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Land Acquisition: Land Acquisition Act, 1894: Section 18 (as amended and adopted in State of Karnataka)-Reference to Court-Application under S. 18(3)(b)-Limitation period-Applicability of S. 5 of the Limitation Act-Notice of award under S. 12(2) served on the claimant-Claimant filed application under S. 18(1) seeking reference within 90 days as laid down in S. 18(2)-Deputy Commissioner failed to make a reference within 90 days as laid down in S. 18(3)(a)-Claimant approached civil court under S. 18(3)(b) after 10 years-Application for condonation of delay under S. 5 of the Limitation Act also filed-Civil Judge condoned delay and directed Deputy Commissioner to make a reference-High Court refused to interfere-Correctness of-Held: On expiry of a period of three years and 90 days right of Deputy Commissioner to make a reference and that of claimant to move the court gets extinguished-Section 5 of the Limitation Act cannot be invoked to an application under S. 18(3)(b)-High Court’s judgment set aside-Limitation Act, 1963, S. 5. The notice of award under S. 12(2) of the Land Acquisition Act, 1894 (as amended and adopted in the State of Karnataka) was served on the respondent-claimant. The respondent filed an application under Section 18(1) of the Act (as amended and adopted in the State of Karnataka) within 90 days as prescribed under Section 18(2) of the Act. But the Deputy Commissioner did not make a reference within 90 days as provided under Section 18(3)(a) of the Act. The respondent approached the civil court under Section 18(3)(b) of the Act after more than 10 years after receipt of the notice of the award. The respondent also filed an application for condonation of delay under Section 5 of the Limitation Act, 1963. The civil judge condoned the delay and directed the Deputy commissioner to make a reference in terms of Section 18 of the Act. In revision, the High Court refused to interfere on the ground that Section 5 of the Limitation Act had application and there was no reason to interfere with the condoning of the delay by the civil judge. Hence the appeal. The following questions arose before the Court:- (1) Whether on expiry of the period of three years and 90 days the right of the Deputy Commissioner to make a reference and that of the claimant to move the court get extinguished? (2) Whether Section 5 of the Limitation Act, 1963 can be invoked to an application under Section 18(3)(b) of the Land Acquisition Act, 1894 (as amended and adopted in the State of Karnataka)? =Allowing the appeal, the Court HELD: 1. The State Legislature by an amendment brought to Section 18 of the Land Acquisition Act, 1894 substituted the proviso to Section 18(2) by replacing the period of six weeks by a period of 90 days and making the starting point, the date of service of notice from the Deputy Commissioner under Section 12(2) of the Act. Section 18(3) was added directing that the Deputy Commissioner should make the reference to the court within a period of 90 days from the date of receipt of the application under Section 18(1) of the Act. If he failed to do so within the period of 90 days, the party was given a right under Section 18(3)(b) of the Act to apply to the court to direct the Deputy Commissioner to make the reference and the court was conferred the power to direct the Deputy Commissioner to make the reference within such period as may be fixed by the court. [543-d-f] 2. No time for applying to the court in terms of Section 18(3) of the Act 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. [544-d-e] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major, AIR (1994) SC 2227, Kerala State Electricity Board v. T.P. Kunhaliumma, [1976] 4 SCC 634 and Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal, [1969] 9 SCC 414, relied on. Special Land Acquisition Officer v. G.C. Paramraj, ILR 1991(2) Karnataka 1109, approved. 3. On a plain understanding of the Scheme of Section 18 of the Act as amended in Karnataka, it is apparent that a claimant has to make an application for reference within a period of 90 days of the service of notice under Section 12(2) of the Act. The Section casts a duty on the concerned officer to make a reference within 90 days of the receipt of the application for reference. The mere inaction on the part of the officer does not affect or straightaway extinguish the right of the claimant-applicant. The claimant is conferred the right to approach the court but he has to do so, within three years of his having made an application for reference in view of the general law of limitation. It is in this context that it has been held that the time available to a claimant for approaching the court for getting a reference made, is in all three years and 90 days from the date of the accrual of the cause of action. That accrual is when he makes an application for reference within the time prescribed by Section 18(2) of the Act. The controversy that is generated in these appeals is whether on the expiry of the said period of three years and 90 days, the right of the Deputy Commissioner to make a reference and that of the claimant to move the court get extinguished. It is to be remembered that the claimant had made his application for reference within the 90 days prescribed by the statute. Should a construction be adopted which will lead to a position that a claimant who has done his part, loses his right on the failure of the Deputy Commissioner to make the reference within 90 days of the receipt of the application for reference? That will depend on the statutory scheme. [545-g-h; 546-a-d] 4. 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 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, in spite of the peremptory nature of the duty cast on him, still fails to make the reference within the time stipulated by Section 18(3)(a). 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 to the Court which is to deal with the reference, is not available under the Central Act. [547-d-f] 5. Extinguishment of a right can be expressly provided for or it can arise by the implication from the statute. Section 18 of the Act as in Karnataka sets out a scheme. Having made an application for reference within time before the Deputy Commissioner, the claimant may lose his right by not enforcing the right available to him within the time prescribed by law. Section 18(3)(a) and Section 18(3)(b) read in harmony, casts an obligation on the claimant to enforce his claim within the period available for it. The scheme brings about a repose. It is based on a public policy that a right should not be allowed to remain a right indefinitely to be used against another at the will and pleasure of the holder of the right by approaching the court whenever he chooses to do so. When the right of the Deputy Commissioner to make the reference on the application of the claimant under Section 18( 1) of the Act stands extinguished on the expiry of 3 years and 90 days from the date of application for reference, and the right of the claimant to move the Court for compelling a reference also stands extinguished, the right itself loses its enforceability and thus comes to an end as a result. This is the scheme of Section 18 of the Act as adopted in the State of Karnataka. The High Court is, therefore, not correct in searching for a specific provision bringing about an extinguishment of the right to have a reference and on not finding it, postulating that the right would survive for ever. [551-e-h; 552-a-b] State of M.P. v. Bhai Lal AIR (1964) SC 1006, referred to. 6. Under the scheme .of Section 18 of the Act as in Karnataka the claimant loses his right to move the Court for reference on the expiry of three years and 90 days from the date of his making an application to the Deputy Commissioner under Section 18 (1) of the Act within the period fixed by Section 18(2) of the Act. This loss of right to move the court precludes him from seeking a remedy from the court in terms of Section 18 of the Act. This loss of right in the claimant puts an end to the right of the claimant to seek an enhancement of compensation. To say that the Deputy Commissioner can make a reference even after the right in that behalf is lost to the claimant would be incongruous. Once the right of the claimant to enforce his claim itself is lost on the scheme of Section 18 of the Act, there is no question of the Deputy Commissioner who had violated the mandate of Section 18(3)(a) of the Act, reviving the right of the claimant by making a reference at his sweet will and pleasure, whatever be the inducement or occasion for doing so. On a harmonious understanding of the scheme of the Act in the light of the general principle that even though a right may not be extinguished, the remedy may become barred, it would be appropriate to hold that on the expiry of three years and 90 days from the date of application for reference made within time under Section 18(1) of the Act the remedy of the claimant to have a reference gets extinguished and the right to have an enhancement becomes unenforceable. The Deputy Commissioner would not be entitled to revive a claim which has thus become unenforceable due to lapse of time or non-diligence on the part of the claimant. [552-b-f] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227, relied on. Assistant Commissioner v. Laxmi Bai ILR 1987 Karnataka 2132, approved. Hanamappa v. The Special Land Acquisition Officer ILR (1998) Karnataka 4071 (FB), overruled. 7. On the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant on the scheme of Section 18, the very right to have a claim for enhancement, would come to an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference. [553-f-g] 8. The right to have a reference enforced through Court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act, 1963 would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. [554-g-h; 555-a] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227, relied on. The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227 and Assistant Commissioner v. Laxmi Bai, ILR (1987) Karnataka 2132, approved. Sanjay R. Hegde, Anil K. Mishra, A. Rohen Singh and N. Ganpathy, (NP) for the Appellant. K. Radhakrishnan and Mrs. K. Sarada Devi for the Respondent No. 1566/2001.=2006 AIR 24 , 2005(4 )Suppl.SCR535 , 2005(8 )SCC709 , 2005(8 )SCALE768 , 2005(9 )JT89

CASE NO.:

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Appeal (civil) 2024 of 1999

PETITIONER:
STATE OF KARNATAKA

RESPONDENT:
LAXUMAN

DATE OF JUDGMENT: 25/10/2005

BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T
WITH

CIVIL APPEAL NOs. 4459/1999, 607-609/2000,
5547/2000, 1566/2000 and 1567/2001

 

P.K. BALASUBRAMANYAN, J.

All these appeals involve questions connected with the scope
and effect of Section 18 of the Land Acquisition Act as amended and
adopted in the State of Karnataka. The brief facts leading to the appeals are
as under.

CIVIL APPEAL NO.2024 OF 1999
The State challenges the order of the learned Single Judge of
the Karnataka High Court in Civil Revision Petition No.3682 of 1995 by
which the learned Judge dismissed the revision filed by the State challenging
the order of the Civil Judge, being the land acquisition court, purporting to
condone the delay in filing an application under Section 18(3)(b) of the Land
Acquisition Act, as amended in Karnataka. The notice of the award under
Section 12(2) of the Act was served on the claimant on 6.1.1984. Under
Section 18(2) of the Act, the claimant had 90 days from the date of service
of that notice, to seek a reference under that Section for enhancement of
compensation. The respondent claimed that an application under Section
18(1) of the Act seeking a reference was filed on 15.3.1984, within 90 days
of 6.1.1984, but the reference was not made by the Deputy Commissioner
within 90 days thereafter as enjoined by Section 18(3)(a) of the Act. The
claimant approached the civil court under Section 18(3)(b) of the Act only in
April 1994, more than 10 years after the receipt of the notice of the award.
The claimant also purported to file an application for condoning the delay in
making the application. This was in view of the fact that it had been held
that an application to the court under Section 18(3)(b) of the Act had to be
made within three years of the expiry of 90 days of the date of making an
application seeking a reference for enhancement of compensation. The
State opposed the application for condoning the delay on the ground that
Section 5 of the Limitation Act had no application and that, in any event, no
ground was made out for condoning the long delay of ten years in filing the
application. The civil judge proceeded to condone the delay and proceeded
to direct the Deputy Commissioner to make a reference in terms of Section
18 of the Act. In revision, the High Court refused to interfere on the ground
that Section 5 of the Limitation Act had application and there was no reason
to interfere with the condoning of the delay by the civil judge. The High
Court apparently without even a verification, merely accepted the evidence
of PW 1 that he had made an application within 90 days of the receipt of the
notice of the award under Section 12(2) of the Act. Feeling aggrieved by
that order, this appeal by special leave has been filed by the State.

CIVIL APPEAL NO.4459 OF 1999

In this case, the civil judge dismissed the application made
under Section 18(3)(b) of the Act by the respondent on the ground that the
application was barred by limitation. This order of the civil judge was
challenged in an appeal before the District Judge. It is not clear under what
provision such an appeal was filed, since under Section 54 of the Land
Acquisition Act as amended in Karnataka no appeal is provided to the
District Court from such an order of the civil judge and an appeal is
provided only against the award. The appellate court is seen to have held
that Section 5 of the Limitation Act was applicable and the learned civil
judge was in error in dismissing the application for compelling the reference
under Section 18(3)(b) of the Act without deciding the prayer for
condonation of the delay in filing that application. This order of the District
Judge was challenged in revision before the High Court. The High Court
held that Section 5 of the Limitation Act had application and declined to
interfere with the order of remand made by the Additional District Judge.
The High Court, thus, dismissed the revision filed by the State. Aggrieved
by this order, the State has come up with this appeal by special leave.

CIVIL APPEAL NOs.607-609 of 2000
In the first case it appears that the application for reference
under Section 18(1) of the Act itself was made only two years after the
award. Another seven years thereafter an application for compelling a
reference was made under Section 18(3)(b) of the Act. The civil judge
dismissed the application on the ground that it was out of time. Ten years
thereafter, the claimant filed a revision as C.R.P. No.1505 of 1997 before the
High Court. The High Court ignored the delay of ten years in filing the
revision in a somewhat cavalier manner and allowing the revision remitted
the reference application to the Land Acquisition Court for entertaining the
application under Section 18(3)(b) of the Act. The others were cases of a
similar nature. In all of them there was considerable delay in making the
application for reference and also delay in approaching the court. In these
revisions also, same lack of application of mind was exhibited by the High
Court and the revisions were allowed and the applications remitted. The
common order thus passed, is subjected to challenge in these appeals.

CIVIL APPEAL NO.5547 OF 2000

The State challenges the order of the High Court passed under
the same circumstances leading to the challenge in C.A. No.4459 of 1999.
Here the application for compelling a reference was dismissed on the ground
that it was out of time. The District court permitted the claimant to file an
application under Section 5 of the Limitation Act and directed its
consideration. The High Court refused to interfere.

CIVIL APPEAL NO.1567 OF 2001
In this appeal, the State of Karnataka challenges the order in
Civil Revision Petition No.956 of 1998. In this case also the civil judge
dismissed the application under Section 18(3)(b) of the Act in view of the
fact that it was not within time. An appeal was purported to be filed by the
claimant under Order 43 Rule 1 of the Code of Civil Procedure. The same
was allowed and the matter was remanded. Against the order of the District
Court, the revision was filed by the State challenging the competence of the
order. The High Court refused to interfere based on the same reasons it had
adopted in the order giving rise to Civil Appeal No.4459 of 1999. Feeling
aggrieved, the State has filed this appeal by special leave.

CIVIL APPEAL NO.1566 OF 2001

This appeal challenges the decision of the Full Bench of the
Karnataka High Court which by a majority held that even though the right to
the claimant to apply for compelling a reference under Section 18(3)(b) of
the Land Acquisition Act, as amended in the State of Karnataka may be lost,
the Deputy Commissioner could still make a reference even if it be after ten
years, if he so chose and that in such a situation, the court could also compel
a reference notwithstanding that the period for applying for reference has
expired. The State challenges the above view adopted by the Full Bench by
a majority and contends that the minority view holding that once the right to
the claimant to apply has come to end, the question of reference does not
arise, is the correct one and deserves to be accepted.

2. Section 18 of the Land Acquisition of the Act, 1894 (for short
“the Act”) as amended by Act 68 of 1984 provided that a person interested
in a land acquired and who has not accepted the award of compensation by
the Collector, could apply to the Collector for a reference of his claim within
six weeks of the date of the award if he was present at the time of making of
the award and within six weeks of the notice from the Collector under
Section 12(2) of the Act if he was not so present. In a case that may not be
covered by either of the above situations, the claimant has to make his
application within six months of the date of the award of the Collector. The
State Legislature by an amendment brought to Section 18 of the Act
substituted the proviso to Section 18(2) by replacing the period of six
weeks by a period of 90 days and making the starting point, the date of
service of notice from the Deputy Commissioner under Section 12(2) of the
Act. Sub-section (3) was added directing that the Deputy Commissioner
should make the reference to the court within a period of 90 days from the
date of receipt of the application under sub-section (1) of Section 18 of the
Act. If he failed to do so within the period of 90 days, the party was given a
right under Section 18(3)(b) of the Act to apply to the court to direct the
Deputy Commissioner to make the reference and the court was conferred the
power to direct the Deputy Commissioner to make the reference within such
period as may be fixed by the court. For the purpose of convenience it will
be better to quote the section as amended in the State of Karnataka:
“18. REFERENCE TO COURT(1) Any person
interested who has not accepted the award or amendment
thereof, may by written application to the Deputy
Commissioner require that the matter be referred by the Deputy
Commissioner for determination of the court, whether his
objection be to the measurement of the land, the amount of the
compensation, the person 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
within ninety days from the date of service of the notice from
the Deputy Commissioner under sub-section (2) of Section12.

3. (a) The Deputy Commissioner shall, within ninety
days from the date of receipt of an 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.”

The court to which the application was to be made was the
principal civil court of original jurisdiction.

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 The Addl. Spl. Land Acquisition Officer,
Bangalore vs. Thakoredas, Major and others (AIR 1994 SC 2227). It
was held:
“Admittedly, the cause of action for seeking a reference had
arisen 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 amended sub-section 3(a) of the Act,
the Deputy Commissioner shall, within 90 days from
September 1, 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 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 Municipal Corporation of Athani (AIR 1969
SC 1335), 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 vs. T.P. Kunhaliumma ( 1976 (4) SCC 634). 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 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 claim for enhanced compensation and for
ensuring an 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 action
and that reasonable time is reflected by the various articles of the Limitation
Act.

5. On a plain understanding of the scheme of Section 18 of the
Act as amended in Karnataka, it is apparent that a claimant has to make an
application for reference within a period of 90 days of the service of notice
under Section 12(2) of the Act. The section casts a duty on the concerned
officer to make a reference within 90 days of the receipt of the application
for reference. The mere inaction on the part of the officer does not affect or
straightaway extinguish, the right of the claimant-applicant. The claimant is
conferred the right to approach the court but he has to do so, within three
years of his having made an application for reference in view of the general
law of limitation. It is in this context that it has been held that the time
available to a claimant for approaching the court for getting a reference
made, is in all, three years and 90 days from the date of the accrual of the
cause of action. That accrual is when he makes an application for reference
within the time prescribed by Section 18(2) of the Act. The controversy that
is generated in these appeals is whether on the expiry of the said period of
three years and 90 days, the right of the Deputy Commissioner to make a
reference and that of the claimant to move the court, get extinguished. It is
to be remembered that the claimant had made his application for reference
within the 90 days prescribed by the statute. Should a construction be
adopted which will lead to a position that a claimant who has done his part,
loses his right on the failure of the Deputy Commissioner to make the
reference within 90 days of the receipt of the application for reference? That
will depend on the statutory scheme. If we construe the provision as
conferring on the litigant a further right to approach the court for getting the
matter referred, in case a Deputy Commissioner fails to make a reference
within 90 days of the receipt of the application, we have prima facie to say
that on his failure to approach the court and get the reference made, he
would lose his right to have a reference for enhancement of compensation.
Obviously, the mischief that was sought to be averted by the Legislature was
the causing of undue delay by Deputy Commissioners in making references
and the making of highly belated references, sometimes based on
applications clandestinely received long after the award itself had been
made. If we keep this object in view, the conclusion possible is that, if a
claimant does not get his claim referred to the court within three years of his
making the application before the Deputy Commissioner within the period
fixed and the accrual of a cause of action, his right to claim enhancement of
compensation would get extinguished. In the context of Section 28A of the
Act, there will be no irreparable prejudice caused to the claimant since he
can always make a claim for more based on any enhancement of award by a
court in any other reference arising out of the acquisition under the same
notification. The difference may be only in the matter of interest and the
like.

6. Section 18 of the Land Acquisition Act as amended in
Karnataka is self contained. The amendments substantially alter the
position as obtaining under Section 18 of the Central Act. Under the
Central Act, there is only an obligation on the claimant who is not
satisfied with the award of compensation and receives it under protest,
to make an application to the Collector for making a reference of his
claim for enhancement to the Court and to ensure that his application is
made within the time provided under sub-Section (2) of that Section.
In other words, once an application has been made for making a
reference for enhancement, no further right is conferred on him, except,
may be that he can approach the High Court in its writ jurisdiction,
seeking the issue of a writ of mandamus directing the Collector to
perform the duty imposed on him by Section 19 of the Act, by making
an appropriate reference. Even in such a case, it is open to the High
Court to decline to issue a writ as sought for by a claimant, when the
approach to the High Court is unduly delayed or the petitioner is guilty
of latches.

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 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, in spite
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 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 Addl. Spl.
Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others
(supra), the time for approaching the court under Section 18(3)(b) of the Act
stands crystalised. The application has to be made within 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.

9. This Court has also held that in proceedings under the Land
Acquisition Act before the authorities under that Act, Section 5 of the
Limitation Act has no application (See Officer on Special Duty (Land
Acquisition) and another vs. Shah Manilal Chandulal and others
(1996 (9) SCC 414). Therefore, Section 5 of the Limitation Act cannot
be resorted to while making an application under Section 18(1) of the
Act and the application has to be made within the period fixed by
Section 18(2) of the Act.

10. The Division Bench of the High Court in Special Land
Acquisition Officer vs. G.C. Paramraj (ILR 1991(2) Karnataka
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 Section 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 Section 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 Section
18(1) of the Act, had to be rejected in limini. The Division Bench laid
down the law thus:-
“It is a well recognized 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
Section 18, it is clear that in addition to the time limit of 90
days fixed in Section 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. 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 for ever. 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 Section
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.”

11. 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 vs. The Special
Land Acquisition Officer (ILR 1998 Karnataka 4071). That decision
is challenged in Civil Appeal No.1566 of 2001.

12. While one of the Judges agreed with the position exponded
by the Division Bench in G.C. Paramraj (supra), two of the learned
Judges proceeded to hold that the Division Bench in G.C. Paramraj
(supra) 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 Section 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 Section 18(1) of the Act within the time prescribed by Section
18(2) of the Act. The consequences flowing from the claimant not
seeking to enforce his right under Section 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 The Addl. Spl. Land Acquisition
Officer, Bangalore vs. Thakoredas, Major and others (supra) 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 Section
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’s case 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 of India, in State of M.P. vs. Bhai Lal
(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.

13. The majority, in our view, was not justified in mixing up
the position obtaining under Section 18 of the Central Act and the
position obtaining under Section 18 of the Act as amended in
Karnataka. The Court had to consider the scheme of Section 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 Section 18 of the Central Act. Section 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 Section 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 Section 18(3)(b) and the right conferred thereunder,
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 Section
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
Section 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.

14. Extinguishment of a right can be expressly provided for or
it can arise by the implication from the statute. Section 18 of the Act as
in Karnataka sets out a scheme. Having made an application for
reference within time before the Deputy Commissioner, the claimant
may lose his right by not enforcing the right available to him within the
time prescribed by law. Section 18(3)(a) and Section 18(3)(b) read in
harmony, casts an obligation on the claimant to enforce his claim within
the period available for it. The scheme brings about a repose. It is
based on a public policy that a right should not be allowed to remain a
right indefinitely to be used against another at the will and pleasure of
the holder of the right by approaching the court whenever he chooses to
do so. When the right of the Deputy Commissioner to make the
reference on the application of the claimant under Section 18(1) of the
Act stands extinguished on the expiry of 3 years and 90 days from the
date of application for reference, and the right of the claimant to move
the Court for compelling a reference also stands extinguished, the right
itself looses its enforceability and thus comes to an end as a result.
This is the scheme of Section 18 of the Act as adopted in the State of
Karnataka. The High Court is, therefore, not correct in searching for a
specific provision bringing about an extinguishment of the right to have
a reference and on not finding it, postulating that the right would
survive for ever.

15. Under the scheme of Section 18 of the Act as in Karnataka,
thus the claimant loses his right to move the Court for reference on the
expiry of three years and 90 days from the date of his making an
application to the Deputy Commissioner under Section 18 (1) of the
Act within the period fixed by Section 18(2) of the Act. This position
is now settled by the decision of this Court in The Addl. Spl. Land
Acquisition Officer, Bangalore vs. Thakoredas, Major and others
(supra). This loss of right to move the court precludes him from
seeking a remedy from the court in terms of Section 18 of the Act.
This loss of right in the claimant puts an end to the right of the claimant
to seek an enhancement of compensation. To say that the Deputy
Commissioner can make a reference even after the right in that behalf
is lost to the claimant, would be incongruous. Once the right of the
claimant to enforce his claim itself is lost on the scheme of Section 18
of the Act, there is no question of the Deputy Commissioner who had
violated the mandate of sub-Section 3(a) of Section 18 of the Act,
reviving the right of the claimant by making a reference at his sweet-
will and pleasure, whatever be the inducement or occasion for doing so.
On a harmonious understanding of the scheme of the Act in the light of
the general principle that even though a right may not be extinguished,
the remedy may become barred, it would be appropriate to hold that on
the expiry of three years and 90 days from the date of an application for
reference made within time under Section 18(1) of the Act, the remedy
of the claimant to have a reference gets extinguished and the right to
have an enhancement becomes unenforceable. The Deputy
Commissioner would not be entitled to revive a claim which has thus
become unenforceable due to lapse of time or non-diligence on the part
of the claimant.

16. The object of bringing in Section 18 in the amended form
in Karnataka has been highlighted in the decisions of that Court. The
object was to ensure that under-hand deals did not take place in the
office of the Deputy Commissioner and to prevent belated applications
and predated applications being received by his office and references
made, years after the acquisition is completed. The object was also to
ensure that all matters in connection with an acquisition were
completed within a reasonable time and claims for enhancement did not
hang like Damocles sword over the Government or over a company for
the benefit of which the acquisition is undertaken. Therefore, any
interpretation based on which the Deputy Commissioner is given the
power to revive a claim which has become unenforceable, would defeat
the very purpose for which Section 18 in the form in which it is, was
enacted in the State of Karnataka. The majority in the full bench was,
therefore, in error in thinking that the Deputy Commissioner could
make a reference at any time at his sweet-will and pleasure,
notwithstanding the fact that the right to move the court in that behalf
has been lost to the claimant himself.

17. The majority, in our view, has not properly appreciated the
position highlighted in the decision of that Court in Assistant
Commissioner Versus Laxmi Bai [I.L.R. 1987 Karnataka 2132) that
the power to make a reference under Section 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
that the cessation of the right of the party to apply to the court for
seeking a direction to the Deputy Commissioner to make a reference, is
also the point at which the power of the Deputy Commissioner to refer,
ceases. We think that this position logically emerges from the scheme
of Section 18 of the Act as adopted in Karnataka.

18. The language of Section 18 is plain as indicated by the
High Court. But the question is what is the scheme that has been
formulated by Section 18 of the Act vis-`-vis a claim for enhancement.
The scheme under Section 18 in Karnataka is a departure from the
Central Act and the scheme in Karnataka has to be understood, based
on the provisions in Section 18 as in Karnataka and the consequences
emerging from it. The question whether the time fixed under Section
18(3)(a) is mandatory or directory and whether time fixed for
performance of a duty is generally considered directory or mandatory
are all questions that may not have much relevance in the context of the
scheme of Section 18 of the Act. Whether mandatory or directory, on
the failure of the Deputy Commissioner to make a reference within 90
days from the date of an application under Section 18(1) of the Act, the
claimant is given the right to approach the Land Acquisition Court
seeking the compelling of a reference by the Deputy Commissioner.
Once the right to move for a compelled reference is lost to the claimant,
on the scheme of Section 18, the very right to have a claim for
enhancement, would come to an end in view of the fact that the remedy
in that behalf becomes barred. Thereafter, the Deputy Commissioner
cannot revive that right to a reference.

19. The High Court has made much of the fact that there is no
obligation on the Deputy Commissioner under Section 18 of the Act to
convey the information to the claimant about the making of the
reference or the declining of the application for reference. Once a
claimant has made his application for reference within the period
prescribed by Section 18 of the Act, and he does not get any notice
from the reference court regarding the reference made to that court for
enforcement of his claim for enhanced compensation, it is for the
claimant to move the concerned court for getting a reference made in
terms of Section 18 of the Act. If he gets intimation from the reference
court about the lodging of the reference, obviously, it becomes
unnecessary for him to approach the court for compelling a reference.
But in a case where he gets no intimation from the reference court
about the reference having been made, it is for him to invoke the
jurisdiction of the reference court under Section 18(3)(b) of the Act
within the time prescribed therefor by law. The extinguishment of the
remedy by way of moving the civil court is not dependent on receipt or
otherwise of an intimation from the Deputy Commissioner about the
fate of his application for reference.
20. The view we have taken, after all, does not deprive a
claimant who had protested, of his right to enhanced compensation in
view of the introduction of Section 28A of the Land Acquisition Act.
He could seek an enhancement based on any award that might have
been made within the time prescribed therefor in respect of land
covered by the same notification.

21. Then the question is, whether in the context of Section 18
of the Karnataka amendment, the decision of this Court in Thakoredas
(supra) and our discussion as above, Section 5 of the Limitation Act
could be invoked or would apply to an application under Section
18(3)(b) of the Act. This Court has held that Section 5 of the
Limitation Act has no application to proceedings before the Collector
or Deputy Commissioner here, while entertaining an application for
reference. We see no reason not to accept that position. Then arises
the question whether Section 5 could be invoked before the Land
Acquisition Court while making an application under Section 18(3)(b)
of the Act. We have held in agreement with the earlier Division Bench
of the Karnataka High Court, that the right to have a reference enforced
through court or through the Deputy Commissioner becomes
extinguished on the expiry of three years and 90 days from the date of
the application for reference made in time. Consistent with this
position it has necessarily to be held that Section 5 of the Limitation
Act would not be available since the consequence of not enforcing the
right to have a reference made on the scheme of Section 18 of the Act
as obtaining in Karnataka, is to put an end to the right to have a
reference at all. Since in that sense it is an extinguishment of the right,
the right cannot be revived by resorting to Section 5 of the Limitation
Act. We may incidentally notice that in Thakoredas (supra) this
Court rejected the application under Section 18(3)(b) of the Act which
was beyond time, though, of course, there was no specific discussion
on this aspect.

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 done in Thakoredas’s case (supra).

23. In the light of our discussion as above, we hold that the High
Court was in error in holding that the Deputy Commissioner could make a
reference even after the expiry of three years and 90 days from the date of
the application for reference made by the claimant within the time prescribed
by Section 18(2) of the Act. We uphold the view of the High Court in
Paramraj’s case (supra) that the remedy having become barred the right
could not thereafter be enforced. In that context, we hold that the claimant
while approaching the court under Section 18(3)(b) of the Act would not be
entitled to invoke Section 5 of the Limitation Act. In the light of these, we
allow these appeals and set aside the orders of the High Court. We dismiss
the applications for reference made by the claimants. We also uphold the
view of the Land Acquisition Court that a reference made beyond the expiry
of three years and 90 days from the date of application for reference by the
Deputy Commissioner is incompetent. We hold that the respondents are not
entitled to claim any enhancement by recourse to Section 18 of the Act. In
the circumstances we make no order as to costs.

 

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