A landowner never told of the award cannot be shut out by the clock: Madhya Pradesh High Court reads down Section 64 and revives a batch of references
Justice Vinay Saraf holds that the cross-reference to Section 21 must be read as Section 37(2), that a referred case must be decided on merits, and that a civil revision lies against its rejection.
A landowner dissatisfied with compensation can ask the Collector to refer the matter to a court, but only within a limitation period. The 2013 land acquisition Act ties that period to a notice the Collector is supposed to give — and points, in doing so, at the wrong section. A batch of landowners in Madhya Pradesh had their references thrown out as time barred on the strength of that drafting. Justice Vinay Saraf has read the provision down, held that their references must be heard on merits, and sent every one of them back.
Three questions
The civil revisions were heard together and raised three issues: when limitation for a reference under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 begins; what a Reference Court must do once the Collector has referred a case to it; and whether a civil revision under Section 115 of the Code of Civil Procedure lies against the rejection of such a reference.
The cross-reference that does not fit
Section 64(2)(b) fixes the outer limit for a reference by reference to another provision — and names Section 21. The difficulty is that Section 21 is not the provision under which an award is notified to the person whose land has been taken. Section 37(2) is: it requires the Collector to give immediate notice of the award to those interested who were not present personally or by representative when it was made.
Read literally, Section 64(2)(b) therefore starts a clock by reference to a step that has nothing to do with whether the landowner was told anything. A person absent when the award was passed, and never served with notice of it, can find the period expired before he learns the award exists.
The Court's answer was to read the words down. The expression “Section 21” in Section 64(2)(b), it held, should be read as “Section 37(2)”. The consequence follows directly: where the land loser or his representative was not present when the award was passed and the Collector served no intimation or notice under Section 37(2), limitation for filing the reference starts from the date of knowledge of the award, and the reference may be filed within six months of that date.
Reading down a cross-reference is a strong remedy, and it is justified here by the alternative. A limitation provision that can expire before the right it governs becomes known is not a limitation provision at all; it is a bar. The Court chose the reading that makes the notice obligation in Section 37(2) do the work the scheme plainly intends it to do.
It is worth being clear about what a reference is, because the stakes are easy to understand once the machinery is set out. When land is compulsorily acquired, the Collector makes an award fixing compensation. That figure is an administrative determination by an officer of the acquiring State, and the owner has no say in it beyond objecting. The reference is the only route by which a court rather than the executive values the land: the owner applies, the Collector refers, and a Reference Court decides what the compensation should have been. Shut the reference out on limitation and the Collector's figure becomes final by default.
That is why the notice requirement carries the weight it does. Section 37(2) exists precisely because an award may be passed in the owner's absence, and the obligation to give immediate notice is the mechanism by which the law tells him his right to a reference has started running. A reading that lets the period expire whether or not that notice was given detaches the clock from the event it was meant to measure.
Once referred, a reference must be decided
The second question concerns the division of labour between the Collector and the Reference Court, and the answer is clean.
The Collector is authorised to take a decision on receiving a reference petition, and if he considers it time barred he may refuse to refer it. That is where the question of limitation belongs. Referring a petition is an executive act; and once the Collector has referred it, the Reference Court must decide it on merits. It cannot be dismissed on the ground of maintainability, and it cannot even be dismissed in default — because until the court passes an award under Sections 69 and 70 the proceedings are not terminated, the passing of an award being a sine qua non.
The Court stated the conclusion in terms covering both statutes: where a reference petition is referred by the Collector under Section 18 of the 1894 Act or Section 64 of the 2013 Act, the civil court or Reference Court is duty bound to decide it on merits and cannot reject it at any preliminary stage.
That closes a gap landowners fall into routinely. A Collector who thinks a petition is late may say so and refuse; a Collector who refers it has made his decision, and the court receiving it is not a second filter.
The route to challenge it, and a precedent set aside
The third question produced the most technically interesting part of the judgment.
One respondent argued that a civil revision under Section 115 CPC does not lie against the rejection of a reference case; that such a rejection amounts to an award under Section 70 of the 2013 Act; and that the only remedy is an appeal under Section 74. He relied on a coordinate Bench decision in Jagdish and on three Bombay High Court judgments.
The petitioners relied on another coordinate Bench decision, Somli, which had held a civil revision maintainable and had been followed by other coordinate Benches.
The Court's handling of the conflict is a textbook application of precedent discipline. Where judgments of the same High Court are available, it held, there is no occasion to look to the Bombay High Court, because coordinate Bench decisions bind and the doctrine of stare decisis does not permit ignoring them. As between Somli and Jagdish, the Bench in Jagdish had not considered or referred to the earlier judgment of a Bench of equal strength in Somli — so the later, contrary judgment is per incuriam. The Court invoked a Special Bench decision of the same High Court holding that where decisions of Benches of equal strength conflict, the earlier decision binds. Somli therefore holds the field.
Accordingly a civil revision under Section 115 is maintainable against an order of a Reference Court rejecting a reference petition under Order VII Rule 11 of the Code.
Order
The Court recorded its conclusions on all three questions and then applied them. The impugned orders of the Reference Court rejecting the reference petitions as time barred were held unsustainable and set aside, and the matters were remanded to the Reference Court to decide the reference cases on merits in accordance with law, after affording the parties an opportunity of hearing. All the civil revision petitions were allowed in those terms with no order as to costs, and a copy of the order was directed to be kept on the record of each connected petition.
For landowners the practical effect is considerable and not confined to this batch. Reference petitions are dismissed as time barred as a matter of routine, and the dismissal usually ends the matter, because the compensation fixed by the Collector then stands unchallenged. This judgment supplies two answers to that: the clock does not run against someone who was never told, and a reference the Collector has already sent to court cannot be thrown out without a decision on what the land was worth.
There is also a quieter lesson about where arguments belong. The respondent's maintainability objection was that the rejection of a reference is an award under Section 70, appealable under Section 74. The Court did not need to resolve that characterisation in the abstract, because its answer on the second question removes the premise: a Reference Court that rejects a referred petition at a preliminary stage has not made an award at all, since passing an award on merits is the only way those proceedings terminate. An order that is not an award is not appealable as one, and the supervisory route under Section 115 is what remains.
The point about per incuriam deserves a note of its own, because it is where the judgment does something more than apply the Act. A single judge cannot ordinarily choose between conflicting coordinate Bench decisions. What this judgment does instead is apply a rule about which conflict counts: a later decision that never noticed the earlier one on the same point is not a competing view but an oversight, and the earlier judgment survives. That reasoning will be cited well beyond land acquisition.