The Judgment of the Court was delivered by

Sankaran, J.:— Petitioner is the claimant in land Acquisition Case No. 74 of 1123 on the file of the District Collector, Trichur. The petition is for the issue of a writ of mandamus directing respondent No. 2, the District Collector, Trichur, to make a reference under Section 17 of the Cochin Land Acquisition Act to the District Court of Trichur. The petitioner's property 24½ cents in extent in S. No. 663/11. Talappilli Taluk, was acquired by the erstwhile Cochin Government under the Cochin Land Acquisition Act, Act II of 1070. On receipt of notice under S. 8 of the Act the petitioner filed a claim statement before the Diwan Peishkar on 29-5-1948 (16-10-1123). The Diwan Peishkar passed an award on 9-8-1948 (25-12-1123). At the time when the award was passed neither the petitioner nor his advocate was present. Notice of the award was issued to the petitioner only on 29-1-1949 (16-6-1124) and was received by him on 4-2-1949 (22-6-1124). On 17-2-1949 (6-7-1124) the petitioner made an application under S. 17 of the Act to the Djwan Peishkar claiming more amount as compensation and asking for a reference to the District Court.

2. Although the application bears the date 8-2-1949 (26-6-1124) it was actually presented before the Diwan Peishkar only on 17-2-1049 (6-7-1124) This application was rejected by the Diwan Peishkar, on 12-12-1949 (27-4-1125) on the ground that it was barred by limitation. It is alleged that the Diwan Peishkar (now collector) has gone wrong in holding that the application was barred by limitation and in dismissing it on that ground. According to the petitioner, the application for reference was made within time and in any case the Collector was bound to forward the application to the District Court leaving it to that court to decide whether the application was barred by limitation or not. The petitioner, therefore, prays that a writ may be issued compelling the Collector to make the reference to the District Court. The petition was filed under Article 226 of the Constitution and Section 18(2) of the Travancore Cochin High Court Ace, Act I of 1125. A preliminary objection was taken on behalf of the State to the effect that Article 226 of the Constitution would not apply to the case since the order of the Collector refusing to make the reference was passed before the Constitution came into force. It is true that Article 226 of the Constitution will not apply to the case. But apart from that Article this Court as a Court of Record has got jurisdiction to issue prerogative writs (vide — ‘Subramonia Iyer v. Chief Minister’, 1949 Ker LT 77 (FB)(A). It is, therefore, necessary to go into the merits of the petition.

3. The two questions that arise for consideration in the petition are (1) whether the Collector has gone wrong in holding that the application for reference was barred by limitation and (2) whether the Collector had no jurisdiction to reject the application on the ground that it was barred by limitation or whether he was bound to forward the application to the District Court leaving it to that court to decide the question whether the application was barred by limitation or not. The relevant provisions of the Cochin Land Acquisition Act, Act II of 1070, are those contained in Ss. 10, 11 and 17 corresponding to Ss. 11, 12 and 18 respectively of the Indian Act. Section 10 reads thus:

“10. On the day so fixed, or on any other day to which the enquiry has been adjourned, the Peishkar shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 8 to the measurements made under section 7 and into the value of the land at the date of the publication of the notification under section 3, sub-section (1) and into the respective interests of the persons claiming the compensation and shall make an award under his hand of

(i) the true area of the land;

(ii) the compensation which in his opinion, should be allowed for the land, provided that the amount awarded shall not exceed the amount claimed; and

(iii) the apportionment of the said compensation among all the persons known or believed to or interested in the land, of whom or of whose claims, he has information, whether or not they have respectively appeared before him.”

4. Section 11 provides:

“(1) Such award shall be filed in the Peishkar's Office and shall, except, as hereinafter provided, be final and conclusive evidence as between the Peishkar and the persons interested, whether they have respectively appeared before the Peishkar or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

(2) The Peishkar shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.”

5. Section 17 is to the following effect:

“(1) Any person interested who has not accepted the award may, by written application to the Peishkar, require that the matter be referred by the Peishkar for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. The Diwan likewise may, if he has not accepted the award, require that the matter be referred to the Court by the Peishkar.

(2) The application shall state the grounds on which objection to the award is taken.

Provided that every such application shall be made,

“(a) if the person making it was present or represented before the Peishkar at the time when he made his award, within six weeks from the date of the Peishkar's award.

(b) In other cases, within six weeks of the receipt of the notice from the Peishkar under section 11, sub-section (2) or within six months from the date of the Peishkar's award, whichever period shall first expire.”

6. So far as the first question is concerned, the arguments advanced on behalf of the petitioner are that in a case coming under S. 17, sub-s. (2) proviso (b) the date of award for purposes of computing the period of limitation for an application for reference to the District Court should be taken to be the date on which notice of the award is served on the party under S. 11, sub-s. (2) and that in any case the date of award for purposes of proviso (b) of S. 17(2) should be the date on which the award is filed under S. 11(1) and not the date on which the award is signed by the Diwan Peishkar. So far as the first argument is concerned learned counsel for the petitioner relied on the rulings in — ‘Macdonald v. Secy. of State’, 4 Ind Cas 914 (Lah)(B); — ‘Hari Das v. Municipal Board, Lucknow’, 22 Ind Cas 652 (Oudh)(C); — ‘Sivathanoo v. Diwan of Travancore’, 17 Trav LR (App) 58 (D) and — ‘Sankara Pillai v. Diwan of Travancore’, 47 Trav LR 1 (E).

7. Reference was also made to certain decisions which relate to the interpretation of similar provision in other enactments. They are — ‘Sirkar v. Skaria Kathanar’, 43 Trav LR 310 (F) which relates to the Land Conservancy Act, — ‘Swaminathan v. Lakshmanan Chettiar’, AIR 1930 Mad 490 (G) which relates to the Registration Act and — ‘Muthiah Chettiar v. Commr. of Income-tax’, AIR 1951 Mad 204 (H) which relates to the Income-tax Act.

8. “4 Ind Cas 914 (Lah)(B)’ is a decision of the Punjab Chief Court. Rattigan and Shah Din JJ. observed thus in that case:

“Mr. Pestonji contends that an award is ‘made’ for the purposes of Ss. 11, 12 and 18 of the Act as soon as it is written out and signed by the ‘Collector’. In other words, an award is ‘made’ even though it is not announced to the person or persons interested. Possibly the language of sections 11 and 12 lend some colour to this contention, but we cannot accept it.

We consider that it was the clear intention of the Legislature that the award should be announced to such of the persons Interested as were present when. It was “made” and that due notice of it should be given to such of them as were not then present. In other words, that it is an essential part of the ‘making’ of the award that it should be communicated to the interested parties. An award under the Act is in the nature of a tender and obviously no tender can be ‘made’ unless it is brought to the knowledge of the person to whom it is made. This proposition seems to us to be self-evident, but if support for it is needed, we would refer to the limitation provision of section 18 of the Act.

To hold that an award is ‘made’ as soon as it is signed by the Collector would in many cases result in grave hardship, and we, therefore, feel fully justified in holding that an award is not made until it is announced or communicated to the person interested. We cannot believe that the Legislature intended that an award should be deemed to be ‘made’ when the Collector signs the document and without saying a word about it, locks it up in his office. To take an extreme case the Collector signs an award, and without announcing it files it with various other documents in his office. He is then transferred and it is only some seven months afterwards that his successor comes across the ‘award’. Under section 18 of the Act the persons interested would be barred from applying for a reference to the Civil Court as more than six months had elapsed from the ‘making’ of the award.

Looking, then, at the true character of the award in these cases, that is to say, that it is really a ‘tender’ on behalf of Government, and having regard to the inconveniences and hardships that would, or might otherwise arise, we hold that an award is not made until it is announced to the persons interested.”

9. This case was followed by the Oudh Judicial Commissioner's Court in — ‘22 Ind Cas 652 (Oudh)(C)’. It was held in that case that an award written and signed by the Collector without being made in the presence of, or communicated to, the applicant is ‘qua’ the applicant no award at all and that the period of limitation for filing are objection to the award could be computed only from the date when the award is made within the applicant's knowledge. In — ‘17 Trav LR (App) 58 (D)’ the decision of the Diwan Peishkar was dated 14th Makaram 1071 but notice was given to the party only on 3rd Meenom 1076. It was held that the period of limitation should be computed from the date of notice. No reference was, however, made in the judgment to the provisions of the Land Acquisition Act and there was no discussion, of the question with reference to the provisions of the Act. In — ‘47 Trav LR 1 (E)’ Venkitarama Iyer, observed that

“knowledge of the award with respect to which, the right of reference is created is an essential requirement for the applicability of the period of limitation prescribed under S. 18”

10. Of the Land Acquisition Act (Travancore). ‘17 Trav LR (App) 58 (D)’ was cited with approval. But the actual decision in the case was that the date of award for purposes of Section 18(2) proviso (b) of the Travancore Land Acquisition Act corresponding to Section 17(2) proviso, (b) of the Cochin Act is the date on which the award is filed in the Division Peishkar's Office as required by Section 12, sub-Section (1) of the Travancore Act (Section 11(1) of the Cochin Act).

11. What was held in — ‘43 Trav LR 310 (F)’ was that the period of limitation for instituting a suit to set aside a decision under the Land Conservancy Act should be computed from the date on which the party gets knowledge of the same. The decision turned upon the interpretation of the expression “cause of action” in the proviso in Section 18 of the Land Conservancy Act, (Travancore) Act 4 of 1091. It was the same question that was decided in — ‘Neelakanta Iyer v. Diwan of Travancore’, 3 Trav LT 904 (I). What was held in — ‘AIR 1930 Mad 490 (G)’ was that the period of limitation for an appeal or a suit. In respect of an order by the Registrar refusing to register a document should be computed from the date of the communication of the order to the party. In — ‘AIR 1951 Mad 204 (H)’ it was held that the period of limitation for a revision from the order of the Income-tax Officer before the Commissioner for Income-tax under Section 33(a)(2) of the Income-tax Act should be calculated not from the date when the order was signed by the Income-tax Officer but from the date when it was communicated to the assessee or the date when it was pronounced or published.

12. On the basis of these decisions, it was argued for the petitioner that for purposes of computing the period of limitation under Section 17, sub-Section (2) proviso (b) of the Cochin Land Acquisition Act the date of award should be taken to be the date on which notice of the award is served on the party and not the date on which the award is signed by the Diwan Peishkar.

13. The alternative argument that the date of award should be the date on which the award is filed in the Diwan Peishkar's Office under S. 11(1) is based on the observation of Mukerji J. in — ‘Secy, of State v. Bhagwan Prasad’, AIR 1929 All 769 (J) which was followed by the Travancore High Court in — ‘47 Trav LR 1 (E)’. Mukher]i J. observed:

“Section 11 of the Act (Indian) requires the Collector to make an award under his hand. It is significant that it does not make any mention of the date of making the award. In other words, the section does not require the Collector to date the award. Section 12 requires that the award shall be filed in the office of the Collector and then provides that a notice would forthwith be issued to the persons interested. The notice is to issue only after the filing of the award. Then, the question is whether the starting point of limitation is the date of the making of the award or is the date of filing of the award. As already mentioned, Cl. (b), sub-s. (2), S. 18 is silent as to which would be the date of the Collector's award…….. The expression “date of the award” being indefinite I am of opinion that the respondent is right in contending that the Legislature meant the date of the filing of the award to be the date contemplated in Cl. (b), sub-s. (2), S. 18. This view finds support from the case of — ‘Kooverbai Sorabji Manekji… v. Assistant Collector, Surat…., Surat’, AIR 1920 Bom 265 (K).”

14. We do not think: that the wording of Section 17, sub-Section (2), proviso (b) of the Cochin Land Acquisition Act warrants either of the interpretations sought to be put upon it by the petitioner. What the proviso says is that in cases in which the party was not present or was not represented before the Diwan Peishkar at the time when the award was made the application for reference should be made within six weeks of the receipt of the notice from the Diwan Peishkar under S. 11, sub-s. (2) or within six months from the date of the Diwan Peishkar's award, whichever period shall expire first. The proviso contemplates two classes of cases, namely, cases in which notice of the award issued under S. 11, sub-s. (2) is received by the applicant and cases in which such notice is not received. In the first case, the period prescribed is six weeks from the date of the receipt of the notice and in the latter case the period prescribed is six months from the date of the award.

15. There is, however, an important proviso which, says that of the two periods it is the one that expires first that should be taken into account. This means, if the notice issued under S. 11, sub-s. (2) is received by the party more than six months from the date of the award and the application, is made after the expiry of that period it will be barred by reason of the proviso which prescribes a maximum period of six months from the date of the award. That the date of award mentioned in, proviso (b) was not meant by the legislature to be the date on which notice of the award is received by the party is clear from the wording of the proviso which prescribes two periods of limitation for an application for reference, one to be computed from the date of the receipt of the notice of the award and the other from the date of the, award itself. If the date of the award means the date of the receipt of the notice of the award there is no meaning in prescribing two periods of limitation, one to run from the date of receipt of the notice of the award and the other from the date of the award.

16. This question was discussed by Niamattulah J. in — ‘AIR 1929 All 769 (J)’ already referred to. The learned Judge observed thus:

“If the claimant is present before the Collector in person, or is represented by an authorised agent when the award is made, namely, when the amount of compensation is declared, to him, the law provides reasonable period of 6 weeks: Vide clause (a). If he is not so present the law provides a long period of six months from the “date of the award”, namely, the date on which a formal declaration is made by the Collector of the amount of compensation and the person to whom the same is payable. This period, however, is curtailed if the six weeks following a notice required by S. 12(2) expires before the expiry of the six months from the “date of the award”. Sections 9 and 11 of the Act make it incumbent on the Collector to fix a date for enquiry and the making of the award of which date due notice must be given to all persons interested in the proceedings. It follows that the formal declaration of the amount awarded is to be made on a date made known to the claimant who can, if he chooses, be present, to receive the award, and if he puts in appearance, the law gives him only six weeks, as already stated, but if he does not an indulgence is given to him in the matter of the limitation by giving the extended period of six months from the date the award is pronounced.

It is not too much to expect that the person interested should turn up within a reasonable time after the date fixed for the making of the award, if he does not choose to be present on the date itself. With utmost respect to my learned colleague, I am unable to agree with him that “the date of the award” is the date on which it is filed in accordance with the provisions of Section 12 of the Land Acquisition Act. A comparison of Ss. 11 and 12 will show that the date of making award is meant by the Act to be different from the date on which the award is to be filed. Section 18(2) proviso refers to the former. It was contended on behalf of the respondents that the date of the award is the date on which the amount of compensation awarded is communicated to the owner of the land. I am unable to accept this contention either. There is nothing in the Act which justifies this interpretation of the simple words “the date of the award”.

17. The same view was taken fay the Calcutta High Court in — ‘Nader Chand v. State of West Bengal’, AIR 1952 Cal 67 (L). Referring to the decisions in — ‘4 Ind Cas 914 (Lah)(B)’, Sinha J. observed:

“With great respect I do not think it is possible to say that an award is not made under S. 11 until notice has been given under S. 12(2). An award is made when the Collector draws up and signs the award. The function is not a judicial one and there is no necessity of announcing it. Next comes the filing and lastly a notice is served under S. 12(2) upon persons who are not present (personally or through a representative) at the time of the making of the award. The giving of notice is required by law and it must be given, but if not given it cannot make the award invalid. This is clear from a consideration of S. 18 of the Act. That section says that where a person is present “at the time” when the Collector made his award or where he got notice under S. 12(2) the time limit to object to the award and ask for a reference is six weeks, otherwise it is six months. If there can be no award if there is no notice then prescribing the outside limit of six months becomes meaningless.

In my opinion, the intention was to make the award binding in any event after the expiry of six months from the award. The hypothetical cases enunciated in — ‘Macdonald v. Secy. of State, (B)’, (ibid) rather overlook the significance of filing an award. If it is filed as of records parties have means of access to it. A party whose objection has been enquired into under S. 11 is not entitled to sit down and just wait for the notice to be given.”

18. The question was discussed by Chandavarker J. in ‘In the Matter of Land Acquisition Act, In re Govt. & Nanu Kothare’, 30 Bom 275 (M). The learned Judge said:

“So far as the period of limitation, provided for in Cl. (b) of the proviso to S. 18, goes, it is made to run from the date of the receipt of the notice from the Collector, in which case it is six weeks, or from the date of the Collector's award, in which case it is his months, which over period shall first expire. That means, that in any case the proceedings shall be final after six months from the date of the award. This evidently contemplates that a party interested should not sit quiet waiting for the Collector's notice or plead want of it, but should in any case himself be vigilant. The longer period of six months from the date of the award is given him as an alternative, where the Collector has not been himself prompt. The lateness of the notice cannot, therefore, affect the question of limitation and no prejudice can possibly arise to the claimant in respect thereof.

The clause in question prescribes one of two periods of limitation for a party who has not accepted the Collector's award, either six weeks from the date of the receipt of the Collector's notice, whether immediate or not, or six months from the date of the award whichever period shall first expire’.”

19. The same view was taken by the Cochin High Court in — ‘V.S Ranganathan Pillai v. Cochin Sarkar’, 30 Cochin 65 (N). In that case T.S Narayana Iyer J. refused to follow — ‘22 Ind Cas 652 (Oudh)(C)’ and preferred to accept the opinion of Niamatullah J. in — ‘AIR 1929 All 769 (J)’. The learned Judge observed:

“Lastly, on the question of limitation, the argument is two-fold; (a) the award becomes vaid only when the claimant has notice of the award and the period of six months is to be computed from the date when the claimant has knowledge of the passing of the award; and (b) the award becomes final only when it is filed under S. 11 of the Act, and it is the date of filing the award that furnishes the starting point of limitation. In support of the first contention, the learned advocate for the petitioner invited our attention to a decision of the Oudh Judicial Commissioner's Court in — ‘22 Ind Cas 652 (Oudh)(C)’. But we find ourselves unable to accept the view taken there in the face of the explicit language of the section which does not refer to knowledge on the part of the claimants as the starting point of limitation under the latter part of clause (b). Such a construction would involve reading into the section words which are not there.

The scheme of the Act is that the proceedings become final on the expiry of 6 months from the date of the award. This evidently contemplates that the party, interested should not sit quiet waiting for notice, or plead want of it, but should in any case be himself vigilant, if he is to have the benefit of the machinery provided by the Act. The longer period of six months is given as an alternative where the Land Acquisition Officer has not himself been prompt or diligent. As regards the second ground on which the plea of limitation is resisted, reference is made to the opinion of Mukherji J. in — ‘AIR 1929 All 769 (J)’, that the expression ‘date of the award’ being indefinite, the legislature meant the date of the filing of the award to be the date contemplated in clause (b) of sub-s. (2). But this interpretation has been expressly dissented from by his learned Colleague Niamatullah J. and we do not also see any support for it in the language of the section.

A comparison of Ss. 10 and 11 shows that the date of making an award is meant by the Act to be different from the date on which the award is to be filed. The proviso to S. 17(2) refers to the former and not the latter date.”

20. We have no hesitation in accepting the view taken by Niamatullah, J., in — ‘AIR 1929 All 769 (J)’ which was the view taken by the Bombay High Court in — ‘30 Bom 275 (M)’ and which was followed by the Cochin High Court in — ‘30 Cochin 65 (N)’ and by the Calcutta High Court in — ‘AIR 1952 Cal 67 (L)’.

21. So far as the second argument is concerned we saw that Niamatullah J. disagreed with Mukherji J. in his view that the date of award mentioned in proviso (b) to Section 17(2)(18(2) of the Indian Act) is the date on which the award is filed in the Collector's Office and not the date on which it is signed by the Collector. We saw that the Cochin High Court also disagreed with that view. It is, however, not necessary to discuss the question in this case in view of the fact that the award in this case has been filed on the date on which it was signed by the Diwan Peishkar. It is seen that the number of the award is 126/1123 dated 9-8-1948 which is the date on which it was signed by the Diwan Peishkar.

22. The next question for consideration is whether the Collector had no jurisdiction to reject the application for reference on the ground that it was filed out of time or whether he was bound to forward it to the District Court leaving it to that court to decide whether it was barred by limitation or not. In support of the contention that the Collector had no jurisdiction to reject the application learned counsel for the petitioner relied on the ruling in — ‘Ahmad Ali v. Secy. of State’, AIR 1932 Oudh 180 (O); — ‘Subramania Chettiar v. Collector of Coimbatore’, AIR 1946 Mad 184 (P) and the decision of this court in — ‘C.R.P Nos. 465 & 466 of 1125 (Tra-Co.)(Q):. In— “AIR 1932 Oudh 180 (O)’, Wazir Hassan S.C.J and Kisch J. observed:

“It appears to us that on a proper construction of Section 18 the final determination of the question as to whether the application is barred by time or not must be made by the court of the District Judge. The Land Acquisition Officer has no jurisdiction to refuse to mate the reference even if in his opinion the application is not in time under Cl. (a) or Cl. (b) of sub-s. (2), Section 18 of the Land Acquisition Act. He should express that opinion and refer the matter to the Court for determination. The section nowhere provides that if the application contravenes Cl. (a) or Cl. (b) the Land Acquisition Officer shall reject the application. These clauses are placed in the section by way of a proviso to the substantive enactment contained in sub-section (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 the 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.”

23. In — ‘AIR 1946 Mad 184 (P)’ Koman J. observed:

“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.”

24. In — ‘C.B.P Nos. 465 & 466 of 1125 (Trav-C)(Q)’ K.S Govinda Pillai, J. followed the decision in — ‘AIR 1932 Oudh 180 (O)’ and held that the Collector has no jurisdiction to refuse to make a reference to the District Court on the ground that the application for reference is barred by limitation.

25. We find ourselves unable to agree with this view. The right conferred on a party u/section 17 of the Land Acquisition Act (Cochin) to make an application for reference is subject to the condition mentioned in the section, namely, that the application should be made within a particular time. It follows from this that unless the condition is satisfied the Collector is not bound to make the reference. In — ‘AIR 1923 All 769 (J)’ Niamatullah J. observed that it was the function of the Collector to decide whether the reference should be made or not. The learned Judge said:

“It was the province of the Collector alone to decide for himself whether he should make the reference or refuse to do so. If he decides the question of limitation one way or the other the Act does not allow an appeal against his decision to the District Judge, the High Court or any other superior authority.”

26. In — ‘Balkrishna Daji Gupte v. Collector, Bombay Suburban’, AIR 1923 Bom 290 (R) Maeleod G.J observed that the Collector is bound to make a reference only if he does not consider the application as time barred. In — ‘Abdul Sattar Sahib v. Special Deputy Collector, Vizagapattam’, AIR 1924 Mad 442 (FB)(S) which was followed in — ‘AIR 3946 Mad 184 (P)’, Odgers J. observed at page 445: “He (Collector) 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.”

27. The Travancore High Court also has taken the same view in — ‘Dc'Cruz v. Sirkar’, 1946 Trav LR 672 (T). Sankarasubba Iyer, J. observed:

“The learned counsel for the revision petitioners contended on the strength of the ruling in — ‘AIR 1932 Oudh 180 (Q)’ that the Land Acquisition Officer cannot dismiss a petition for reference on the ground of limitation. The adoption of such a view will have the effect of abrogating the proviso and we are for that reason not only not convinced of the correctness of the Oudh decision but are constrained to think that the view taken there is not right. In our opinion, the Land Acquisition Officer has jurisdiction to throw out the petition for reference if be finds that it has been preferred out of time.”

28. To the same effect is the observation of T.S Narayana Iyer, J. in ‘30 Cochin 65 (N)’ already referred to. The learned Judge said:

“Section 17 (Cochin) prescribes the conditions to be fulfilled for the right of the party to a reference to come into existence. They are the conditions to which the power of the Diwan Peishkar to make the reference is subject.”

29. We are clearly of opinion that the Collector acted within his jurisdiction in refusing to make a reference to the District Court on the ground that the application for reference was made out of time. It follows from this that there is no merit in this petition. It is, therefore, dismissed with costs.

A/G.M.J

30. Petition dismissed.