1. MUHAMMAD SHARIF, C. J.--This is an appeal against the judgment and decree of the learned District Judge, Mangla Dam, Mirpur, dated 27-6-1970 by which the reference application of the respondent was accepted and the respondent was held entitled to receive the enhanced rate of the land under reference which the other co-villagers of the respondent had been allowed in an earlier reference case decided on 11-6-69.
2. The facts giving rise to this appeal are that lands in village Judhal Tehsil Mirpur were acquired by the Government for the construction of the Mangla Dam reservoir, of which 9 kanals 4 marlas and 7 sersai of land belonging to the respondent was also acquired. The other villagers not being satisfied with the rates allowed by the collector in his award dated 31-8-1965 applied to the Collector for making reference to the Court of the District Judge, Mangla Dam Affairs, Mirpur, and the learned District Judge by his judgment and decree dated 11-6-69 enhanced the rates of the various kinds of lands acquired by the Government. Mohammad Shafi, the respondent made an application to the collector on 31-7-69 after the judgment of the reference Court praying that his case be also referred to the Reference Court because he has been allowed lower rates than the market value of the land acquired. He also showed in this application that inadvertantly his name was not entered in the previous reference application though he had signed the Wakalat Mama' given to the counsel who had filed the earlier Reference Application. The Government resisted the Reference Application and the learned District Judge framed the following issues: (1)Whether compensation of the land under reference was fixed below market value, if so, how much ? 0. P. applicant.
3. (2)What would be the effect of the signature of the applicant on the previous power of attorney attached with the previous file? 0. P. applicant.
4. (3)Whether reference is time-barred? 0. P. non-applicant.
5. (4)Relief?
6. The learned District Judge decided issue No, 1 in favour of the applicant. On issue No, 2 the learned District Judge found that the signatures of the applicant appeared on the power of attorney but through over-sight of the Vakeel of the applicant his name could not be put down in the first Reference Application and the effect of this omission is that the applicant had a right to file a reference. On issue No, 3 the learned District Judge found that for the determination of issue No, 1 the reference is not time-barred ; besides, when a reference though time-barred on its face is once submitted by the Collector it would be deemed that the reference escaped the restriction of the limitation and as such this issue is decided against the Government. It is against this judgment and decree of the District Judge, dated 27-6-70 that the Government has filed the present appeal.
7. It was argued by the learned Government Advocate that the reference application is time-barred.
8. Section 18 under which the reference was made by the Collector is reproduced below:-- "(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among, the persons interested.
(2) The application shall state the grounds on which objection to the award is taken : (a)if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b)in other cases, within six weeks of the receipt of the notice from the Collector under section 12, subsection (2), or within six months from the date of the Collector's award whichever period shall first expire."
9. The Government Advocate argued that the Collector gave his award on 31-8-65 but the reference application was made on 31-7-69 and that the reference application had to be made in any case within 6 months of the date of the award and that the application is hopelessly time-barred.
10. Learned counsel for the respondent argued that it is not open to the Reference Court to go behind the reference and to hold that it will refuse to act on the reference on the ground that it is time- barred. He cited PLD 1960 Kar. 826, AIR 1932 All. 597, PLD 1950 Lah. 370 and AIR 1940 Pesh. 35 in support of his contention.
11. It was laid down in PLD 1960 Kar. 826 that: "The civil Court cannot go into the question of limitation after the reference had been made by the Collector and that the award by the civil Court would not be vitiated on the ground of limitation."
12. AIR 1929 All. 769, AIR 1943 Mad. 327, AIR 1932 All. 597, AIR 1940 Pesh. 35 and PLD 1950 Lah. 370 were referred to in this judgment. It was laid down in AIR 1929 All. 769 that: "Making reference is an act within the jurisdiction and authority of the Collector. Having made 'the reference it is not open for the Collector or the Secretary of State to say that the reference was wrongly made, although ground for saying so may be that the application was belated by the owner. The 'Court' does not sit on appeal over the Collector and the Land Acquisition Act does not give any authority to the Court either in express terms or by implication to go behind the reference."
13. It was laid down by Kuppuswa mi Ayyar, J. in AIR 1943 Mad. 327 that: "It is the duty of the Collector before he makes the reference to decide on the materials before him whether he should make the reference or not, and if he decides to make and does make a reference, it is not open to the Land Acquisition Court to go behind it. It is not open to the High Court or any other authority to interfere when the Land Acquisition Officer decides to make and does make a reference. In the case of a reference under section 18 it is not the application of the party which gives jurisdiction to the civil Court, but it is the reference made by the Land Acquisition Officer. An application may be given and the reference may not be made. Consequently, if the application was not validly made, then it will only indicate that the reference was made without adequate grounds. But that will not make it anytheless a reference which would give the Court jurisdiction to inquire into the question referred to."
14. It was laid down by Mukerji and Bannet, JJ. in AIR 1932 All. 597 that: "After a reference has been made under the Land Acquisition Act it is not open to the Collector or the Secretary of State to say that the reference was wrongly made although the ground for saying so may be that the application by the owner was belated i. e., in contravention of section 18 (2). The `Court' does not sit on appeal over the Collector and the Act does not give any authority to the 'Court' either in express term or by implication, to go behind the reference and to see whether the Collector acted rightly or wrongly. It is the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so."
15. It was laid down in AIR 1940 Pesh. 35 by Almond, J. C. and Mir Ahmed, J. that: "The decision on a question of limitation on an application under section 18 rests with the Collector and not with the District Judge. Section 19 also indicates that the question of limitation is to be decided by the Collector. The District Judge cannot sit as a Court of Appeal over the Collector when the latter has come to the conclusion that the application is made within time. The function of the District Judge is confined to giving a decision on objections raised."
16. In the Full Bench case PLD 1950 Lah. 370 the following two questions were referred to the Full Bench: (1)Whether the Acquisition Court can go behind the reference made by the Collector under section 18 of the Land Acquisition Act, if it is within limitation?
17. (2)Whether the reference by the Collector is competent even after the money had been paid out and the applicants had not appeared before the Collector?
18. Only question No, 1 referred to the Full Bench is relevant in the case before me. Mohammad Munir, C. J. who wrote the Full Bench judgment discussing AIR 1943 Mad. 327 wrote on page 383 of the report that: "If the learned Judge intended to lay down the unqualified rule that once the Collector had made a reference, the Court to which the reference is made, has no jurisdiction to inquire into the competency of that reference, I should be extremely reluctant to accept that statement of the law.
19. Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction, and where the jurisdiction of such tribunal is dependent upon the existence of certain facts or circumstances, it is its obvious duty to see that those facts and circumstances exist to invest it with jurisdiction. And where a tribunal derives its jurisdiction from the statute that creates it, and that statute also defines the conditions under which that tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As was remarked by the Privy Council in `Nusserwanjee Pestonjee v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor 6 M I A 134 at page 155. Wherever jurisdiction is given to a Court by an Act of Parliament, and such jurisdiction is only given upon certain specified terms contained in that Act, it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction, for, if they be not complied with, the jurisdiction does not arise. Therefore the Court functioning under the Land Acquisition Act being a tribunal of special jurisdiction, it is its duty to see that the reference under that Act is made to it by an authority competent to make the reference and that the reference relates to a matter which can be referred to it under that Act. I agree with the observatiolis of Beaumont, C. J., with which Rajodhyaksba, J., agree in Mahadeo Krishna Parkar v. Mamledar of Alibagh AIR 1944 Born. 200, that since the Collector has power to make a reference on certain specified conditions the Court is bound to satisfy itself that the reference made to it by the Collector complies with those conditions, so as to give the Court jurisdiction to hear the reference, because if the reference does not comply with the terms of the Act, then the Court cannot entertain it."
20. It was laid down in AIR 1914 Lah. 394 by Rattigan and Scott-Smith, JJ. that: "It is not open to a Collector to waive the objection of limitation, and it is always open to the Court to hold that an application to a Collector for reference could not form the basis of reference under sections 18 and 19 inasmuch as it was barred by time."
21. This view was followed in AIR 1927 Lah. 858.
22. The trend of the authorities that laid down that limitation is within the province of the Collector and that it is not open to the Court to go into the question of the limitation where the Collector has inadvertently or deliberately passed on a reference application which made beyond prescribed time, is that the Collector is an agent of the Government and that it is not open to him or to the Secretary of the State to plead the bar of limitation in the reference Court where the Collector had made the reference even though the application made by the owner is belated and that the Collector is not a judicial officer and that the reference Court cannot sit in appeal over the Collector or go behind the reference. On the other hand the authorities that laid down that it is open to the Reference Court to go into the question of limitation where the Collector has passed on to the Court an application which was made beyond the prescribed limitation argued that section 18 lays down certain conditions under which reference application can be made to the Court and that it is open to the Court to see that those conditions are fulfilled; among which is also the condition of limitation prescribe by section, 18 subsection (2) of the Land Acquisition Act. I do not agree with the view that the Collector acting under section 18, Land Acquisition Act is an agent of the Government It was laid down in PLD 1964 Azad J & K 21 to which I was also a party, on page 31 of the report that: "The Collector while determining compensation or performing the other acts prescribed under the Acquisition of Land Act is not there as the agent of the Government but as a statutory authority."
23. It was also held in AIR 1955 Mad. 23 and AIR 1924 Mad. 442 that in making reference to the Court, the Collector does not merely act as an agent of the Government. He is just like any other statutory authority functioning within the powers conferred on him by the legislative enactment. AIR 1924 Mad. 442, which is a Full Bench authority, was followed in AIR 1955 Mad.
23. It was laid down in this Full Bench Madras Authority that: "When Collector acts under part III, of which section 18 forms part, he is acting in a different capacity because he has there to decide certain things."
24. Wazir Hasan, C. J. and Kisch, J. went so far as to lay down in AIR. 1932 Oudh 180 that: "The Land Acquisition Officer has no jurisdiction to refuse to make the reference even if in his opinion the application is not in time under clause (a) or clause (b) or subsection (2), section 18. He should express that opinion and refer the matter to the Court for determination. The section nowhere provides that if the application contravenes clause (a) or clause (b) the Land Acquisition Officer shall reject the application. These clauses are placed in the section by way of proviso to the substantive enactment contained in subsection (1), section 18 of the Act and relate to the form of the application and do not have the effect of taking away the right given by substantive enactment to an interested person who has not accepted the award of requiring that the matter be referred for the determination of the Court."
25. They further laid down in this authority that: "If the order of the Land Acquisition Officer is an order of a judicial character in that event the order must be construed as an order of a Court and subject to the revisional jurisdiction of the High Court, and an order refusing to make a reference to the Court of the District Judge, under section 18 is a judicial order whatever may be the ground of the order."
26. Guha and R. C. Mitter, JJ. laid down in AIR 1937 Cal. 680 that: "Though the proceedings before the Collector are not strictly judicial proceedings, the Court of the Special Judge on a reference made under section 18, Land Acquisition Act, is in effect (though not strictly in law) the Appellate Court, and the claimant who has carried the matter on reference before it must show, the burden is on him, that the Collector is wrong."
27. It was argued before the Division Bench in AIR 1914 Lah. 394 that the question of limitation was 'waived' by the Collector when he did not himself reject the application under section 18, but referred them to the Court for determination. The learned Judges wrote that : "It is contended that the Collector is the agent of the Secretary of State and that his omission to reject the applications as time-barred is binding on the Government. This contention was raised and overruled in a case reported as 'In the matter of the Land Acquisition Act 30 Bom. 275, and the ruling of Chandavarkar, J. has been recently followed upon this point by a Division Bench of this Court in Civil Appeal No, 276 of 1913. In our opinion it was not open to the Collector to 'waive' an objection of the kind in question, inasmuch as it is expressly enacted by statute that the application must be within the period specified. In the present case there is nothing to show that the Collector noticed that the applications before him were time-barred, and the inference is that he overlooked the point altogether. Be that as it may, we are quite clear that it was open to the Court to hold, as it did, that the applications to the Collector could not form the basis of a reference under sections 18 and 19 inasmuch as they were barred by time."
28. My view is and I hold that before a Collector can make reference and the Court can entertain it, the conditions prescribed by section 18, Land Acquisition Act must be complied with and these conditions are: (1)a written application to the Collector; (2)by a person interested who has not accepted the award; (3)stating the grounds of objections as to the measurement of land, or as to the person to whom it is payable or as to the apportionment of compensation money amongst the persons interested; and (4)within the period of time prescribed by section 18, subsection (2).
29. These formalities are matters of substance and their compliance is an essential condition to the exercise of the powers of reference under this section. In Ezra v. Secretary of State for India the Privy Council has decided that : "The Collector, exercising functions under the Land Acquisition Act down to the point when he gives what is called his award, is acting only in an advisory capacity and is not exercising any judicial function at all; but in these later cases (when he is referring the case to the reference Court); he is acting in a different capacity, because he has there to decide certain things: he has to send the case to the District Court if certain provisions in that section have been complied with, one of which is the question of time; that is to say, he has to decide whether the application is barred or not; and in doing so, in my judgment, he acts judicially."
30. 'AIR 1946 Mad. 184 lays down that: "In a reference made by the Collector under section 18, Land Acquisition Act, the Court has got power to go into the question of limita lion, all the more so where the Collector has himself included the question of limitation as part of the reference in his letter accompanying the reference and has not decided the question himself."
31. It was laid down further in this ruling that: "A Land Acquisition Officer purporting to act under Part III of the Act acts as a judicial officer and not1 merely as an agent of the Government."
32. AIR 1943 Mad. 327 which has been relied on in PLD 1960 Kan 826 was discussed in this authority on page 186. Koman, J. who wrote the Division Bench judgment, writes on page 186, para. 1 of the report that: "In 1943 Mad. 327 Kuppuswa mi Aiyar, J. in considering the question whether a Court when dealing with a belated application referred to it under section 18 of the Act by the Collector can go into the question of limitation, held the view that the Court could not go into that question. The learned Judge refers to 47 Mad. 357=1924 Mad. 442 and then observes as follows:-- `From these observations it is clear that it is the duty of the Collector before he makes the reference to decide on the materials before him whether he should make the reference or not, and if he decides to make and does make a reference, it is not open to the Land Acquisition Court to go behind it. If it is not open to the High Court or any other authority to interfere when the Land Acquisition Officer refuses to make a reference, his decision must be equally final when he decides to make and does make a reference.' "
33. The cases in 52 All. 96--AIR 1029 All. 769 and 1 M L J 66=1943 Mad. 327 are not quit: on all fours with the facts of the present case. In 52 All. 96 the Collector who made the reference did not leave open the question of limitation for decision by the Court. In 1943 I M L J 66, the learned Judge states that the question of limitation was raised by a separate letter dated 7th December after making reference by order dated 24th November 1937. It was possible, therefore, that the learned Judge did not consider the letter to form part of the letter made earlier. In I L R 1944 Bom 90=AIR 1944 Born.
34. 200, a Bench of the Bombay High Court held that: "The Court is not debarred from satisfying itself that the reference, which it is called upon to hear (a reference made to it under section 18, Land Acquisition Act), is a valid reference, and could, therefore, go into the question whether the reference is barred by limitation. We agree with the opinion expressed by Beaumont, C. J. who delivered the judgment in that case. The reasoning adopted by the learned Judges in that case is as follows: The basis of the appellant's argument is that the Collector acting under section 18 is not a Court, or at any rate not a Court subordinate to the District Court or to this Court, and that the Court cannot interfere with his decision either in appeal or in revision. That, no doubt, is true, but that is not really the position. The Collector has power to make a reference on certain specified conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award, the second condition is as to the nature of the objections which may be taken, and the third condition is to the time within which the application shall be made. It seems to me that the Court is bound to satisfy (itself) that the reference made by the Collector complies with the specified conditions, so as to give the Court jurisdiction to the reference. It is not a question of the Court sitting in appeal or revision on the decision of the Collector; it is a. question of the Court satisfying itself that the reference made under the Act is one which it is required to hear. If the reference does not comply with the terms of the Act, then the Court cannot entertain it. I have myself some difficulty in seeing on what principle the Court is to be debarred from satisfying itself that the reference, which it is called to hear, is a valid reference. I am in entire agreement with the view expressed by Chandavarkar, J. that it is the duty of the Court to see that the statutory conditions have been complied with. In my opinion, therefore, the learned Assistant Judge was right in dismissing the reference on the ground that it was out of time.'
35. We would like to add that under section 21 it is competent for a Court to consider the interests of persons affected by the objection, and if such interests are likely to be affected adversely or otherwise by limitation, it follows that the Court has necessarily to take that into account in considering the interests of persons when the decision of the question of limitation necessarily affects the question of the correct amount of compensation. We may add that when a question of limitation arises in an objection to the amount of compensation it is eminently desirable that the Collector who cannot be completely disinterested in such a case should refer the question of limitation to the Court. We are, therefore, of opinion that the Court has power, when a reference is made under section 18,.Land Acquisition Act, to go into the question of limitation, all the more so in a case like the present, where the Collector himself has included the question of limitation as part of the reference in his letter accompanying the reference and has not decided the question himself. We agree with the learned subordinate Judge that the application in the present case was barred by limitation and that the reference was rightly rejected on that account."
36. As a result of the above discussion and agreeing with the view expressed in AIR 1946 Mad. 184 I hold that the Collector acting under Part III of the Land Acquisition Act, in which section 18 is included, acts as a statutory authority and that he is not acting as an agent of the Government and, therefore, he is not competent to waive the objection of limitation and if the Collector refers a reference application made by an owner beyond the prescribed time, the reference Court is competent to go into the question of limitation. It is competent for the reference Court to see that the four conditions enunciated by me above are there in which is also included the condition of the limitation so as to clothe himself with the jurisdiction to hear and decide the reference application.
37. The reference Court can go behind the reference (though not beyond the reference) to see that the four conditions existed.
38. The longest period of limitation prescribed for a reference application under section 18, subsection (2), clause (b) (ii) is six months from the date of the Collector's award. The Collector's award was given on 31-8-65 and the present reference application was made on 31-7-69, therefore, I have no hesitation in holding that the reference application is hopelessly time-barred.
39. Now I take up the plea of the applicant-respondent that he had signed the Wakalat Nama in favour of the counsel who filed the earlier reference application of his co-villagers and that the counsel inadvertently had left out his name. Perhaps the applicant is making out a case under section 5 of the Limitation Act for extension of the time of limitation prescribed for a reference application. This may be a sufficient cause, within the meaning of section 5, Limitation Act for not making the reference application within the prescribed time but section 5, Limitation Act does not apply to the Land Acquisition Act which is a Special Act and prescribes its own period of limitation for a reference application. Section 29 of the Limitation Act, subsection (2) provides that: "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law :-- (a)the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b)the remaining provisions of this Act shall not apply."
40. So it is clear from clause (b) of subsection (2) of section 29, Limitation Act that section 5 does not apply to the Land Acquisition Act which is a Special Act. The applicant-respondent is not entitled to an extension of time even if his allegation be correct that he had signed a Wakalat Nama filed with the earlier reference application but the fact remains that his name was not included in the list of applicants who had applied for a reference and it shall be said that no reference application was made earlier on his behalf. The legal position is that where two persons are dissatisfied with the award as to the amount of the compensation allowed under an award, and one of them makes a reference application and the other does not make a reference application and the reference Court enhances the rate of compensation on the application of the party making the reference application, the benefit of the enhanced rate shall go only to the party making the reference application and shall not be allowed to the party that does not make the reference application.
41. Mohammad Sha applicant-respondent was not a party to the earlier reference application. His present reference application is time-barred. He cannot get the benefit of the enhanced rates allowed in the earlier reference application to which he was not party. I, therefore, accept the appeal and set aside the judgment and decree of the learned District Judge dated 27-6-70. A difficult law question was involved, therefore, I would leave the parties to bear their own costs.
42. M. YUSUF SARAF, J.--I agree. 32 Cal. 605 (P C)