by the learned Counsel for the appellant is as regards the period of limitation applicable to applications for making a Reference under Sec. 18 of the said Act, and the different circumstances under which such period of limitation is to be considered and computed. During the course of hearing and discussion we have had the opportunity of referring to a number of decisions of this Court as also of the Supreme Court. During the course of hearing our attention has also been drawn to a decision of a Division Bench of this Court case of Kalidas n. Mehta and Ors. v. Stare of Gujarat and Ors. , reported in 1998 (1) GLH 634 : [ 1998 (2) glr 13511 (hereinafter referred to as the said decision ). It is in the context of this particular decision that we are required to pass the present order. ( 3 ) THE said decision lays down that in order to apply the period of limitation, as provided for under Sec. 18, sub-sec. (2) of the said Act, the phrase "date of the Collectors award" must be interpreted so as to mean such date when the award is either communicated to or is known by the party, whether actually or constructively. The said decision lays down that the date of the Collectors award does not necessarily mean mere knowledge of the making or publication of the award, but also means actual or constructive knowledge of the contents of the award. In paragraph 5 of the said decision, the learned Division Bench has referred to and relied upon two decisions of the Supreme Court, in the case of Raja Harish Chandra raj Singh v. Deputy Land Acquisition Officer, reported at AIR 1961 SC 1500 , and in the case of State of Punjab v. Mst. In paragraph 5 of the said decision, the learned Division Bench has referred to and relied upon two decisions of the Supreme Court, in the case of Raja Harish Chandra raj Singh v. Deputy Land Acquisition Officer, reported at AIR 1961 SC 1500 , and in the case of State of Punjab v. Mst. Qaisar Jehan Begum, reported at AIR 1963 sc 1604 . Relying upon me said two decisions, the learned Division Bench concluded and laid down the law in para 5 of the said decision to the effect that, in the context of Sec. 18 (2) of the Land Acquisition Act, the knowledge must relate to the essential contents of the award, which must be made known to the land holder, either actually or constructively. ( 4 ) IN para 6 of the said decision the Bench referred to a decision of this Court in the case of Rasulkhanji Sardar Mohamad Khanji v. H. P. Rathod, 3rd Special land Acquisition Officer. Ahmedabad and Anr. . reported at 1975 (XVI) GLR 911, wherein it is held that there can be no valid notice under sub-sec. (2) of Sec. 12 until the essential contents of the award were brought home to the parties affected by actually communicating the award. In the very said paragraph, the learned division Bench took support to the view expressed, from a decision of the Supreme court in the case of Tota Ram v. State of U. P. and Ors. , reported in 1997 (6) SCC 280 . ( 5 ) IN the context of the aforesaid law laid down by the learned Division Bench in the said decision, we are of the opinion that (1) subsequent decisions of the supreme Court have apparently escaped the attention of the learned Division Bench and (2) that the decision of the Supreme Court in the case of Tota Ram (supra) is in the specific context of the computation of limitation prescribed for applications under Sec. 28-A of the said Act, which confers specific and distinct rights and specifically provides for a distinct and separate period of limitation. This limitation is to be computed in a manner very different from the computation of the period of limitation prescribed under Sec. 18 (2) of the said Act. This limitation is to be computed in a manner very different from the computation of the period of limitation prescribed under Sec. 18 (2) of the said Act. In fact the limitation prescribed by the proviso to Sec. 28-A. specifically provides that in computing the prescribed period of limitation, the time required for obtaining a copy of the award shall be excluded. Obviously, there is no such specific provision, nor any decision even indirectly implying exclusion of such period, while computing limitation for the purpose of Sec. 18 (2) of the said Act. ( 6 ) IT would, therefore, appear from the said decision of the learned Division bench, that even where Reference Courts are dealing with or deciding the question of limitation, even if arising under Sec. 18 (2) of the said Act, actual or constructive knowledge of the contents of the award must be imputed to the applicant, and that the time taken for obtaining certified copies of the award should be excluded while computing the period of limitation. ( 7 ) IN our opinion, the ratio laid down in the said decision of the learned Division Bench is doubtful and requires reconsideration in view of the following decisions of the Supreme Court. ( 8 ) THE Supreme Court has held in the case of Poshetty v. State of A. P. , reported in 1996 (11) SCC 213 to the effect that a copy of the award need not be supplied to the person affected together with the notice under Sec. 12 (2) of the said Act. It necessarily follows, in our opinion, that imputation of the knowledge of the making of the award or publication of the award is sufficient, and the knowledge, whether actual or constructive, us to the contents of the award, is irrelevant and immaterial for computation of the period of limitation under Sec. 18 (2 ). In our opinion, a similar view has also been expressed by the Supreme Court in the case of State of Punjab v. Satinder Bir Singh, reported at 1995 (3) SCC 330 , wherein it has been held that the notice under Sec. 12 (2) need not contain the details of the award, and by necessary implication, the said decision lays down that the said notice need not be accompanied by a copy of the award. We. We. therefore, read into this decision the necessary consequence that what must be imputed to the applicant is only the knowledge of the making or publication of the award and not the knowledge, whether actual or constructive, of the contents of the award. ( 9 ) WE have also considered other decisions which may possibly have a bearing on the peripheral aspects which may arise from the consideration of this specific issue. This includes the decision of a Full Bench of this Court in the case of Memon ibrahim v. Officer on Special Duty. reported at 1994 (1) |xxxv (1)1 GLR 296, as also a decision of the Supreme Court in the case of Md. Hasnuddin v. Slate of maharashtra, reported at AIR 1979 SC 404 . ( 10 ) IN the light of the various Supreme Court decisions considered by us (and all of them are not referred to in the present order), we are also of the opinion that the decision of this Court in the case of (1) Damor Fataji v. State of Gujarat, reported at 1987 (2) GLH (UJ-6) 5 and (2) Rajat Hirabhai Motibhai v. Deputy collector, Land Acquisition and Rehabilitation, Panam Project, Godhra, reported at air1985 Guj. 170 : [ 1985 (1) GLR 275 ], are no longer good law. ( 11 ) WE may also note here that another specific legal issue arises in the present group of matters. The question is as to whether the Reference Court, after reaching a conclusion that the Reference is time-barred, has a power to condone the delay on an application made for the purpose, or whether the Reference Court, in the absence of such a power, is bound to reject the Reference. ( 12 ) IN this context, we are of the opinion that it is possible, on an examination of the correct interpretation of the decisions of the Supreme Court in the case of md. Hasnuddin v. State of Maharashtra, reported at AIR 1979 SC 404 and the Full bench decision in the case of Memon Ibrahim v. Officer on Special Duty, reported at 1994 (1) GLR 296 . to conclude that the Reference Court has no power of condonation of delay. ( 13 ) ANOTHER reason on our part for expressing the above view can best be expressed as under :13. to conclude that the Reference Court has no power of condonation of delay. ( 13 ) ANOTHER reason on our part for expressing the above view can best be expressed as under :13. 1 It is well settled law that the Reference Court is not merely a principal court of original jurisdiction and/or is not functioning as a civil Court constituted under the Bombay Civil Courts Act. but functions as a Special Forum or the Special tribunal inasmuch as it is assigned this function and jurisdiction under the Land acquisition Act. particularly in view of Sec. 3. which defines the word "court". Thus. a Special Forum specially constituted to perform special functions under a special statute, obviously functions within the parameters of such special statute and is subject to the limitations imposed by the relevant special statute. On an examination of the various provisions of the Land Acquisition Act and in particular. Secs. 1 8 (2) and 28-A of the said Act, we find that each of these provisions provides not merely a separate period of limitation, but also provide for a different scheme tor computation of such period. Each of these two provisions (and we are referring to only two of such provisions by way of illustration), provides for a different mode of computation of the period of limitation, and the criteria for determination of the period of limitation are also specifically different. To be more specific. Sec. 28-A contains an intrinsic and specific provision that the period of time for obtaining certified copy of the award (the award in question) shall be excluded from the computation of the period of limitation. Section 18. sub-sec. (2) does not contain any such or similar exclusion. This dissimilarity between the two provisions appears to us to indicate the Legislative intent in this regard. We are, therefore, inclined to express an opinion that the Legislature did not intend, in relation to references under Sec. 18, to confer any incidental benefit to the land holders-applicants, by excluding such period for obtaining certified copies and/or extending the period of limitation in any other manner. Another reason for holding such a view is that if the Legislature considered it necessary, the power to condone delay exercisable by the special forum constituted under the Land Acquisition Act. would have been specifically conferred upon such special forum by the statute itself. Another reason for holding such a view is that if the Legislature considered it necessary, the power to condone delay exercisable by the special forum constituted under the Land Acquisition Act. would have been specifically conferred upon such special forum by the statute itself. In the absence of such a special conferment of specific power, in relation to Sec. 18 (2), such a power cannot be impliedly read into the statute. ( 14 ) INASMUCH as this is a question of general public importance, and as we are informed that there is no specific decision, either of the Supreme Court or of any other High Court on this question, we are of the opinion that this question also requires to be decided by a Larger Bench. ( 15 ) IN the premises aforesaid, we are of the opinion that the said decision of the Division Bench requires reconsideration and for this purpose we direct the Registry to obtain appropriate directions of the Honble Chief Justice for placing these matters before an appropriate Larger Bench. .