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1978 Supreme(Goa) 4
Goa High Court
TITO MENEZES, J.C.
Dy. Collector, Northern Sub-Division Panaji - Appellant
Versus
A comunidade de Bambolim - Respondents
Appeal No. 138 of 1968
Decided On : 28 March 1978
Joaquim Dias, Govt. Advocate, for Appellant; J.A. Lobo, for Respondent.
A reference under S. 18 of the Land Acquisition Act, 1894 can be made only to the Principal Civil Court of original jurisdiction within the taluka and the State has no locus standi in such a reference.
Headnote:
LAND ACQUISITION ACT, 1894 - S. 18, 3(d), 53 - CIVIL PROCEDURE CODE, 1908 - S. 2(4) - LIMITATION ACT, 1963 - S. 3 - APPEAL - JURISDICTION - REFERENCE UNDER S. 18 OF THE LAND ACQUISITION ACT - COURT TO WHICH REFERENCE TO BE MADE - PRINCIPAL CIVIL COURT OF ORIGINAL JURISDICTION - DISTRICT COURT - WAIVER OF OBJECTION TO JURISDICTION - FILING OF APPEAL BY COUNSEL WITHOUT WAKALATNAMA - VALIDITY.
Fact of the Case:
The Deputy Collector, North Goa, filed an appeal against an award passed by the Comarca Court in a reference under S. 18 of the Land Acquisition Act, 1894. The respondent raised preliminary objections that the State was a necessary party and that the appeal was barred by limitation. The appellant contended that the Comarca Court had no jurisdiction to entertain the reference and that the appeal was filed by a counsel without a wakalatnama.
Finding of the Court:
The court held that the State had no locus standi in a reference under S. 18 of the Act and therefore the appeal was not liable to be dismissed on the ground that the State was not a party. The court also held that the appeal was barred by limitation as it was filed after the expiry of the limitation period prescribed under the Limitation Act, 1963. The court further held that the Comarca Court had jurisdiction to entertain the reference as it was the Principal Civil Court of original jurisdiction within the taluka. The court also held that the appeal was not filed by the Deputy Collector or by his duly authorized agent as no wakalatnama was filed by the counsel who filed the appeal.
Issues: 1. Whether the State is a necessary party in a reference under S. 18 of the Land Acquisition Act, 1894? 2. Whether the appeal was barred by limitation? 3. Whether the Comarca Court had jurisdiction to entertain the reference? 4. Whether the appeal was filed by the Deputy Collector or by his duly authorized agent?
Ratio Decidendi: 1. The State has no locus standi in a reference under S. 18 of the Act. 2. The appeal was barred by limitation as it was filed after the expiry of the limitation period prescribed under the Limitation Act, 1963. 3. The Comarca Court had jurisdiction to entertain the reference as it was the Principal Civil Court of original jurisdiction within the taluka. 4. The appeal was not filed by the Deputy Collector or by his duly authorized agent as no wakalatnama was filed by the counsel who filed the appeal.
Final Decision: The appeal was dismissed as it was barred by limitation and was not filed by the Deputy Collector or by his duly authorized agent.
2. Three preliminary objections on points of law were raised by Dr. Ataide Lobo, for the respondent. The first objection is that the State is a necessary party and that the appeal having been filed by the Deputy Collector is liable to be dismissed as being improperly filed. I reject this contention. In a reference under S. 18 of the Act the State has no locus standi. It follows that in appeal against an award passed by a Court upon such a reference also the State has no locus standi. It has been held by Tendolkar, J. in In re Jerbai Framji Metha, AIR 1950 Bom 243 that the only person who is entitled to appear in a reference relating to compensation is the Collector and hence the Government has no locus standi.
3. The second contention is that this appeal had to be filed under the Civil P. C. 1908. The present appeal was initially filed under Portuguese Law on 25-8-1967 in the Comarca Court. Thereafter the Memo of Appeal was filed in the Comarca Court on 2-11-1967. The reply of the respondents to the Memo of Appeal was filed in the Comarca Court on 22-11-1967. The file was remitted to this Court and received here on 31-5-1968. The steps taken in this appeal up to 31-5-1968 were taken due to ignorance of law on the assumption that the procedural law applicable was the Portugues Law and not the Indian Law. The limitation to file an appeal against an award by the Court under the Limitation Act, 1963 is three months. This appeal is therefore liable to be dismissed as being barred by limitation.
There can be no dispute that the appeal was filed after the limitation period was over. An application for condonation of delay was filed by Shri Dias on behalf of the appellant on 1-3-1978. Against this application it is contended by Dr. Lobo that delay cannot be condoned because the delay was caused by mistake of law which is no excuse. Shri Dias argues that though the mistake was one of law, the circumstances of the case were such that the mistake should be considered as sufficient cause. He states that the mistake had occurred due to the confused conditions prevailing at that time as to the procedural law in force regarding pending proceedings. However, it appears to me that in this particular case that explanation is not available. The original proceeding in the present case was not a suit filed under the Portuguese law, but was a reference made under the Act. The original proceeding was not before the Comarca Court as is alleged, but was before the Principal Judge of civil jurisdiction. The Act was an Indian law extended to this Territory after liberation. It is specifically provided in S. 53 of the Act that proceedings under it should be governed by the Civil P. C. 1908. The provisions of S. 53 are simple and are couched in plain language. Its wording leaves no margin for any interpretation other than that the Civil P. C. 1908 was the only Act applicable. The appellant himself states in his application dated 24-6-1967 that he was filing a recurso in the Apelacao without pre
