TMI Blog2009 (7) TMI 1368X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were made. A large number of landholders being satisfied with the quantum of compensation awarded to them by the Land Acquisition Officer received the same without protest. 5. Some of the land owners, however, at the time of passing of the award being not satisfied with the amount of compensation awarded in their favour not only received the amount under protest but also filed applications for reference to the Land Acquisition Court in terms of Section 18 of the Act pursuant whereto and in furtherance whereof references to the civil Court were made. Admittedly enhanced amount of compensation, as determined by the Land Acquisition Judge, have also been paid. 6. Some of the land owners, however, filed applications for reference although they had not accepted the amount of compensation with protest which was rejected by the Land Acquisition Officer. Some of the awardees filed their applications for making reference after the period prescribed therefore. Those applications were also rejected. 7. It is stated that most of the claim petitions were determined upto 1979. Some of the land owners, however, formed an association SUTNI Sangam {(hereinafter called and referred to fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder protest and filed requisite applications for reference, the matters at their instance had been referred to the civil Court in terms of Section 18(2) of the Act. Indisputably, the appellant herein was not initially impleaded in the said writ petition. On or about 19.11.1984, it filed an application for impleading itself in the said writ petition which was allowed. By a judgment and order dated 6.3.1992, a learned Single Judge of the said Court allowed the said writ application directing that a mere protest or expression of dissatisfaction of the award without there being anything in writing would be sufficient for the concerned authorities to refer the matters to the civil Court. On the said premise, the Collector was directed to complete the process of reference within a period of one year therefrom. 11. Aggrieved by and dissatisfied with the said judgment and order dated 6.3.1992, intra court appeals were preferred both by the State Government as also by the Appellant. By reason of the impugned judgment, the writ appeal was dismissed, opining: 15. In so far as the category of persons who did not receive notices under Section 12(2) are concerned, the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gave statement stating that the acquired lands belong to him by inheritance. The quantum of compensation at ₹ 1,61,538/- per Hectare to be awarded is too low and the lands are abutting Salem - Dharmapuri National Highways and the adjoining lands are being sold at ₹ 25,00,000/- per acre and hence compensation must be paid on that rate and there is no proof. He also stated that the compensation amount may be paid to him and that he would receive the same under protest. For getting higher compensation, he requested to make reference to Sub-Court. In addition to make payment of compensation to the pattadar, a reference under Section 18 of the Land Acquisition Act will be sent to Sub-Court. 16. However, despite the same, no reference was made by the Collector suo motu. Representations, therefore, were made for reference by the Association on or about 10.6.1988. Reminder thereto was sent on 21.1.1991. As despite such representations and reminders thereto, no action was taken by the Land Acquisition Collector to make references under Section 18 of the Act, a writ petition was filed by the respondents herein praying, inter alia, for the following reliefs: ...this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was furthermore made for insurance of a direction upon the Land Acquisition Collector to refer those cases for grant of higher compensation before the civil Court in terms of Section 18 of the Act. By reason of a judgment and order dated 30.1.2001, the said writ petition was allowed. 19. We may place on record that the State Government did not raise any contention with regard to the maintainability of the orders of reference. Pursuant to or in furtherance of the said direction issued by the learned Single Judge, references were made by the Land Acquisition Collector. Appellant-Housing Board participated therein without any demur whatsoever. By reason of a judgment dated 19.4.2003, the Reference Court enhanced the amount of compensation from ₹ 1.50 per square foot to ₹ 6.00 per square foot. Appellant preferred appeals there against before the High Court. However, by an order dated 19.7.2004, on the appellant's failure to comply with the directions given by the Division Bench, the appeals were dismissed. The said order of the learned Single Judge dated 30.1.2001, by reason of the impugned judgment, has been upheld by the Division Bench of the High Court. 20. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amil Nadu Housing Board, adopted the said arguments of Mr. Ranjit Kumar. He furthermore contended that Tamil Nadu Housing Board being a person interested in the matter of enhancement of compensation should have been given due notice by the Reference Judge. Had such notice been granted in the writ petition, it could have been pointed out that the writ petition was not maintainable. 22. Mr. Jayant Mukhraj, learned Counsel appearing on behalf of the respondent, on the other hand, urged: 1. The provisions contained in sub-section (1) of Section 18 being procedural in nature, filing of an application for reference in writing is not imperative. 2. By reason of the representations made by the land owners that they were not satisfied with the amount of compensation awarded in their favour, they called upon him to make a reference which has been agreed upon by the Land Acquisition Collector and consequently the State Government and the appellant herein are estopped and precluded from contending that Sub-section (1) of Section 18 is mandatory in nature. 3. The land owners of the area being poor agriculturists and having not been informed about their legal rights, no illegality ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested. 28. The finality of the awards is, however, subject to review by the Reference Court under Section 18 read with Section 31(2) or Section 30 of the Act. Except for the finality of these three factual matters, there is nothing in the Act making the award final as regards its legality. Moreover, the use of the word final in the statute only means that there would be no appeal. The use of the expression final or conclusive in a statutory provision has been interpreted by Lord Denning, M.R. in R. v. Medical Appeal Tribunal (1957) 1 QB 574, 583 in the following words: The word 'final' is not enough. That only means 'without appeal'. It does not mean 'without recourse to certiorari'. It makes the decision final on the facts, but not on the law. Notwithstanding that the decision is by a statute made ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done. Requirement of this section deals only with approximation and does not require exact measurement. An important process that takes place under this section is demarcation which consists of marking out boundaries of land to be acquired, either by cutting trenches or fixing marks as posts. Object is to facilitate measurement and preparation of acquisition plan and also let the private persons know what land is being taken. It is to be done by requiring a body that is the Government department or company whichever be the case. Obstruction under Section 8 and Section 4 are offences punishable with an imprisonment not exceeding one year and with fine not exceeding fifty rupees. 32. Section 9 requires the collector to cause a public notice displayed at convenient places expressing the Government's intention to take possession of the land and requiring all persons interested in the land to appear before him personally and make claims for compensation before him. In effect this section requires the Collector to issue two notices; one in the locality of acquisition and other to occupants or people interested in the lands to be acquired. It is a mandatory provision. 33. Next s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect to the three factual matters of the area, value of the land and the apportionment of the compensation among the interested persons. 37. Besides the same, there exists neither any express provision that no order or proceeding taken under the Act shall be called in question in any court, nor any implied intendment barring the jurisdiction of the civil court. There is no finality attached to any of the proceedings taken under the Act or as to the validity of the award, which cannot be called in question in a court of law on any judicially recognized grounds. A perusal of the scheme also reveals that there is no machinery for determining all questions of law, which may conceivably arise under the Act. The Act also does not contain a machinery for restoration of any land, which may be unauthorizedly taken away. 38. Even those who had not made any application for reference in terms of Section 18 of the Act have, however, a right to obtain a similar amount of compensation in terms of Section 28A thereof. Thus, only because at one stage, a holder of a land does not file any application for reference, the same would not mean that they do not have any further remedy at all. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjections of the land owners or land holders in regard to one or all the matters as enumerated hereinbefore. 43. The law does not contemplate that even before an award is made, a general or vague objection can be entertained by the Collector. Objection to the award, therefore, must be specific. When a reference is made, the court shall ordinarily be bound by the terms of the reference. The Reference Court does not have a plenary jurisdiction. It does not have any original jurisdiction to entertain an application directly from the Collector or from the land holders. 44. Once an award is made, having regard to the conclusiveness and finality attached thereto, the Collector has also a statutory duty to offer payment of the awarded amount subject, of course, to the provisions for reference. For the aforementioned purpose, Section 18 of the Act is required to be read with the provisos appended to Section 31 of the Act. The person interested may question the correctness or legality of the award on one or the other grounds specified in Section 18 of the Act. He, even, for the purpose of payment of the amount of compensation and/ or acceptance thereto, would be governed by the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to make a reference under Section 18 is circumscribed by the conditions laid down therein and one such condition is a condition regarding limitation to be found in the proviso. The Collector acts as a statutory authority. If the application is not made within time, the Collector will not have the power to make reference. In order to determine the limitation on his own power, the Collector will have to decide whether the application presented by the claimant is or is not within time and specify the conditions laid down under Section 18. Even if the reference is wrongly made by the Collector, the court will have 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 Section 18. If the reference is not proper there is no jurisdiction in the court to hear the reference. It was, therefore, held that it is the duty of the court to see that the statutory conditions laid down in Section 18 including the one relating to limitation, have been complied with and the application is not time-barred. It is not debarred from satisfying itself that the reference which it is called upon to hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of Section 18. The Collector/LAO, therefore, is not a court when he acts as a statutory authority under Section 18(1). therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to Sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a court under Section 5 of the Limitation Act. 48. In State of Karnataka v. Laxuman AIR 2006 SC 24 : 2005 (8) SCC 709, it was opined: 9. As can be seen, no time for applying to the court in terms of Sub-section (3) is fixed by the statute. But since the application is to the court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963, would be attracted and the application has to be made within three years of the application for making a reference or the expiry of 90 days after the application... 49. The cause of the owners of the land is purported to have been espoused by the respondent - Association. Association is stated to have been registered under the Societies Registration Act in the year 1970. There is, however, nothing on record to show as to whether it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of making such an application, indisputably, the period of limitation provided for therein must be resorted to. However, there cannot be any doubt whatsoever that a statute of limitation should receive strict construction. 56. Reference has been made to Karnataka State Road Transport Corporation v. KSRTC Staff Workers' Federation and Anr. [1999] 1 SCR 733 : (1999) 2 SCC 687, wherein in regard to a matter relating to conditions of employment of the workers of the Karnataka State Road Transport Corporation, the Association was held to have a locus standi to challenge the Government Order and consequent notification issued by the corporation, stating: 9. So far as the locus standi of the Union in the present proceedings is concerned, it must be kept in view that the Corporation itself by its order dated 24-12-1987 granted recognition to the Union as the sole bargaining agent for its members. It was noted by the office memorandum of the Corporation dated 24-12-1987 that the Federation having secured 53.04% of the votes polled at the Corporation level in the referendum held on 11-12- 1987, the Corporation was pleased to accord recognition to the respondent-Federation as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same could not have been entertained by the Collector, being beyond his jurisdiction. So far as the third category of claimants is concerned, the time for making application would indisputably run from the date of communication thereof. As far as the land holders belonging to the fourth category of claimants are concerned, the question being of some importance would be discussed a little later. 61. We may notice a few precedents operating in the field. 62. In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr. [1962] 1 SCR 676 : (1962) 1 SCR 676, this Court referring to Section 12 of the Act held: It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression from the date of the Collector's award in the proviso to Section 18. It is because communication of the order is regarded by the legislature as necessary that Section 12(2) has imposed an obligation on the Collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or communicated to the concerned public servant. The facts of the case show that though the order of dismissal was passed on June 3, 1949, and a copy thereof was sent to other 6 persons noted thereunder, no copy was sent to the concerned public servant who came to know of it only on May 28, 1951, and that too only through another officer. On these facts, the Court held, rejecting the contention that the order became effective as soon as it was issued, that the mere passing of the order of dismissal would not make it effective unless it was published and communicated to the concerned officer. 67. In Land Acquisition officer v. Shivabai and Ors. [1997] 3 SCR 647 : (1997) 9 SCC 710, this Court held: ...The limitation begins to run from the date of the notice as per the proviso to Section 18(2). The date of the award and the date of the receipt of the compensation were incidentally the same. Under these circumstances, it must be presumed that they were present on the date when the award was made and the compensation was received without any protest. Under these circumstances, they are not entitled to seek any reference. 68. In Parsottambhai Maganbhai Patel and Ors. v. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly refused to exercise its discretionary jurisdiction after an inordinate delay of more than 5 years from the date of the order of District Judge and more than 10 years from the date of the order of the Land Acquisition Collector. Under these circumstances, we do not think that it is a case warranting interference by this Court under Article 136. 74. Indisputably, those who received compensation without any protest keeping in view the second proviso appended to Section 31 must be held to have expressed no reservation in regard thereto whatsoever. 75. Objections, however, appeared to have been filed in printed forms contending that all awards should be subject to objections and payments would be received on protest. Raising of such an objection in response to a notice under Section 9 of the Act, in our opinion, cannot have the same effect as if an application has been filed for reference under Section 18 of the Act. 76. We may, however, notice that in terms of the proviso (b) appended to Sub-section (2) of Section 18, the maximum period fixed for filing of an objection is six months from the date of the Collector's award. The statute, therefore, imposed a duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Restrictions are made in larger public interest. Such restrictions, indisputably must be reasonable ones. (See Balram Kumawat v. Union of India; Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. and Union of India v. West Coast Paper Mills Ltd.) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation. 58. Expropriatory legislation, as is well-known, must be given a strict construction. 80. We may, however, hasten to add that we do not intend to lay down a law that the protest in regard to making of an award must be done in a manner specified expressly. When an application for reference is filed, protest to the award is implicit as has been held by this Court in Ajit Singh and Ors. v. State of Punjab and Ors. (1994) 4 SCC67 : (1994) 4 SCC 67. 5. Having regard to the contiguity of these lands the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is October 4, 1978 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f jurisdiction and operates as a valuable weapon in the hands of the court to prevent clogging or obstruction of the stream of justice.... 83. In H.M. Kelogirao and Ors. v. Govt. of A.P. and Ors. (1997) 7 SCC722 : (1997) 7 SCC 722, this Court was dealing with a case where the appellants had not accepted the award which was put in issue by them in the Writ Petition. It was in the aforementioned extraordinary situation and particularly having regard to the fact that they had filed writ petitions, this Court granted time to them to seek reference under Section 18 of the Act in exercise of its equitable jurisdiction as also in the interests of justice. 84. A foundational fact, therefore, in that case for reference has been made out. Such is not the position here. As indicated hereinbefore, no application for reference has been made in these cases either by the land holders or by the Association for a long time. therefore, in our opinion, no case for exercising our extraordinary jurisdiction under Article 142 of the Constitution of India has been made out. 85. Reliance has also been placed on Orissa Industrial Infrastructure Development Corpn. v. Supai Munda and Ors. AIR 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such an order on the ground that it cannot go behind the decree, but in law there does not exist any bar on a Reference Court to review its earlier order if there exists an error apparent on the face of the record in terms of Order 47, Rule 1 of the Code of civil Procedure. Such a jurisdiction cannot be denied to the Reference Court. The Act 68 of 1984 is a beneficial statute and, thus, the benefits arising thereunder cannot ordinarily be denied to a claimant except on strong and cogent reasons. 88. In Union of India v. Pramod Gupta (Dead) by LRs. and Ors. AIR 2005 SC 3708 : (2005) 12 SCC 1. 104. It may not, thus, be correct to contend that the said provisions are so imperative in character that waiver thereof is impermissible in law or would be against public interest. Grant of interest in terms of Section 28 of the Land Acquisition Act is discretionary. Only rate of interest specified therein is mandatory. Section 34 of the Act ex facie, however, appears to be imperative in character as the word 'shall' has been used. A discretion vested in the court, it is trite, may not be exercised where the right to claim interest has been waived expressly by the parties and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be raised therefore. In absence thereof it would not be possible for us to enter into the debate of constitutionality of the said provisions. The Division Bench of the High Court had rightly or wrongly opined that the doctrine of promissory estoppel has no application. The fact that the said doctrine may apply even in relation to a statute is beyond any dispute as has been held by this Court in Mahabir Vegetable Oils (P) Ltd. v. State of Haryana12, A.P. Steel Re-Rolling Mill Ltd.9, Pawan Alloys and Casting (P) Ltd. v. U.P. SEB13 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector ETIO14. 90. The appeals preferred by the Tamil Nadu Housing Board, however, stand on a different footing. Therein, the writ petition was allowed by a learned single judge of the High Court. Pursuant thereto or in furtherance thereof, reference was made. A finding of fact had been arrived at. A prayer was also made for reference to the civil Court. The Land Acquisition Officer assured them that a reference shall be made. The promise, however, was not kept. In the aforementioned situation, the writ petition was filed. 91. The judgment of the Single Judge having been ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regard to the principles of promissory estoppel, held bound to fulfil his promise. 94. In Nagar Palika Nigam v. Krishi Upaj Mandi Samiti and Ors. 2008 AIR SCW 7114, this Court held: 8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [1962] 2 SCR 159 : AIR 1961 SC 1596 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta [1965] 3 SCR 354 : AIR 1965 SC 1728; when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the Page 4544 preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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