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2023 DIGILAW 596 (KAR)

Nagendrappa v. Special Land Acquisition Officer

2023-04-13

S.R.KRISHNA KUMAR

body2023
JUDGMENT 1. This writ petition is directed against the impugned judgment and award dtd. 7/9/2013 passed in LAC No.1/2011 & connected matters by the Senior Civil Judge, Harihar, whereby the said petition filed by the petitioners under Sec. 18 of the Land Acquisition Act, 1894 (for short 'the L.A.Act') seeking enhancement of compensation was dismissed by the reference court. 2. Heard learned counsel for the petitioners, learned AGA for the 1st respondent - State as well as learned counsel for the 2nd respondent and perused the material on record. 3. The material on record discloses that pursuant to the acquisition proceedings initiated in respect of the subject lands, the respondents passed an award on 18/8/2004 and a notice of the same was served upon the petitioners - claimants on 2/4/2005, pursuant to which, the petitioners filed reference applications before the 1st respondent - SLAO on 20/5/2005 within the prescribed period of 90 days. However, the SLAO did not refer the matter to the reference court, as a result of which, the petitioners submitted a reminder application on 20/3/2008 to the SLAO, who did not refer the matter at that time also. However, subsequently, on 29/3/2009, i.e., after a lapse of more than 3 years 90 days from the date of the application filed by the petitioners on 20/5/2005, the SLAO referred the matter to the civil court, which proceeded to dismiss the same as barred by limitation in view of the judgment of the Apex Court in the case of State of Karnataka vs. Laxuman - (2005) 8 SCC 709 , by holding as under:- " 15. This Court has also held that in proceedings under the Land Acquisition Act before the authorities under that Act, Sec. 5 of the Limitation Act has no application. [See Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal [ (1996) 9 SCC 414 ] .] Therefore, Sec. 5 of the Limitation Act cannot be resorted to while making an application under Sec. 18(1) of the Act and the application has to be made within the period fixed by Sec. 18(2) of the Act. 16. The Division Bench of the High Court in Special Land Acquisition Officer v. G.C. Paramraj [ILR (1991) 2 Kant 1109] held that the Reference Court has not only the power, but also the duty, to consider whether the reference was time-barred and therefore invalid. 16. The Division Bench of the High Court in Special Land Acquisition Officer v. G.C. Paramraj [ILR (1991) 2 Kant 1109] held that the Reference Court has not only the power, but also the duty, to consider whether the reference was time-barred and therefore invalid. It also held that Article 137 of the Limitation Act applies to an application under Sec. 18(3)(b) of the Act, a position approved by this Court. Then the Division Bench held that the power to make a reference under Sec. 18(3) subsists till the right of the party to make an application before the court seeking a direction to the Deputy Commissioner to make a reference exists and from this it followed that there is no power in the Deputy Commissioner to make a reference thereafter and if such a reference is made by the Deputy Commissioner it is invalid. An application to the court not made within 3 years after the expiry of 90 days from the date of the application under Sec. 18(1) of the Act, had to be rejected in limine. The Division Bench laid down the law thus: "It is a well-recognised rule of construction that in order to ascertain the true meaning of a provision the intention of the legislature, as ascertainable from the language of the provision is the safe guide. From the amendment of Sec. 18, it is clear that in addition to the time-limit of 90 days fixed in Sec. 18, the legislature intended to create a duty in the Deputy Commissioner to make a reference within 90 days and further if within the said period the Deputy Commissioner/Land Acquisition Officer failed to make a reference, to confer a right on the party to make an application before the court seeking a direction to the Deputy Commissioner to make the reference. If that right is not exercised by the party within time, then the right ceases. Once the right of the party to get a reference is time-barred, it would be incongruous to hold that the Deputy Commissioner can still make a reference, at any time even after decades. If that right is not exercised by the party within time, then the right ceases. Once the right of the party to get a reference is time-barred, it would be incongruous to hold that the Deputy Commissioner can still make a reference, at any time even after decades. In our view, it is reasonable to construe the provision to mean that the date on which the right of the party to get a reference comes to an end would also be the date on which the power of the Deputy Commissioner to make reference comes to an end. We are not persuaded to agree with the construction suggested for the respondent that the power of the officer continues even after the right of the party comes to an end and continues forever. It means even after an application made before the court after three years is rejected as the court is powerless to entertain a time-barred application, the Deputy Commissioner would have the power to make a reference, nullifying the order of the court rejecting the application as time-barred. Such a construction would lead to a situation in which in one case the Deputy Commissioner could make a reference if he so desires and in another he could refuse to do so, if he so desires, in which even the party would be helpless. In other words, the Deputy Commissioner could act according to his whims and fancies. It is difficult to agree that the legislature intended to bring about such a result. Further, such a construction which brings about anomalous and incongruous results and gives ample scope for nepotism, favouritism and corruption, should not be given. We have come across several references made after two decades, particularly after several additional benefits were conferred by Amending Act 68 of 1984 amending the Land Acquisition Act. In our opinion, the correct view to take is, just as the party loses the right to the reference if no application is made within 90 days in terms of Sec. 18(2), the party, who had made an application within 90 days, loses the right to secure a reference if he fails to make an application within three years after the expiry of 90 days from the date of the reference application and consequently the power of the Deputy Commissioner/Land Acquisition Officer to make reference comes to an end. We are, therefore, of the view that the date of cessation of the Deputy Commissioner to make the reference also constitutes the date of cessation of power of the Deputy Commissioner. To put it in a nutshell the latter comes to an end on the date on which the former ends and the award of the Land Acquisition Officer becomes final. Therefore, neither the party can seek a reference nor the Deputy Commissioner can make the reference after the expiry of 3 years and 90 days from the date of the reference application." In view of some differences of opinion that subsequently arose mainly because of the failure to appreciate the reasoning of the Division Bench as above, the question was referred to a Full Bench. The Full Bench, by a majority, has overturned the above view. That decision of the Full Bench is reported as Hanamappa v. Special Land Acquisition Officer [ILR 1998 Kant 4071 (FB)] . That decision is challenged in Civil Appeal No. 1566 of 2001. 17. While one of the Judges agreed with the position expounded by the Division Bench in G.C. Paramraj [ILR (1991) 2 Kant 1109], two of the learned Judges proceeded to hold that the Division Bench in G.C. Paramraj [ILR (1991) 2 Kant 1109] did not lay down the correct law. It is seen that while holding so, the Court stated that there was no mandatory obligation on the Deputy Commissioner to make a reference within 90 days as provided under Sec. 18(3)(b) of the Act and there is no provision for loss of right in the claimant once he had made an application for reference under Sec. 18(1) of the Act within the time prescribed by Sec. 18(2) of the Act. The consequences flowing from the claimant not seeking to enforce his right under Sec. 18(3)(b) of the Act in a case where the reference was not made within the time mandated by the statute was got over by invoking the theory that there was no provision for extinguishment of the right and that a party cannot be penalised for the failure of the Deputy Commissioner to make the reference. The majority stated that the decision in Addl. Spl. The majority stated that the decision in Addl. Spl. Land Acquisition Officer v. Thakoredas [ (1997) 11 SCC 412 : AIR 1994 SC 2227 ] rendered by this Court would not in any manner suggest that the view they are adopting was erroneous. The question whether the expression "shall" used in Sec. 18(3)(a) of the Act made it mandatory for the Deputy Commissioner to make a reference within 90 days or whether the provision was only directory was discussed at length. The presiding Judge, on the other hand, adopted the approach made in Paramraj case [ILR (1991) 2 Kant 1109] and held that there was no reason to reconsider the view expressed therein. The learned Judge noticed that even in the matter of issue of a writ of mandamus under Article 226 of the Constitution, in State of M.P. v. Bhailal Bhai [ (1964) 6 SCR 261 : AIR 1964 SC 1006 ] this Court had held that after the expiry of the period of limitation and on the ground of uncondonable laches, the same cannot be sought for or issued. 18. The majority, in our view, was not justified in mixing up the position obtaining under Sec. 18 of the Central Act and the position obtaining under Sec. 18 of the Act as amended in Karnataka. The Court had to consider the scheme of Sec. 18 as obtaining in Karnataka, the scope of the relevant provisions and the consequences arising from it, unaffected by what might be the position under Sec. 18 of the Central Act. Sec. 18 of the Act as in Karnataka, in fact, confers additional rights on a claimant by providing an extended time for making a claim for reference, possibly considering the situation available in the State and a further right on the claimant to approach the Land Acquisition Court for directing a reference to it, based on the application already made by him before the Deputy Commissioner. The High Court, in our view, erred in proceeding on an enquiry as to whether the obligation under Sec. 18(3)(a) of the Act on the Deputy Commissioner was mandatory or directory. The High Court, in our view, erred in proceeding on an enquiry as to whether the obligation under Sec. 18(3)(a) of the Act on the Deputy Commissioner was mandatory or directory. In fact, if one were to go by the use of the expression "shall", and the introduction of Sec. 18(3)(b) and the right conferred there under, there is no difficulty even in taking the view that it is mandatory for the Deputy Commissioner to make the reference within 90 days of receipt of the application for reference. When he fails to perform the mandate of the statute, the provision gives the claimant a right to approach the court which could compel the reference to be made by the Deputy Commissioner who had failed to perform his duty under Sec. 18(3)(a) of the Act and, in that process, even award costs of the proceedings against the Deputy Commissioner and, in appropriate cases, to be recovered from him personally. But what is relevant is not the question whether the duty cast on the Deputy Commissioner under Sec. 18(3)(a) of the Act as in Karnataka is mandatory or it is directory. On its scheme, the Deputy Commissioner is expected to make the reference within 90 days of the receipt of the application. On his failure to do so, the claimant has to approach the Land Acquisition Court for getting the matter referred." 4. A perusal of the impugned order passed by the trial court will indicate that the trial court has correctly and properly considered and appreciated the material on record and applied the law laid down by the Apex Court in Laxuman's case supra and dismissed the petition as barred by limitation. As rightly held by the reference court, pursuant to the award dtd. 18/8/2004, having been served upon the petitioners-claimants on 2/4/2005, the petitioners filed an application on 20/5/2005 within the prescribed period. However, despite the SLAO having not referred the matter to the civil court within the prescribed period of 90 days from 20/5/2005, the petitioners did not file any application / petition before the reference court within a period of three years from 20/8/2005 i.e., upon expiry of 90 days from the date they submitted an application on 20/5/2005. However, despite the SLAO having not referred the matter to the civil court within the prescribed period of 90 days from 20/5/2005, the petitioners did not file any application / petition before the reference court within a period of three years from 20/8/2005 i.e., upon expiry of 90 days from the date they submitted an application on 20/5/2005. Consequently, since neither the petitioners filed an application / petition under Sec. 18(3)(b) before the reference court nor did the SLAO make a reference within the prescribed period of 3 years 90 days from 20/5/2005 i.e., on or before 20/8/2008, the reference made by the SLAO on 29/3/2009 i.e., subsequent to the period of 3 years 90 days which expired on 20/8/2008, the said reference was hopelessly barred by limitation and was rightly and correctly dismissed by the reference court. 5. Under these circumstances, I am of the considered opinion that the trial court was fully justified in dismissing the petition as barred by limitation. Hence, I do not find any illegality or infirmity warranting interference by this Court in the present petition which is liable to be dismissed. However, as held by the Apex Court in Laxuman's case supra, liberty is reserved in favour of the petitioners to file applications / petitions under Sec. 28-A of the L.A.Act, if permissible in law and subject to all just exceptions. in the impugned order and the same is liable to be dismissed.