GHAZIABAD DEVELOPMENT AUTHORITY Vs. UMESH CHAND

JUDGEMENT

(1.) SINCE common questions of law are involved in these writ petitions, and the facts in the petitions being identical they are amenable to common disposal by a composite judgment and order. Civil Misc. Writ Petition No. 7299 of 2002 shall be the leading petition and the decision in this petition will branch out to have its consequential effects on all the petitions aforestated. These petitions under Art. 226 of the Constitution instituted by the Ghaziabad Development Authority Ghaziabad seek issuance of a writ in the nature of certiorariquashing the order dated 6 -1 -2002 (Annexure 1 to the petition) passed by Special Land Acquisition Officer Ghaziabad/Addl. District Magistrate (Land Acquisition) (Irrigation) Ghaziabad whereby the latter has made reference to the Civil Court under Section 18 of the Land Acquisition Act 1894 on the applications moved by individual land -holders of village Makanpur, Tahsil Dadri, District Ghaziabad against the award dated 30th July, 1991 made by the Special Land Acquisition Officer (Irrigation) Ghaziabad in different cases relating to lands situated in village Makanpur, Pergana Loni, Tahsil, Dadri District Ghaziabad.

(2.) WE have heard Sri A.K. Misra, learned Counsel representing the petitioners, standing Counsel representing the State authorities, and perused the writ petition. Sri A.K. Misra has submitted that award in the case was given in the year 1991 and the reference made videimpugned orders (of different dates separately stated in all the petitions aforestated and the order dated 6 -1 2002 being the impugned order in writ petition No. 7299 of 2002) being barred by time, is without jurisdiction. The application for reference, it appears, was filed on 9 -9 -1991, but the order of reference was made on 16 -1 -2001 (in writ petition No. 7299 of 2002). The question that surfaces from consideration is whether any limit is prescribed for making reference under Section 18 of the Land Acquisition Act. Placing reliance on the decisions of the Supreme Court in Kerala State Electricity Boardv. T.P. Kunhallunimaand Addl. Spl. Land Acquisition Officerv. ThakoredasSri A.K. Misra has submitted that though Section 18 by itself prescribes limitation for making an application for reference and does not prescribe any time limit within which the Collector or for that purpose, the Special Land Acquisition Officer should make a reference, the provisions of Article 137 of the Limitation Act, 1963 could be attracted and, therefore, proceeds the submission, the reference made by the Special Land Acquisition Officer in the instant case, beyond the period of three years was obviously barred by time and hence the referring orders impugned herein are without jurisdiction. The Standing Counsel representing the State and the Special Land Acquisition Officer, Ghaziabad in opposition has submitted that proviso to Section 18 of the Land Acquisition Act, 1894 prescribes limitation for the purposes of moving an application and does not prescribe a limitation within which the Collector, or for that purpose the Special Land Acquisition Officer should pass an order making a reference under the Section. Article 137 of the Limitation Act, 1963, it has been submitted by the Standing Counsel, could be invoked for the purpose of making an application and not for the purpose of making an order of reference under Section 18 of the Land Acquisition Act, 1894. The learned Standing Counsel also submits that the decision in Addl. Special Land Acquisition Officer Bangalore(supra) and the one in Kerala State Electricity Board(supra) relied upon by Sri A.K. Misra were rendered while interpreting the provisions of Section 18 (3) (b) of the Karnataka Act 17 of 1961 and Section 16 (3) of the Telegraphic Act, 1885 respectively and are not intended for application to the constructions of Section 18 of the Land Acquisition Act, 1894 as is applicable to the State of U.P. In the rejoinder, it was submitted by Sri A.K. Misra that the plea sought to be raised herein could be raised by the petitioner even before the Court.

(3.) IN Mohd. Hasnuddin(supra), it has been held that even if the reference is wrongly made by the Collector, the Court will still have to determine its validity for the very jurisdiction of the Court to hear a reference, depends on a proper reference being made under Section 189 and it reference is not proper, the Court will have no jurisdiction to hear the reference. We, therefore, feel pursuaded to the view that in case any objection regarding competence or maintainability of reference is preferred on behalf of the petitioners before the Court hearing the reference, the Court will decide such objection as a preliminary issue. It goes without saying that in case the Court converges to the conclusion that reference should have been made by the Special Land Acquisition Officer within the period of three years prescribed by Art. 137 of the Indian Limitation Act, 1963 it would decline to answer the reference. In case, it is held by the Civil Court that Article 137 prescribes limitation for making application for which no limitation is prescribed and is not intended to lay down a limitation for making an order of reference, it would proceed to answer the reference in accordance with law.