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TaxTMI 
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TaxTMI 
2005 (10) TMI 586
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....ction 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....
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.... 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 Limitatio....
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....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, t....
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....ribed 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, (1969)IILLJ651SC , 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, [1977]1SCR996 . It may be seen that under the Central Act sans the Karnataka amendment there was no right to approach the principal civil court of origi....
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....t 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 ....
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....s 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 v. Thakoredas, Major and Ors. (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 t....
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....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....
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....oner 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 v. Thakoredas, Major and Ors. (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 i....
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....eference 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....
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.... 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 pos....
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....arding 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 therefore 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 therefore in respect of land covered by the same notification. 21....