STATE OF UTTAR PRADESH Vs. SRI ABDUL KARIM

JUDGEMENT

(1.) The following question has been referred to a Full Bench by two of us :

(2.) It was argued before us by Srimati Eamo Devi that really the application made by the respondent under Section 18 (1) was not barred by time because "the date of the award" within the meaning of the proviso (b) to Section 18 means the date when the award was either communicated to the respondent or was known by him actually or constructively, as held by the Supreme Court in Harish Chandra v. Dy. L. A. Officer, AIR 1961 SC 1500 and the award had become known to him within six months of the date of his application. Only a specific question has been referred to a Full Bench by the Bench seized with the first appeal and it is not open to us to go into the question whether the application was really barred by time or not. Our jurisdiction is solely to answer whether a District Judge hearing a reference has jurisdiction to decide that the reference was illegally made to him by the Collector because the application made under Section 18 (1) was barred by time, and not to answer whether the application was really barred by time or not. It will be for the learned Judges, who are seized with the first appeal to decide whether the respondent's application was really barred by time or not.

(3.) I have reproduced all the relevant provisions in the Act. How the District Judge is required to proceed on receipt of a reference, what he has to determine and what decree he has to pass and what matters he has to consider and what matters he is forbidden to consider are all exhaustively laid down in the provisions referred to above. Section 18 is not sensibly drafted; it contains a provision for an application for reference being made to the Collector and a provision about the time within which it should be made, but contains ho provision whatsoever requiring the Collector to make a reference. Not only is there no provision laying down in what circumstances he must or may or must not or may not make a reference, but also there is no provision containing any reference to his making a reference. It refers to what an owner of land aggrieved by an award may do, and the next section lays down what the Collector should do in making a reference; there is no provision which expressly confers any jurisdiction upon him to make a reference and such a jurisdiction is left to be inferred from Sections 18 and 19. When there is no provision laying down that a Collector can make a reference only when certain circumstances exist or cannot make a reference when certain circumstances exist it cannot be said that his making a reference is illegal on account of the existence or absence of certain circumstances. An owner is certainly required to make an application for a reference within a certain time, but this may only mean that if he makes an application within the time it must be considered on its merits by the Collector and that if it is made after the expiry of the time it may be ignored by the Collector regardless of its me rits, and it may not, in the absence of any express statutory provision about the Collector's jurisdiction to make a reference, mean that he cannot make a reference if an application is made after the expiry of the time. The view that if an application is made within the time the Collector must make a reference and that if it is made after the expiry of the time it is left to his discretion and he may or may not make a reference does not militate against any provisions of the Act. The Legislature could have intended that if an owner claims a reference as a matter of right he must claim it within certain time; otherwise the matter would be at the discretion of the Collector. What is imposed as a limitation upon an owner's right need not be treated as a corresponding limitation on the Collector's jurisdiction when the latter is not made wholly dependent upon the owner's right. Whether an application is made within the prescribed time is one question and whether a reference can legally be made on an application made after the expiry of the prescribed time is another question and no provision connects the latter with the former. One cannot hold a reference illegal simply on the ground that the application on which it was made was presented after the expiry of the prescribed time. Legality is a matter of law and there is no express pro- vision of law forbidding a reference on a time- barred application.