SHIVASHANKAR BHAT, J. ( 1 ) THE lower court has held that the reference made under Section 18 of the Land Acquisition Act (for short 'the Act') to be invalid as the same was barred by limitation. The claimant has come up with this revision petition. ( 2 ) THERE is no dispute that the application seeking reference was made within the prescribed period, under Section 18 (1) of the act. However, reference was made beyond 3 years and 90 days from the date of the application in this case, reference was received by the lower court after a lapse of more than 7 years. The lower court relied upon the decision of a Division Bench of this Court in assistant Commissioner v Lakshmi Bai [ilr 1987 Kar. 2132] (referred hereinafter as lakshmi Bai's case) to hold that since the right of the claimant to move the court for a direction to the Dy. Commissioner to make the reference under Section 18 (3) (b) gets barred by limitation after 3 years 90 days from the date of the first application under section 18 (1), the statutory obligation to make the reference ceases and hence the reference made after the cessation of the obligation will be invalid. ( 3 ) THE claimant's learned counsel relies on two unreported decisions of the learned chief Justice in support of the revision petition. However, according to Sri Ajit Gunjal the learned Government Pleader, the question is covered by the decision of the Division bench of this Court in Lakshmi Bai's case and this was not brought to the notice of the learned Chief Justice, when his Lordship made the order in C. R. P. Nos. 305 to 310 of 1988 - decided on 11th March, 1988. The learned Government Pleader urged for a fresh consideration of the question in the light of the decision in Lakshmi Bai's case. The Lakshmi Bai's case resolved the conflict of views expressed by two learned single judges of this Court in Uppara Basappa's case (ILR 1986 Kar. 2102) and Gwalior rayon Silk Manufacturing (Weaving) company's case (ILR 1982 Kar. 347 ). The division Bench in Lakshmi Bat's case, agreed with the opinion of Justice K. A. Swami in Gwalior Rayon's case. The sole question on which there was a divergence of opinion, was, whether the reference made by the Dy. 2102) and Gwalior rayon Silk Manufacturing (Weaving) company's case (ILR 1982 Kar. 347 ). The division Bench in Lakshmi Bat's case, agreed with the opinion of Justice K. A. Swami in Gwalior Rayon's case. The sole question on which there was a divergence of opinion, was, whether the reference made by the Dy. Commissioner under Section 18 of the Act, after the expiry of 90 days from the date of the application made to him under section 18 (1), was a competent reference, when the said reference was within 3 years from the expiry of the said 90 days. ( 4 ) IN Gwalior Rayon's case, reference to civil court, under Section 18 of the Act was made after the expiry of 90 days from the date of the application filed by the claimant. This was questioned by the revision petitioner as an invalid reference, since, the learned Civil Judge had overruled this objection. This Court affirmed the view and held that the power to make the reference is a statutory obligation of the Dy. Commissioner under Section 18, when an application seeking reference is filed within the stipulated period. While holding so, certain observations were made at para-5. 1, the effect of which is to say that, this obligation continues till the expiry of the period prescribed to make an application to the Civil court by the person interested to direct the Dy. Commissioner to make the reference. But this decision does not cover the question, in any manner, as to whether, the reference made by the Dy. Commissioner after the said prescribed period of 3 years is a valid reference. The observation in this decision is confined as to the extent of the statutory obligation of Dy. Commissioner which can be enforced by the 'persons interested' who sought the reference by a valid application under Section 18. ( 5 ) IN Lakshmi Bai's case the Division Bench of this Court also of the view that the obligation to make the reference subsists till the court could be moved in the matter under section 18 (3) (b ). In this case also, reference was made after 90 days. While referring to gwalior Rayon's case, the Division Bench in the Lakshmi Bai's case observed at page 2135 that, -"another learned single Judge, in gwalior Rayon Silk Mfg. (Wvg) Co. In this case also, reference was made after 90 days. While referring to gwalior Rayon's case, the Division Bench in the Lakshmi Bai's case observed at page 2135 that, -"another learned single Judge, in gwalior Rayon Silk Mfg. (Wvg) Co. Ltd. v lakshmawa has held such reference to be valid if the reference was within 3 years and 90 days from the date of filing of a valid application under Section 18 (1) of the Act. "at para-11, the Division Bench accepted the proposition stated in Gwalior Rayon's case as correct. Thereafter, a reference is made to the argument of Sri Kothavale that a reference made by the Land Acquisition Officer even after the expiry of 3 years 90 days would be a valid one. The Division Bench expressly left open this question, since in the said case the reference was within the period of 3 years from the expiry of 90 days. However, there is an observation to the effect -"as long as the Gwalior Rayon's case continues to hold the field, Sri Kothavale's proposition will not be of assistance". The issue in the form it has now arisen did not arise in any one of those two cases. In Gwalior Rayon's case, as well as in lakshmi Bai's case, the Court made the relevant observations pertaining to the extent of the statutory obligation of the Dy. Commissioner to make the reference. So long as the obligation subsists, it can be enforced. But the question here is, if a reference is made beyond the period when the obligation cannot be enforce, can such a reference be held as invalid. When the court in these two cases held that the statutory obligation 'subsisted' upto a particular period, the observations were actually in the background of availability of a forum to enforce the said obligation, i. e. , since the persons interested having made a valid application under Section 18 (1), did not get a reference within a period of 90 days, could compel the making of such a reference by filing an application in the Civil Court, andthe Dy. Commissioner is obliged to make the reference when called upon to do so by the Civil Court oa such an application and so the obligation was held to subsist upto that period. Commissioner is obliged to make the reference when called upon to do so by the Civil Court oa such an application and so the obligation was held to subsist upto that period. But can it be said that, a-reference made after the period prescribed to move the Civil court under Section 18 (3), is an invalid reference ? Such a reference will be invalid, as without jurisdiction, only if it can be said that, the earlier application made under Section 18 (1) ceases to be functional, on the expiry of 3 years 90 days. In other words, it will be necessary to hold that the failure to make a reference on an application under Section 18 (1), within the period prescribed to make the application under Section 18 (3), results in a "deemed rejection" of the earlier application. But a deeming provision is a fiction to be statutorily created. Nowhere the act says that the application filed under Section 18 (1) shall be deemed to have been rejected on the expiry of any particular period. ( 6 ) AN award, it is said, results in an offer on behalf of the government. The person interested may accept the award or, if dissatisfied with it, may accept the compensation under protest and may seek a reference under Section 18. When a reference is, thus sought by filing an application under Section 18 (1), the 'offer' made by the award stands unaccepted by the person interested. This 'offer' continues, until a binding decree decides the question on a reference under Section "18. The remedy to enforce his claim by the 'person interested' is lost, against the award, under the Act, if he does not invoke the remedial process within the stipulated period. Having once invoked the process, can it be said that, he loses the right altogether, it he fails to further invoke another process under Section 18 (3) ? ( 7 ) IT is said that bar of limitation affects the remedy, but does not extinguish the right. The exception to this rule is found in Section 27 of the Limitation Act. Said provision has no relevancy to the right to seek a reference in respect of the amount of compensation under Section 18 of the Act. ( 7 ) IT is said that bar of limitation affects the remedy, but does not extinguish the right. The exception to this rule is found in Section 27 of the Limitation Act. Said provision has no relevancy to the right to seek a reference in respect of the amount of compensation under Section 18 of the Act. Therefore, it is not possible to hold that a 'person interested' in the award looses his right altogether to any claim which he may have made under Section 18 (l) (a ). Effect of the failure on his part to move the court under Section 18 (3) is to deprive him of the remedy to enforce the making of a reference. But, it does not result in nullifying the reference itself that may be made by the Dy. Commissioner as per the original application, which was under deep slumber with him all these years. ( 8 ) THE Dy. Commissioner gets the jurisdiction to make the reference under Section 18 (1), only if an application is made to him within 90 days as stipulated in the said provision. If the application under Section 18 (1) is beyond the said period, then reference will be invalid. This was the ratio of the decision of the Supreme Court in Md. Hasnuddin v State of Maharashtra ( AIR 1979 SC 404 ) and of this Court in Lakshmi Bai's case. When the application is within the time prescribed, it results in creating a statutory obligation in the Dy. Commissioner to make the reference. The right in the applicant to enforce the said obligation subsists, because of the continuation of the obligation, till the expiry of the period within which the applicant may move the Court, on failure by the dy. Commissioner to make the reference under Section 18 (1 ). ( 9 ) THE distinction between an application under Section 18 (1) and of an application under Section 18 (3) is brought out in lakshmi Bai's case, at para-7, thus: "there is a fundamental distinction between the nature and quality of the prescription of time in the second proviso to Section 18 (2) on the one hand in section 18 (3) (a) on the other. The first is a case of limitation for the enforcement of a right and seeking a remedy; the other is a case of prescription of time for the performance of a statutory duty. In the very nature of things, these two prescriptions cannot be put on the same footing, for purposes of construction. A provision prescribing limitation is a disabling one. An accessory right - a right to a remedy - gets barred. In M. P. Industries Ltd. v State of Maharashtra (1968) 22 STC 400, Supreme Court observed:"it is common knowledge that the law generally prescribes limitation for initiating proceedings and not a period within which a pending proceeding should be disposed of. But the prescription of a time-limit in section 18 (3) (a) relates to the performance of a statutory duty. As we have seen, Section 18 (3) (a) imposes a duty on the L. A. O. to make a reference when there is a valid application under Section 18 (1) in that behalf. The statute then says that duty shall be discharged by performance within a specified time. Does it lie in the power of the L. A. O. to defeat the provisions which impose the duty by disregarding its performance within the time prescribed ?" ( 10 ) THEREAFTER, the Division Bench proceeded to say, at page 2144:"in the present case, the prescription of time In Section 18 (3) (a) is for the benefit and furtherance of the right of the person-interested and was clearly not intended as a time limit beyond which the statutory duty itself would get extinguished. We think we should not opt for an interpretation which has this consequence, as serious general inconvenience would result from such an interpretation. It would not also promote the objects of the legislature in building- in this provision in the statute. "at para-11, the answer of the Division bench on the main question was stated,"statutory obligation to make a reference would continue and remain subsisting till the corresponding right on the part of the person interested to seek and compel a reference subsists. Swami, J. in Gwalior rayon's case has held that this obligation continues till the expiry of the period of three years which is held to be the period of limitation for making an application under Section 18 (3) (b ). Swami, J. in Gwalior rayon's case has held that this obligation continues till the expiry of the period of three years which is held to be the period of limitation for making an application under Section 18 (3) (b ). It appears to us that the view taken by Swami, J. should be preferred to the one taken in Uppara basappa's case. If we prefer the view in uppara Basappa's case undeserved injustice and hardship would be occasioned to the parties. " ( 11 ) WHILE answering the aforesaid question, the present problem posed by the learned government Pleader was specifically left unanswered, as can be seen from the following passage:"sri Kothavale urged that the right of the person interested to compel a reference should not be held to come to an end even after the expiry of 3 years and 90 days and that a reference made by the l. A. O. even thereafter would be a valid one. It is unnecessary to go into and answer that question here. The reference in the present case is within the period of 3 years from the expiry of 90 days. We hold the reference to be valid. As long as the Gwalior Rayon's case continues to hold the field, Sri Kothavale's proposition will not be of assistance. " ( 12 ) THE learned Government Pleader obviously, wants to take advantage of the last sentence, which should be actually understood in the background of the underlined sentence. Nowhere, in Gwalior Rayon's case, swami, J. has observed that a reference made after 3 years 90 days, from the date of an application filed under Section 18 (1) would be invalid. The ratio of these two decisions is that, on expiry of 90 days from the date of the application under Section 18 (1), the 'person interested' gets a right to move the Civil Court under Section 18 (3), and the said application to move the court should be filed within 3 years of the date of the expiry of the first 90 days. The barring of the right to move the court, after the period of limitation, under section 18 (3), cannot result in taking away the competence of the Dy. Commissioner to wake up to his responsibility and discharge the function of making the reference, so long as the initial application under Section 18 (1) is pending undisposed of. The barring of the right to move the court, after the period of limitation, under section 18 (3), cannot result in taking away the competence of the Dy. Commissioner to wake up to his responsibility and discharge the function of making the reference, so long as the initial application under Section 18 (1) is pending undisposed of. In my view, this is a typical case of a remedy, under the Act, to enforce the right getting barred, without affecting the competence of the obligee to discharge his unenforceable obligation, a concept well-known in law. Such a reference in no way affects its validity. ( 13 ) IN Gunisangappa etc. etc. v The Spl. Land acquisition Officer, UKP, Narayanapur (C. R. P. Nos. 305 to 310 of 1988 - D. D. 11-3- 1988) his Lordship the Chief Justice , reasoned:"for no fault of the petitioners, reference was kept pending by the Land Acquisition officer for a period of about 5 years. For this unexplained lapse on the part of the land Acquisition Officer, the petitioners cannot be penalised. It is correct that under Section 18 if reference is not made within 90 days then the claimants may move the Land Acquisition Officer. But, the failure on the part of the claimants to move the Land Acquisition Officer would not disentitle them to enhanced compensation if they are so found entitled to on a reference which is made after inordinate delay by the Land Acquisition officer. In the circumstances of the case, the learned Civil Judge has acted with material irregularity in dismissing the reference on the ground that the Land acquisition Officer has made the reference after a lapse of nearly five years", ( 14 ) IN Lakkappa etc. etc. v The SPL. L. A. O. UKP, Narayanapur (C. R. P. NOS. 721 to 728 of 1989 and connected petitions - D. D. 14-2-1989) referring to Lakshmi Bai's case, the learned Chief Justice observed:"it may straightaway be pointed out that in that judgment the point in controversy has been left undecided". Therefore, the order of the court below cannot be sustained and the same is liable to be set aside. In the result, for the reasons stated above, this petition is allowed, the order under revision is set aside and matter is remanded to the court below with a direction to proceed with the case in accordance with law. Therefore, the order of the court below cannot be sustained and the same is liable to be set aside. In the result, for the reasons stated above, this petition is allowed, the order under revision is set aside and matter is remanded to the court below with a direction to proceed with the case in accordance with law. No order as to costs. --- *** --- .