IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA WRIT PETITION NO.50787/2018 (LA - RES) AND WRIT PETITION NOs.7731-7741/2019 Between:
1. B.Bharath, S/o late Boraiah, Aged about 66 years, 2. Boramma, W/o late Chikkaputtaiah, Aged about 85 years, 3. Gangadharaiah, S/o late Chikkaputtaiah, Aged about 59 years, 4. Shivaramu, S/o late Chikkaputtaiah, Aged about 55 years, 5. Ravi, S/o late Chikkaputtaiah, Aged about 57 years, 6. Manju, S/o late Chikkaputtaiah, Aged about 53 years, 7. Boramma, W/o late Jogaiah, Aged about 95 years, 8. J.Guruswamy, S/o late Jogaiah, Aged about 45 years, 9. K.J.Somashekar, S/o late Jogaiah, Aged about 40 years, 10. Siddaramaiah, S/o late Kempaboraiah, Aged about 59 years, 11. K.Devaraju, S/o late Kempaboraiah, Aged about 57 years, 12. K.Swamynath, S/o late Kempaboraiah, Aged about 55 years, All are R/o S.I.Kodhalli Village, Keregodu Hobli, Mandya – Tq, Mandya District – 571 401. …Petitioners (By Sri.Raja L, Adv.,) And:
1. State of Karnataka, Represented by Principal Secretary, Project Department, Karnataka State Highway Authority, Vidhana Soudha, Bengaluru – 01.
2. Assistant Commissioner (Land Acquisition), Bengaluru Sub Division, Project Department, Karnataka State Highway Project, Crescent Tower, By the side of Mallige Hospital, Crescent Road, Bengaluru – 560 001. ...Respondents (By Sri.Dildar Shiralli, HCGP for R1& R2) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to direct the 2nd Respondent to refer the matter K.S.H.A. Project/YAGH/SA/LA/SR-25/2015-16/57-C [2nd Milestone] Additional – II to Jurisdictional Civil Judge (Sr.Dn) Court: at: Mandya, by quashing the endorsement dated 30.05.2018 vide Annexure – E, E1 and E2 respectively.
These petitions coming on for Preliminary Hearing this day, the Court made the following:
ORDER Heard.
Issue notice to the respondents.
Learned High Court Government Pleader accepts notice for respondents 1 and 2.
2. Though these writ petitions are listed for preliminary hearing, with the consent of the learned counsel for both sides, they are heard finally.
3. Petitioners have assailed endorsements dated 30.05.2018 which are at Annexures – E, E1 and E2 issued by the second respondent – Assistant Commissioner (Land Acquisition), Bengaluru sub- division, Project department, Karnataka State Highway Project. By the said endorsements it has been stated that the reference has been sought post six weeks after the award and therefore the same being belated, it is rejected.
4. Briefly stated, the facts are :
The petitioners claim to be the owners of land bearing survey number 22 measuring 4 ½ guntas situated at S.I.Kodihalli, out of which the respondents have acquired 1.02 guntas of land for the purpose of widening of the State Highway - Kowdle to Mandya. An award was passed for Rs.2,62,732/- on 10.05.2018. Not being satisfied with the award, petitioners made an application under Section 35(2) of the Karnataka Highways Act, 1964 (hereinafter referred to as the `Act’ for the sake of brevity), seeking reference to the Civil Court, for the purpose of enhancement of compensation. The said application was accompanied by an application filed under Section 5 of the Limitation Act, 1963. Annexures - A to D are copies of the applications filed by the petitioners. The said applications have been rejected by Annexures – E, E1 and E2 which are assailed in these writ petitions.
5. I have heard learned counsel for the petitioners and learned High Court Government Pleader for the respondents and perused the material on record.
6. Petitioners’ counsel drew my attention to Section 35 of the Act to contend that any person aggrieved by the award of the Highway Authority or the officer authorized under Section 28 may, by written application to the Highway Authority or such officer, require that the matter be referred to the Court of the Civil Judge within the limits of whose jurisdiction the land in relation to which the award is made is situate; and any such application shall be made within six weeks from the date of award and shall be in such form as may be prescribed. However, under sub-Section (3) of Section 35 of the Act, sections 5, 12 and 14 of the Limitation Act, 1963, apply while computing the period of six weeks for seeking reference under sub-Section (2) of Section 35 of the Act.
7. Learned counsel for the petitioners submits that an application was filed under Section 5 of the Limitation Act seeking condonation of delay, but the second respondent – authority has not considered the said application and has simply rejected the application filed under Section 35(1) seeking reference. He submits that the endorsements issued may be quashed and the matters may be remanded to the second respondent for fresh consideration in the light of Section 35(3) of the Act.
8. Per contra, learned High Court Government Pleader would fairly submit that the impugned endorsements do not refer to sub-Section (3) of Section 35 of the Act and therefore appropriate orders may be made in the matters.
9. The detailed narration of facts and contentions above, would not call for reiteration except referring to Section 35 of the Act, which reads as under :
“35. Reference against the award of Highway Authority or authorized officer under section 28: (1) Any person aggrieved by the award of the Highway Authority or the officer authorized under section 28 may, by written application to the Highway Authority or such officer, require that the matter be referred to the Court of the Civil Judge within the limits of whose jurisdiction the land in relation to which the award is made is situate.
(2) Any such application shall be made within six weeks from the date of award, and shall be in such form as may be prescribed.
(3) The provisions of sections 5, 12 and 14 of the Indian Limitation Act, 1963, shall apply to the computation of the time fixed for reference under sub-section (2).
(4) The Highway Authority or the officer authorized shall make the reference in such manner as may be prescribed.”
10. However under sub-Section (3) of Section 35 of the Act, Sections 5, 12 and 14 of the Limitation Act, 1963 have been expressly adverted to. Section 5 of the Limitation Act is a provision enabling a party to seek condonation of delay in the event an application or a proceeding is not filed within the prescribed period of limitation. If such an application is made - as in the instant case it has been so made by the petitioners herein - a duty is cast on the second respondent – authority to consider the said application in accordance with law and if there is a sufficient reason to condone the delay in filing the application under Section 35(1) of the Act. In the instant case, the impugned endorsement merely refers to Section 35(2) of the Act. There is no reference to Section 35(3) of the Act. Consequently, the second respondent has not applied his mind to the aspect of condonation of delay in filing the application under Section 35(1) of the Act for the purpose of seeking enhancement of compensation. On that short ground alone, the endorsements at Annexures - E, E1 and E.2 are quashed. The matter is remanded to the second respondent – authority to reconsider the applications filed by the petitioners herein which are at Annexures - A to D, in accordance with law and with special reference to sub-Section (3) of Section 35 of the Act and Section 5 of the Limitation Act, 1963. The said consideration shall be made in an expeditious manner.
With the aforesaid observations and directions the writ petitions are disposed off.
Sd/- JUDGE mgn/-