G J DESAI Vs. ABDUL MAZID KADRI

JUDGEMENT

(1.) THIS is an appeal from an order of Bhagwati J. direciing that a writ of manda-mus be issued under Section 45, Specific Relief Act againat the Special Land Acquisition Officer, City of Bombay and the Bombay Suburban District

(2.) THE Special Land Acquisition Officer made an award under the Land Acquisition Act. An appln. was made to him by the petnrs. to make a reference to the H. C. under Section 18 of the Act. The officer took the view that the petnr. 's appln. was barred by limitation and refused to make a reference. Thereupon the petnrs. came to this Ct. with a petn. under Section 45 asking the Ct. to order the Officer to make a reference under Section 18. The learned Judge took the view that it was not open to the officer to consider whether the appln. was barred by limitation or not, and that once an appln. was made to him under Section 18, it was incumbent upon him to make a reference and the question whether the appln. was barred or not was a question which had to be determined by the civil Ct. With respect to the learned Judge the opinion he formed on the construction of Section 18 is not borne out either by the plain language of the section itself or by the decisions of this Ct. Now turning to the section itself it is clear, and the position is not disputed since the P. C. laid down in Ezra v. Secretary of State, 82 I A. 93 : (32 Cal. 605 P. C.), that the functions of the Collector in making an award are not judicial but administrative, and all that he does is to make an offer to the claimants with regard to the valuation of the property to be acquired. It is open to the claimants either to accept the order or to call upon the Collector to make a reference which would result in a judicial determination by a Ct. Now the power of the Collector to make a reference is circumscribed by the conditions laid down in Section 18 and one important condition ia the condition to be found in the proviso. Thab proviso lays down the period within which the appln. has got to be made. Therefore if the appln. is made which is not within time the Collector would not have the power to make the reference. In order to determine the limits of his own power it is clear that the Collector would have to decide whether the appln. presented by the claimants is or is not within time, and satisfies the conditions laid down by the proviso. Assuming that the Collector is wrong in the view that he takes as to the main-tainability of the petn. and refuses to make a refer-ence, it would always be open to the claimants to come to Ct. and get the Ct. to compel the Collector to make a reference if they satisfy the Ct. that their appln. was within time. On an appln. under Section 45 what the Ct. will have to consider is whether the Collector failed to discharge his statutory duty, and one of his statutory duties is to make a reference if the appln. is within time. Therefore in order to decide the petn. under Section 45 the Ct. would have to consider the question of limitation and take a contrary view to the view taken by the Collector if the Collector was wrong in his decision. Equally so if a reference was made by the Collector which was not a proper reference under Section 18, it would be for the Ct. to determine the validity of the reference because the very jurisdiction of the Ct. to hear a reference depends upon a proper reference being made under Section 18, and if the reference is not proper, there is no jurisdiation in the Ct. to hear it. This seems to me to be the clear interpretation of the plain language of the section used by the Legislature.

(3.) NOW turning to the authorities of this Ct. we have first a decision of Chandavarkar J. in In re Land Acquisition Act, 7 Bom. L. R. 697 : (80 Bom. 275 ). In that case a reference was made by the Collector of Bombay and the validity of the reference was challenged on behalf of the Govt. on the ground that the appln. made to the Collector was out of time. The learned Judge held that the appln. was out of time and therefore, there was no substantial compliance by the claimants with the conditions for a reference prescribed by Section 18 of the Act and the Collector had no power to make a reference and it was ultra vires. Therefore this decision clearly lays down that it is for the Ct. to consider the validity of the reference and as to whether the appln. made by the claimant under Section 18 is or is not within time.