Karnataka High Court
Sri Ravindranath Bajpe vs Smt Sharada Bai on 18 February, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1 R
W.P.4934/13
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 18th DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
WRIT PETITION NO. 4934 OF 2013 (LA-RES)
BETWEEN:
SRI. RAVINDRANATH BAJPE
S/O. KONCHAPPA DEVADIGA
AGE 55 YEARS
RESIDING AT KALLODI
MALAVOOR VILLAGE
MANGALORE TALUK
DAKSHINA KANNADA DIST. - 571 214.
... PETITIONER
(BY SRI. B S SACHIN, ADVOCATE
FOR M/S. DHARMASHREE A/S)
AND :
1 SMT. SHARADA BAI
W/O. KONCHAPPA DEVADIGA
MAJOR
RESIDING AT KALLODI
MALAVOOR VILLAGE
MANGALORE TALUK
DAKSHINA KANNADA DISTRICT - 571 214.
2 THE SPECIAL LAND ACQUISITION
OFFICER, MANGALORE
DAKSHINA KANNADA DIST - 571 214.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF IN PRAYING TO QUASH THE
2
W.P.4934/13
IMPUGNED ORDER DATED 07.01.2013 PASSED BY THE COURT
OF II ADDITIONAL SENIOR CIVIL JUDGE AT MANGALORE ON
I.A. III IN LAC No. 14/2008 AND CONSEQUENTLY ALLOW THE
SAID APPLICATION - I.A. No. III IN LAC No. 14/2008 AS PRAYED
FOR VIDE ANN-A; AND ETC.
THIS WRIT PETITION COMING ON FOR PRL.HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner claims that his father by name Konchappa Devadiga acquired immovable property measuring 1 acre 72 cents and 0.12 cents in sy.No.8/1A and on his death the revenue registers recorded the name of the petitioner's mother none other than the widow-1st respondent, herein, being the seniormost member in the petitioner's family. According to the petitioner, his mother has no right, title and interest over the immovable properties and the acquisition proceedings commenced by the State to acquire the said property for a public purpose to wit for Bajpe Airport, in the name of the 1st respondent-mother, without notice issued to the petitioner, though petitioner's father had made a bequest of one half 3 W.P.4934/13 portion of the said property in favour of the petitioner. Petitioner asserts that his siblings and mother instituted O.S.No.32/2002 before the III Addl. Civil Judge (Sr.Dn), for declaration, partition and separate possession of various immovable properties belonging to the family at Bajpai and Malawar villages, whence the petitioner arraigned as defendant No.1, resisted the suit by filing written statement propounding the Will whereunder one half of the property was bequeathed in favour of the petitioner by his father.
2. Petitioner's mother-1st respondent having made an application under Section 18(1) of the Land Acquisition Act, 1894, for short LA Act, to the Spl. Land Acquisition Officer seeking enhancement of compensation, when found to be within the prescribed period, the Deputy Commissioner made a reference to the Civil Court for enhancement of compensation and deposited the compensation amount in terms of the 4 W.P.4934/13 award. The III Additional Civil Judge(Sr.Dn), Mangalore, D.K. registered the reference as LAC 14/2008. In that proceeding, petitioner filed I.A. No.III under Order 1 Rule 10(2) CPC to be impleaded as a 'supplemental claimant'. In the affidavit accompanying the application it was stated that the petitioner being the eldest son of late Konchappa Devadiga, the properties were purchased in the name of his widow, and was not the sole and absolute owner of the properties, and in view of the Will dt. 12.12.1970 bequeathing one half portion of the properties in favour of the petitioner. It was further stated that the petitioner, his mother and other siblings, hostile to the petitioner instituted O.S.32/2002 for declaration, partition and separate possession, and being a necessary and proper party, was to be impleaded as a 'supplemental claimant'.
3. That application was opposed by the claimants in the reference petition denying the Will dt. 5 W.P.4934/13 12.12.1970, on the allegation that the properties were self acquired properties of her husband since deceased and that the petitioner had no right to be impleaded in the said case.
4. The reference court framed points for consideration and declined to accept the plea that petitioner was a necessary and proper party and therefore, a 'supplemental claimant' and accordingly dismissed the application by order dt. 7.1.2013. Hence this petition.
5. The submission of the learned Counsel for the petitioner that the petitioner being the absolute owner of one half share of the immovable properties, subject matter of acquisition by the State, in the light of the bequest made by his father, though did not file an application under Section 18(1) of the 'LA Act' with the Spl. Land Acquisition Officer for enhancement of compensation, nevertheless is entitled to be impleaded 6 W.P.4934/13 as a 'supplemental claimant' to claim the benefits of enhancement of compensation in the event his mother- 1st respondent fails to prosecute the reference, is but a specious plea.
6. There is no dispute that the petitioner's, siblings and widowed mother have instituted O.S.32/2002 for declaration, partition and separate possession of immovable properties left behind by deceased Konchappa Devadiga by arraigning the petitioner as defendant No.1 whence he propounded a Will, of his father whereunder one half share of properties are said to have been bequeathed in favour of the petitioner. Therefore, title to immovable properties, subject matter of acquisition, is subject matter of adjudication and determination in the said Suit. It is also an admitted fact that no reference is made by the Deputy Commissioner for adjudication of such title dispute under Section 30 and 31(1) of the 'LA Act', 7 W.P.4934/13 obviously since no objections were raised by the petitioner or any other interested persons over such title.
7. There is also no dispute that it is widowed mother of the petitioner who filed the application under Section 18(1) of the 'LA Act' for enhancement of compensation, while, the petitioner did not make such an application. The petitioner having staked a claim to one half portion of the properties since acquired, as absolute owner in terms of the alleged bequest of his deceased father, subject matter of adjudication in O.S.32/2002 and if so declared by judgment and decree, then, petitioner would be entitled to compensation in respect of that portion of the property in terms of the award passed by the Spl.LAO. Since the petitioner did not make an application under Section 18(1) of 'LA Act' within the time prescribed in the proviso thereto, petitioner cannot be impleaded as a 8 W.P.4934/13 'supplemental claimant' by invoking Order 1 Rule 10 CPC, regard being had to the authoritative pronouncement of the larger Bench of Supreme Court in State of Karnataka -v- Laxuman1 observing thus:
"22. An application under Section 18(3)(b) of the Act is to compel a reference by the Deputy Commissioner. We have held that on the expiry of three years and 90 days from the date of the application for reference seeking enhancement the right of the Deputy Commissioner to make the reference comes to an end. In that context, and in the context of the fact that the claimant himself loses his right to move the court for compelling a reference, it is not possible to hold that by invoking Section 5 of the Limitation Act before the Land Acquisition Court the claimant can get over the bar to the remedy created by Section 18 of the Act. We are, therefore, of the view that Section 5 of the Limitation Act would have no application while approaching the court under Section 18(3)(b) of the Act and if the application is not within the time as indicated above, the same has only to be dismissed as was 1 (2005)8 SCC 709 # 2006(1) KLJ 129 9 W.P.4934/13 done in Thakoredas's case (supra) ((AIR 1994 SC 2227)."
8. The contention that if the widowed mother of the petitioner fails to prosecute the reference petition for enhancement of compensation, petitioner would be deprived of enhanced compensation, and hence is a proper and necessary party to be impleaded as a 'supplemental claimant', in my considered opinion is unacceptable. The widowed mother of the petitioner claiming to be the registered khatedar of the immovable property, subject matter of acquisition, having made an application for enhancement of compensation on the premise that she owns the property, cannot but be construed as a claimant for the purpose of Section 18 of the 'LA Act'. If the Civil Court in O.S.32/2002 records a finding that the Will is not proved and if there is a declaration that the suit properties are joint family property of deceased Konchappa Devadiga and if subjected to partition, it is needless to state that even if 10 W.P.4934/13 the petitioner is not impleaded as a party in the reference petition, would be entitled to the benefits of the enhanced compensation and not otherwise.
9. In view of the period of limitation prescribed in Section 18(2) of the 'LA Act', petitioner is disentitled to make an application under Section 18(1) nor is entitled to be impleaded as a supplemental claimant in LAC 14/2008.
9. Although the Civil Court did not considered the claim of the petitioner as has been done in this order, nevertheless, stumbled upon a correct conclusion in dismissing the application.
Petition devoid of merit is rejected.
Sd/-
JUDGE ln