Karnataka High Court
Venkatesh S/O. Ninganagouda Patil @ ... vs The Special Land Acquisition Officer on 18 January, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.79636/2013 (LA-RES)
BETWEEN:
VENKATESH S/O. NINGANAGOUDA
PATIL @ GUDAR, AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O.UDAGATTI,
BAGALKOT.
... PETITIONER
(BY SRI. ANAND R. KOLLI, ADV., )
AND
1. THE SPECIAL LAND ACQUISITION OFFICER,
MIP, NO.3, MALAPRABHA PROJECT,
DHARWAD.
2. THE EXECUTIVE ENGINEER,
M.L.B.C. DIVN NO.1,
GADDANAKERI,
BAGALKOT.
... RESPONDENTS
(BY SRI.A.G.MALDAR, HCGP, ADV., FOR R1,
SRI. RAMESH N. MISALE, ADV., FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER PASSED BY THE II ADDL. SENIOR CIVIL
JUDGE, BAGALKOT DATED 20.04.2013 IN LAC NO.191/2010
AND SAME IS HEREWITH PRODUCED AND MARKED AS
ANNEXURE-B ETC.,
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THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel appearing for the petitioners. Perused the order under challenge in this writ petition.
2. Land measuring 33 guntas in Sy.No.106/2 belonging to the petitioner was acquired for the purpose of canal erection in the year 2003. An award came to be passed and notice of award was also issued to the petitioner. Petitioner not being satisfied with the award sought for reference to Civil Court by submitting a representation to the Special Land Acquisition Officer- 1st respondent. Reference was not made and after a period of three years, an application was filed before the jurisdictional Civil Court seeking for direction to the Deputy Commissioner/Special Land Acquisition Officer to refer the claim under Section 18 of the Land Acquisition Act (for short 'the Act'). On service of notice, :3: Special Land Acquisition Officer as well as the beneficiary appeared and statement of objections was filed on behalf of Special Land Acquisition Officer contending interalia that petition filed seeking for reference is barred by limitation.
3. Claimant got himself examined as PW.1 and got produced two documents namely reference petition and certified copy of award passed in LAC No..401/2012. On behalf of respondents, no evidence was tendered and by consent of learned advocates, copy of the award came to be produced and marked as Ex.R1. After considering the pleadings and on evaluation of evidence, reference Court rejected the petition as having been filed after the period of limitation is over. In other words, reference Court held that petition is time barred. It is this order passed in LAC No.191/2010 on 20.04.2013 by the 2nd Additional :4: Senior Civil Judge, Bagalkot which is impugned in the present writ petition.
4. It is the contention of Sri.Anand Kumar Kolli, learned counsel appearing for the petitioner/claimant that petitioner had filed an application on 19.02.2007 before Land Acquisition Officer which was well within the time as per proviso to sub Section (2) of Section 18 of the Act namely it was filed within 90 days from the date of service of award notice under sub Section (2) of Section 12 of the Act. Hence, he contends that delay if any on the part of Special Land Acquisition Officer to make reference to Civil Court cannot be attributed to the petitioner and as such, right of petitioner to claim enhanced compensation cannot be truncated. As such, he contends that impugned order be set aside and petition be allowed and Deputy Commissioner/Land Acquisition Officer be directed to refer the papers to reference Court :5: under Section 18 of the Act for being adjudicated on merits to award enhanced compensation.
5. Per contra, Sri.Maldar learned HCGP., appearing for the State would support the order passed by the trial Court and contends that 90 days period prescribed under clause (b) of sub Section (3) of Section 18 of the Act clearly prohibits the land looser or the claimant seeking for reference beyond the period of 3 years and in the instant case, trial Court on factual examination has found that direction sought for by the petitioner to the Deputy Commissioner/Land Acquisition Officer to refer the matter to reference Court was barred by limitation namely it was beyond the period of three years and trial Court was fully justified in dismissing the petition. In support of his submission he relies upon the judgment of the Hon'ble Apex Court in the case of State of Karnaaka V/s Laxuman reported in 2006 (1) KLJ 129.
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6. Having heard the learned advocates appearing for parties and on perusal of the case appears as also the case law relied upon by learned HCGP, I am of the considered view that following points would arise for my consideration.
1. Whether trial Court was correct in law in rejecting the petition filed by the petitioner seeking a direction to the Deputy Commissioner to refer the petition claim to Civil Court under Section 18 of the Act in LAC No.191/2010 on the ground that it is filed beyond the period prescribed under clause (b) of sub Section (3) of Section 18 of the Act?
2. What order?
7. In order to adjudicate the point formulated herein above it would be necessary to extract the relevant statutory provisions pressed into service and :7: the case laws relied upon by the learned advocates and the extent of their applicability to the facts on hand.
Land Acquisition Act, 1894
18. Reference to Court:- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector 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.
(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 Collector at the time when he made his award, within six weeks from the date of the Collector's award;:8:
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 sub Section (2) or within six months from the date of the Collector'[s award, whichever period shall first expire.
Karnataka - In Section 18,-
(1) after the word 'award', where it occurs for the first time, insert the words "or amendment thereof" and after the said word, wherever it occurs thereafter, insert the words "or the amendment".
(2) Proviso to sub-Section (2), has been substituted with the following proviso, namely:-
"provided that every such application shall be made within ninety days from the date of service of the notice from the Deputy Commissioner under sub-Section (2) of Section 12.";
(3) after sub-Section (2), following sub-Section has been added, namely:-
"(3) (a) The Deputy Commissioner shall, within ninety days from the date of receipt of an :9: application under sub-Section (1), make a reference to the Court;
(b) if the Deputy Commissioner does not make a reference to the Court within a period of ninety days from the date of receipt of the application, the applicant may apply to the Court to direct the Deputy Commissioner to make the reference, and the Court may direct the Deputy Commissioner to make the reference within such time as the Court may fix".
PART -II -OTHER APPLICATIONS Article Description of Period of Time from application limitation which period begins to run 137 Any other Three years When the application for right to which no period apply of limitation is accrues.
provided elsewhere in this division : 10 :
8. It is not in dispute that in the year 2003, land belonging to the petitioner measuring 33 guntas in Sy.No.106/02 came to be acquired. Chronological dates and events are narrated herein below as it would have bearing and nexus to adjudicate the point formulated herein above.
Date Particulars 23.11.2006 Award came to be passed determining the land in question as dry land and fixing the compensation payable at Rs.35,939/- per acre.
20.01.2007 Under Section 12(2) of the Act, notice served on the petitioner.
18.02.2007 Application cum petition submitted by the petitioner seeking reference under proviso to sub Section (2) of Section 18 of the Act.
07.12.2010 Date of filing petition in LAC No.191/2010 seeking determination of compensation.
: 11 :ANALYSIS OF STATUTORY PROVISIONS:
9. Sub Section (1) of Section 18 of the Act enables a person who has not accepted the award to seek for reference to Civil Court by the Deputy Commissioner for determination of compensation or to the measurement of the land or the apportionment of compensation amongst persons interested for being adjudicated by reference Court. Sub Section (2) of Section 18 of the Act mandates that applicant has to state the grounds on which objection to the award is being taken. Clause (a) of the proviso would indicate that if the person making such objection was present or represented before the Deputy Commissioner when award was made than he has to file such application for reference within six weeks from the date of the award and in all other cases within six weeks of the receipt of notice from the Deputy Commissioner under sub Section (2) of Section 12 or within six months from the date of the award whichever : 12 : period shall first expire. Section 18 of the Act in so far as applicable to the State of Karnataka has been amended as noticed hereinabove. After sub Section (2) proviso has been substituted which would indicate that aggrieved person who intends to file an application under sub Section (1) of Section 18 of the Act has to make such application within 90 days from the date of service of notice from the Deputy Commissioner under sub Section (2) of Section 12. Sub Section (3) has also been inserted after sub Section (2) which would indicate that Deputy Commissioner on receipt of an application under sub Section (1) should make reference to the Court within 90 days from the date of receipt of such application under sub Section (1) Clause (b) of sub Section (3) of the Act would indicate that in the event of Deputy Commissioner failing to make reference to the Court within a period of 90 days from the date of receipt of the application, the applicant would be at liberty to make an application to the Civil Court seeking direction : 13 : to the Deputy Commissioner to make the reference and in such an event, the Court can direct the Deputy Commissioner to make reference within such time as the Court may fix.
10. The question that would arise is as to when the limitation starts to enable the applicant to file an application and when it would end. In so far as the starting point of limitation is concerned, no doubt can arise inasmuch as clause (b) of sub Section (3) of Section 18 of the Act is clear and unambiguous. Perusal of Clause (a) of sub Section (3) of Section 18 of the Act would indicate that Deputy Commissioner within 90 days from the date of receipt of application seeking for reference has to make reference to the Civil Court. On the 91st day he looses his right to make reference. Likewise, even after receipt of the application from the applicant seeking for reference Deputy Commissioner fails to refer the matter to the Court for : 14 : being adjudicated, then after the completion of 90 days from the date of which the applicant sought for reference expires then cause of action for the applicant to file an application before Civil Court would commence on 91st day or in other words, from the date of submitting application to Deputy Commissioner seeking reference if he does not make reference to Court within 90 days then cause of action for the applicant starts ticking from the 91st day. Then next question that would arise as to when the limitation would end. Clause (b) of sub Section (3) of Section 18 of the Act is silent on this aspect. However, it cannot be gainsaid that limitation would not end at all or it is continuing cause of action. It is at this juncture, the provision of the limitation Act, 1903 would surface and Article 137 of the limitation Act which is a residuary Article would become applicable.
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11. A perusal of Article 137 of the Limitation Act would clearly indicate that if no period of limitation is provided under the limitation Act, such application is required to be filed within three years when the right to apply accrues. Since, clause (b) of sub-Section (3) of Section 18 of the Act does not indicate that the outer limit within which an application will have to be filed the residuary Article i.e., Article 137 of the Limitation Act, would apply. Article 137 of the Limitation Act when read in conjunction with Clause (b) of sub Section (3) of Section 18 of the Act, it would clearly indicate that limitation to file an application seeking direction to the Deputy Commissioner to make reference would commence or start from the 91st day of the applicant having submitted his application seeking reference ends or in otherwords, it commence from the 91st day and ends at the end of 3rd year from the said day. : 16 : CASE LAWS:
12. In this background, facts on hand requires to be examined as to whether the applicant in the present petition had filed the application within these parameters or not. Before embarking upon such an enquiry, it would be appropriate to note the judgment of the Apex Court in the case of State of Karnataka V/s Laxuman reported in 2006 (1) KLJ 129 whereunder, it has been held as under:
3. As can be seen, no time for applying to the Court in terms of sub Section (3) is fixed by the statute. But since the application is to the Court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963, would be attracted and the application has to be made within three years of the application for making a reference or the expiry of 90 days after the application. The position is settled by the decision of this Court in Additional Special Land Acquisition Officer, Bangalore V. Thakoredas and Others. It was held:: 17 :
"Admittedly, the cause of action for seeking a reference had arise on the date of service of the award under Section 12(2) of the Act. Within 90 days from the date of the service of notice, the respondents made the application requesting the Deputy Commissioner to refer the cases to the Civil Court under Section 18. Under the amendment sub Section (3)(1) of the Act, the Deputy Commissioner shall, within 90 days from September1, 1970 make reference under Section 18 to the Civil Court which he failed to do. Consequently, by operation of sub-section (3)(b) with the expiry of the aforestated 90 days the cause of action had accrued to the respondents to make an application to the Civil Court with a prayer to direct the Deputy Commissioner to make a reference. There is no period of limitation prescribed in sub-section (3)(b) to make that application but it should be done within limitation prescribed by the Schedule to the Limitation Act. Since no Article expressly prescribed the limitation to make such application, the residuary article under Article 137 of the Schedule to the Limitation Act gets attracted. Thus, it could be seen that in the : 18 : absence of any special period of limitation prescribed by clause (b) of sub-section (3) of Section 18 of the Act, the application should have been made within three years from the date of expiry of 90 days prescribed in Section 18(3)(b) i.e., the date on which cause of action had accrued to the respondent-claimant. Since the applications had been admittedly made beyond three years, it was clearly barred by limitation. Since, the High Court relied upon the case in Town Municipal Council, Athani v Presiding Officer, Labour Court, Hubli, AIR 1969 SC 1335: (1970)1 SCR 51: 1969-II-LLJ-651 (SC), which has stood overruled, the order of the High Court is unsustainable".
This position is also supported by the reasoning in Kerala State Electricity Board v. T.P. Kunhaliumma. It may be seen that under the Central Act sans the Karnataka Amendment there was no right to approach the principal Civil Court of original jurisdiction to compel a reference and no time-limit was also fixed for making such an approach. All that was required of a claimant was to make an application for : 19 : reference within six weeks of the award or the notice of the award, as the case may be. But obviously the State Legislature thought it necessary to provide a time frame for the claimant to make his clam for enhanced compensation and for ensuring the expeditious disposal of the application for reference by the authority under the Act fixing a time within which he is to act and conferring an additional right on the claimant to approach the Civil Court on satisfying the condition precedent of having made an application for reference within the time prescribed.
4. A statute can, even while conferring a right, provide also for a repose. The Limitation Act is not an equitable piece of legislation but is a statute of repose. The right undoubtedly available to a litigant becomes unenforceable if the litigant does not approach the Court within the time prescribed. It is in this context that it has been said that the law is for the diligent. The law expects a litigant to seek the enforcement of a right available to him within a reasonable time of the arising of the cause of : 20 : action and that reasonable time is reflected by the various article of the Limitation Act.
7. Under the Karnataka scheme, the period for making an application for reference has been enhanced from six weeks to 90 days and the terminus a quo is the receipt of notice from the Collector under Section 12(2) of the Act. The Section proceeds further and imposes a duty on the Deputy Commissioner to make the reference to the Court within 90 days from the date of receipt of the application under Section 18(1) of the Act. Though it may be not be conclusive what one has to notice is that expression used is "shall" and not "may". The scheme does contemplate a situation where the Deputy Commissioner, inspite of the peremptory nature of the duty cast on him still fails to make the reference within the time stipulated by sub- section (3)(a) of Section 18. The claimant is, therefore, given the right to approach the Court, namely, the Court that is to deal with the claim on the reference being made, to direct the Deputy Commissioner to make the reference within a time to be fixed by the Court. This right to apply : 21 : to the Court which is to deal with the reference, is not available under the Central Act.
8. Whatever might have been the controversy in the High Court in that regard, after the decision of this Court in the Thakoredas case, the time for approaching the Court under Section 18(3)(b) of the Act stand crystallised. The application has to be made within three years of three years of the expiry of 90 days from the date of application under Section 18(1) of the Act made by the claimant. If the application is not made within that time the right to move is lost. In that case, the Court dismissed the application under Section 18(3)(b) of the Act. We have, therefore to proceed on the basis that the remedy of approaching the Court under Section 18(3)(b) of the Act gets extinguished on the expiry of the period limited therefor. DISCUSSION AND CONCLUSION:
13. If Section 18(1) and 18 (2) of the Act are read in isolation without reference to Karnataka amendment, it would clearly indicate that there was no right to an : 22 : applicant to approach the Civil Court to compel a reference and no time limitation was also fixed for making such a prayer. All that clause (a) of proviso to sub Section (2) would enable an applicant is to make an application for reference within six weeks of the award if he is represented before Collector or from the date of receipt of notice of the award as the case may be.
However, Karnataka amendment provides a time frame for the claimant to make his claim for enhanced compensation and to ensure expeditious disposal of such application seeking for reference by the Deputy Commissioner a time frame is fixed within which the Deputy Commissioner has to act and it also confers an extra right to the claimant to approach the Civil Court seeking direction to Deputy Commissioner to make reference subject to the condition that applicant having filed such an application for reference within the time prescribed under clause (b) of sub Section (2) as the case may be.
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14. It is not in dispute that in the instant case that award came to be passed on 23.11.2006. Notice of award as required under sub Section (2) of Section 12 of the Act was served on the petitioner on 20.01.2007. Thereafter, writ petitioner has submitted an application on 18.02.2007 to the Special Land Acquisition vide Annexure-A seeking reference to Civil Court as required under proviso to sub Section (2) of Section 18 which was well within 90 days period prescribed. Up to this stage there is no dispute. These are admitted facts. It is also not in dispute that Deputy Commissioner ought to have made a reference to the jurisdictional Civil Court within 90 days from the date of receipt of such application having been made seeking reference. It is at this stage clause (b) of sub Section 3 of Section 18 would surface or in otherwords, would come to the rescue of the applicant namely on failure of the Deputy Commissioner to make reference within period of 90 days from the date or receipt of application, such : 24 : applicant need not wait eternally hoping that Deputy Commissioner would refer the matter to Civil Court by way of reference. Clause (b) of sub Section (2) of Section 18 of the Act has given the applicant an additional right to approach the Civil Court seeking for a direction to the Deputy Commissioner to make a reference. In the instant case, after submitting his representation on 18.02.2007 Annexure-A to Deputy Commissioner requesting for reference, applicant seems to have slipped into coma or in other words he did not pursue his grievance nor he filed a petition to the Civil Court immediately thereafter or in other words, he kept quiet for a period of three years i.e. up to 07.12.2010. However, suddenly having woken up from his deep slumber, claimant thought fit to file an application before Civil Court seeking determination and enhancement of compensation payable to him by filing an application on 07.12.2010. Undisputedly, it was beyond the period of three years as prescribed under : 25 : Article 137 of the Limitation Act when reckoned from the date of petitioner having submitted an application to the Land Acquisition Officer seeking reference i.e. on 18.02.2007. Writ petitioner ought to have sought for reference, on completion of 90 days i.e. from commencement of 91st day and before the period of three years. 90 days period prescribed under clause (b) of sub Section (2) of Section 18 of the Act in the instant case would commence on 18.02.2007 and ends on 19th May 2007. In other words, 90 days would come to end on 19.02.2007. Thus, three years period reckoned from the 91st day or from 20th May 2007, petitioner ought to have filed application before the Civil Court seeking for a direction to the Deputy Commissioner to make reference on or before 19.05.2010. He did not choose to do so. On the other hand, he filed an application before the Civil Court seeking reference on 07.12.2010 which was barred by limitation. Question of condoning the delay does not arise and as such following the decision : 26 : of the Apex Court in Laxuman's case referred to supra the trial Court has rightly rejected the petition as having become time barred. Said order of the trial Court does not suffer from any irregularity either on facts or in law calling for interference at the hands of this Court. Re: Point No.2:
For reasons aforestated, I proceed to pass the following order:
ORDER
i) Writ petition is hereby dismissed.
ii) Order passed by the II Senior Civil Judge, Bagalkot dated 20.04.2013 in LAC No.191/2009 is hereby affirmed.
iii) No costs.
SD/-
JUDGE
BS