ASHOK KUMAR Vs. UNION OF INDIA
LAWS(J&K)-1999-3-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 22,1999

ASHOK KUMAR Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

O.P.SHARMA,J. - (1.) THE short and the only question involved for consideration in this Letters Patent Appeal is, whether an application U/s 18 of the Land Acquisition Act requiring the Collector that the matter be referred for determination to the court is within time or not is to be decided by the Collector or the court ? The learned Single Judge (Hon'ble Mr. Justice T.S. Doabia) answered this question as follows :- "This question of limitation would depend upon the fact as to whether the award was passed in the presence of parties or otherwise. This is a question of fact. Collector cannot decide the same. The question as to whether a reference is barred or not, has necessarily to be decided by the Reference Court. The Collector, Land Acquisition cannot pronounce upon the matter. He is simply to refer the matter to the Reference Court. It is the Reference Court, who is to ultimately decide as to whether the reference application was within limitation or suffered from any other lacuna, which prevents its decision on merits. This aspect of the matter was considered by a Full Bench of Punjab and Haryana High Court in the case reported as Sher Singh v. Union of India, 1984 R.R.R. 655 : AIR 1983 Punjab and Haryana 107......" The appellants challenge the finding on the ground that neither the judgments relied by the writ court lay down such a proposition nor it is warranted by Section 18 of the Land Acquisition Act (for short the Act).
(2.) MR . V. Bhushan Gupta, appearing for the appellant, submits that both the judgment relied upon by the writ court in fact support the conclusion that the Collector must decide the question of limitation before making a reference. He has also placed reliance on the decision of the Apex Court in Mohammad Hasnuddin v. State of Maharashtra, AIR 1979 SC 404. However, the contention of Mr. Kotwal, appearing for the respondents, is that the respondents had no notice of the award and, therefore, the order of Collector is bad and was rightly set aside with the direction to make reference to the court. We have gone through the judgments relied by the writ court, but we regret express our inability to find any support to sustain the conclusion reached by him. Our reasons for the same are as follows :- One of the questions answered by the Full Bench, in Swatantra L and F Pvt. Ltd. v. State of Haryana, AIR 1975 Punjab and Haryana 52, is regarding the power of Collector to decide whether application for making reference under section 18 of the Act is within time ? It reads as under :- ".......It is a well known principle of law that any provision of law which authorises a competent authority to receive an application and to take action thereon if it is made within time, gives an inherent power to that authority to reject the same and not to act thereupon if it is made beyond time. The Collector has not been given any authority to condone the delay and, therefore, any reference made on a time barred application will be illegal and not in accordance with the provisions of the Act......" It is the failure to notice this conclusion because of which a different finding has been reached by the writ court. As a matter of fact the question before the Full Bench was, whether a District Judge could go behind the reference and determine whether the reference made was valid or not when the Collector had failed to address himself to the requirement of Section 18 of the Act ? The Full Bench answered this as follows :- "It is thus evident that the majority of the High Courts are of the opinion that it is open to the District Judge to go behind the reference and to determine whether the reference made to him was valid or not, that is, the conditions precedent prescribed in Section 18 of the Act had been complied with, one of which is that the application to the Collector for reference to the District Judge should have been made within the prescribed time. If it has been made beyond time and the Collector does not reject it, the District Judge will be bound to adjudicate on the matter in case an objection is raised by the respondent and to reject the reference if it is found that the application to the Collector was made beyond the time prescribed in the proviso to sub-section (2) of Section 18 of the Act......." So the Full Bench has repeatedly held that Collector, before making a reference, has to decide whether it is within limitation and when he does not do so, the reference court will be bound to adjudicate the same.
(3.) SIMILARLY . in Sher Singh v. Union of India (FB), AIR 1983 Punjab and Haryana 107, the Bench after referring to a catena of decisions, held as under :- "The statute provides in no uncertain terms for the mode of assailing the award, the manner in which and to whom it is to be presented and the ground on which it can be pressed. Not only that, the statute is further careful in prescribing not one but three specific periods of limitation. If the claimant is present at the rendering of the award he can avail the right to claim a reference against the same only within six weeks therefrom. However, if he is absent at that material time the law gives him certain latitude and within six months from the date of award he can present a similar reference. In case a notice under section 12(2) has been issued the prescribed time of limitation is again only six weeks from the date of receipt of such a notice. Public policy and public interest are involved in the expeditious finalisation of acquisition proceedings........." Again relying on an earlier Full Bench decision in Radhay Sharma Gupta v. State of Haryana, A.I.R. 1982 Punjab and Haryana 519, the Full Bench held that :- "From the aforesaid authoritative commnucation and even otherwise on principle, it seems to be plain that the rights of neither the citizen nor that of the State can be kept in a flux or in a state of ambivalence for years because the land is acquired for a public purpose and in cases of emergency may even be taken possession of and utilised for the said purpose during the interRegulation m. Therefore, without first holding that a written application under section 18 for a reference was duly filed and that it had been so done within the period of limitation no right for enhancement for compensation can arise in favour of the claimant......." As a matter of fact, there has hardly been any diversions of Judicial opinion in respect of scope of section 18 of the Act. The Bombay High Court in G.J. Desai v. Abdul Mazid Kadri, AIR 1951 Bombay 156 held as under :- "The power of the Collector to make a reference is circumscribed by the conditions laid down in Section 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, 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 get the court to compel the Collector to make a reference, if they satisfy the court that their application was within time." So the law is settled that the requirements of Section 18 of the Act must be fulfilled before the matter can be referred to the court. Not otherwise. ;


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