2008 Supreme(Bom) 1088

Mh. L.J. 2009 1 856
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. AND A. P. DESHPANDE, J.
The State of Maharashtra - Appellant
Versus
Shri Ashok Laxman Wani - Respondent
FIRST APPEAL NO. 1119 OF 1997
IN L. A. R. NO. 158 OF 1989
ALONG WITH
FIRST APPEAL NO. 867 OF 1997
ALONG WITH
FIRST APPEAL NOS. 1199 OF 1996, 829, 866, 1118, 1120 OF 1997, 98/2000, 1510, 1511, 1512, 1513 OF 2006, 2051, 2052, 2053, 2054, 2055, 2056, 2057, 2058, 2059, 2060, 2061, 2062 OF 2007, 402, 403, 404 OF 2008,
ALONG WITH
CROSS OBJECTIONS (STAMP) NOS. 5817, 5818, 5819, 5826, 5828, 7415, 7416, 7417, 7419, 7421, 7423, 7424, 7426, 7427, 8203 OF 2008 AND CIVIL APPLICATION NOS. 7209 OF 1997, 2565, 2566, 3441, 3481, 3482, 3483, 3484 OF 2004, 2677 OF 2006, 3421, 3784 OF 2007, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987 1988, 1989, 1990, 1991, 3476, 3477, 3478, 3479, 3480, 3481, 3482, 3483, 3682, 3683, 3684, 3685, 3784 OF 2008
DECIDED ON : 31ST JULY 2008

Headnote:Land Acquisition Act, 1894 - Section 18-Applications seeking amendment as well for leading additional evidence.-The claimants are expected to act vigilantly and raise their appropriate claim for acquisition of their lands. However, even if the claimants, despite exercise of due diligence, are not able to make an appropriate claim for determination of market value of the land as on the date of issuance of Section 4 notification, in response to notice under Section 9 of the Act, still after amendment of the provisions of Section 25 of the Act, they can raise the claim for a higher amount in an application under Section 18 of the Act. As already noticed, these provisions require the applicants to submit their objections and grounds, inter alia, for inadequacy of the compensation awarded to the claimants and claim such other amounts as they deem fit and proper. The legislative intent appears to be that there should be appropriate and expeditious disposal of land references. The scheme of the Act does not contemplate amendment of Section 18 petition at a subsequent stage. In view of the legislative protection provided, there is hardly any prejudice being caused to an applicant-claimant if amendment to Petition is denied as it is the duty of every interested person to act diligently and in accordance with law.

       On the contrary, if petition under Section 18 is permitted to be amended at a late stage, it is likely to result in prejudice to the State or the acquiring authority. They will hardly be in a position to defend prayer for enhancement and the matter would have to be remanded to the Court of reference which again would result in delay of conclusion of proceedings and lastly such an approach does not appear to be permissible under the provisions of the Act.

       Land Acquisition Act, 1894 - Section 18-Civil Procedure Code, 1908, Sections 2(2) and 2(9)-Award made by Collector-Enhancement by Court.-The award made by the Collector is final in absolute terms vis-a-vis the Government and Court can only enhance it to the extent of the amount claimed by the claimants in the reference petition under Section 18 of the Act. The award so made by the Court in its judgment would then become a decree within the meaning of Section 2 Clause (2) and Section 2 Clause (9) of the Code of Civil Procedure.

       Land Acquisition Act, 1894 - Section 18-Specific period of limitation-Nature of.-In an application under Section 18(1) of the Act, the applicant is expected to raise a challenge to the awarded compensation by the Collector in his award under Section 11 of the Act and in terms of Section 18(2) of Act, the application shall state the grounds on which the objection to the Award is being taken. In other words, application under Section 18 is not a mere formality but is exercise of a substantive legal right in the manner specified in the provisions.

       The expression "shall" has been cautiously used by the Legislature which indicates its intent that the application should state grounds on which objection or exception to the award is being taken. It is expected of the applicant to be aware of what was the value of his land at the time of issuance of the Notification under Section 4 of the Act as that date alone is relevant for determining compensation payable to the claimants. He is at liberty to raise all factual and legal objections. This is a reference by the Collector to the Court of competent jurisdiction and proceedings of reference are expected to be carried out in accordance with law. Proviso to Section 18(2) spells out a limitation within which the application contemplated under Section 18 of the Act is to be filed. The period of limitation depending on the facts of a given case would be six weeks to six months. Six months being the outer case limit, in either of the events, where the applicant was present before the Collector at the time when the award was made or where he was served with a notice under sub-section (2) of Section 12 of the Act. This specific period of limitation is mandatory and is not flexible either in its term or by any enunciated of principles of necessary implication.

       Land Acquisition Act, 1894 - Sections 18 and 19-Function of Collector under.-There can be no doubt to the position of law that the Collector, while exercising powers under this Act is not a "Court" within the meaning of the provisions of the Act and for that matter even under legal parlance. Once an application is presented before the Collector and it conforms to the requirement of Sections 18 and 19 of the Act, even then the Collector has power to reject the reference if it is barred by time as the Collector or the Court for that matter have no power to extend the period prescribed under Section 18(2) of the Act. Thus, it is not correct to say that the function of the Collector is merely ministerial or can be effected without application of mind.

       Land Acquisition Act, 1894 - Sections 18 and 53-Civil Procedure Code, 1908, Order VI, Rule 17-Amendment of reference petition-Grant of.-The amendment of Memorandum of Appeal has to be understood in complete distinction to amendment of reference petition under Section 18 of the Act. The petition filed before the Collector is in compliance of a statutory provision and can only be filed within the prescribed period of limitation. The provisions of Order VI, Rule 17 of the Code of Civil Procedure would have no application to the proceedings before the Collector even with the aid of Section 53 of the Land Acquisition Act and Collector does not act as a Court within the meaning of Section 3(d) of the Act. In other words, there will be no occasion for an applicant to amend his application under Section 18 of the Act particularly when the period of limitation specified under Section 18(2) is over. It is a settled principle of law that the Collector is empowered even to refuse to make a reference and reject the same if it is barred by time. The Collector or the Court, for that matter, have no jurisdiction to condone the delay in filing an application under Section 18 of the Act. In other words under Section 18, if filed within time, will be referred to Court and would be incapable of being altered or amended with the aid of procedural provisions provided under the Code. The provisions of the Code are procedural in nature, while the provisions of the Land Acquisition Act are statutory and binding. The Land Acquisition Act is a special enactment intended to prescribe procedure and is a Code in itself particularly in relation to the proceedings taken under Part II of the Act and the Collector upon making a reference under Section 18 of the Act, loses its control and jurisdiction over such proceedings.

       The law of amendment which will enable a party to amend the Memorandum of Appeal could normally relate to certain circumstances, like potential, location of the acquired land or reference to certain transactions which for bona fide reasons and despite due diligence could not be placed before the Court. In law, it would be difficult to hold that a reference petition which has been filed before the Collector within time can be amended in relation to quantum and can be altered after the prescribed period of limitation is over. Section 18(2) of the Act prohibits certain dealings and proceedings after expiry of the prescribed period and what cannot be achieved directly can also not be achieved indirectly by adopting recourse to the procedural law. The procedural law cannot frustrate a substantive right that has accrued in favour of one of the parties to the proceedings. It is an admission of a party of which the other party would be fully entitled to take advantage, where every Claimant would know and at least is expected to know that the Collector is to fix the market value of the land as on the date of acquisition i.e. when Section 4 Notification is issued. The stage of issuance of notice under Section 9 of the Act is much later in point of time by which they are expected to collect all the evidence that may be necessary for proper determination of the claim of compensation. Even thereafter when award is made under Section 11, the claimants are at liberty to raise an issue for receiving higher compensation even more than the compensation which they may have claimed in response to the notice under Section 9 of the Act. A claimant being fully aware of his rights and having sufficient time to prepare his application for making a reference to the Court of competent jurisdiction, is expected to state grounds and his objections as to why the amount awarded by the Collector is not acceptable to him, while also stating the amount and grounds on which he claimed higher compensation. The application under Section 18 cannot be termed as a mere formality, but it is besides being a statutory application is an admission of facts and grounds stated therein by the party concerned. Withdrawal of an admission as a rule is impermissible, of course, to certain extra ordinary exceptions, permissible under the law.

       Land Acquisition Act, 1894 - Section 18 - Specific period of limitation - Nature of. - In an application under Section 18(1) of the Act, the applicant is expected to raise a challenge to the awarded compensation by the Collector in his award under Section 11 of the Act and in terms of Section 18(2) of Act, the application shall state the grounds on which the objection to the Award is being taken. In other words, application under Section 18 is not a mere formality but is exercise of a substantive legal right in the manner specified in the provisions.

       Land Acquisition Act, 1894 - Sections 18 and 53 - Civil Procedure Code, 1908, Order VI, Rule 17 - Amendment of reference petition - Grant of. - The amendment of Memorandum of Appeal has to be understood in complete distinction to amendment of reference petition under Section 18 of the Act. The petition filed before the Collector is in compliance of a statutory provision and can only be filed within the prescribed period of limitation. The provisions of Order VI, Rule 17 of the Code of Civil Procedure would have no application to the proceedings before the Collector even with the aid of Section 53 of the Land Acquisition Act and Collector does not act as a Court within the meaning of Section 3(d) of the Act. In other words, there will be no occasion for an applicant to amend his application under Section 18 of the Act particularly when the period of limitation specified under Section 18(2) is over. It is a settled principle of law that the Collector is empowered even to refuse to make a reference and reject the same if it is barred by time. The Collector or the Court, for that matter, have no jurisdiction to condone the delay in filing an application under Section 18 of the Act. In other words under Section 18, if filed within time, will be referred to Court and would be incapable of being altered or amended with the aid of procedural provisions provided under the Code. The provisions of the Code are procedural in nature, while the provisions of the Land Acquisition Act are statutory and binding. The Land Acquisition Act is a special enactment intended to prescribe procedure and is a Code in itself particularly in relation to the proceedings taken under Part II of the Act and the Collector upon making a reference under Section 18 of the Act, loses its control and jurisdiction over such proceedings.