IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR C.R.P.NO.216/2008 BETWEEN:
1. SRI. B.P. BASAVAREDDY S/O LATE BANDAGADDE PARVATHAPPA AGED ABOUT 55 YEARS R/AT JAGIRBUDDENAHALLI MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
2. SRI.B.P. SEETHARAMAREDDY S/O LATE BANDAGADDE PARVATHAPPA AGED ABOUT 52 YEARS R/AT JAGIRBUDDENAHALLI MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
3. SRI.B.P. THIMMAREDDY S/O LATE BANDAGADDE PARVATHAPPA AGED ABOUT 50 YEARS R/AT JAGIRBUDDENAHALLI MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
4. SMT. MALLAMMA W/O LATE B.P.KUMARAREDDY AGED ABOUT 62 YEARS R/AT JAGIRBUDDENAHALLI MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
5. SRI.L.R. UMESH KUMAR @ UMESHKUMAR S/O B.P. KUMARAREDDY AGED ABOUT 20 YEARS R/AT JAGIRBUDDENAHALLI MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
6. SMT. BHAGYAMMA W/O V.N. RAMAREDDY AGED ABOUT 46 YEARS R/AT VENKATAPURA VILLAGE MOLKALMURU TALUK CHITRADURGA DISTRICT-577 501.
7. SMT. VANAJAKSHI W/O G.L. MANJUNATHA AGED ABOUT 42 YEARS R/AT HIREMADURE CHALLAKERE TALUK CHITRADURGA DISTRICT-577 501.
8. SMT. SUMANGALA W/O MALLANNA AGED ABOUT 40 YEARS R/AT DAMBALA MUNDARGI TALUK GADAG DISTRICT-582 101.
... PETITIONERS (BY SRI. B.M. SIDDAPPA, ADVOCATE) AND:
1. THE LAND ACQUISITION OFFICER- CUM- ASSISTANT COMMISSIONER CHITRADURGA SUB-DIVISION CHITRADURGA-577 501.
2. SMT. NAGAMMA W/O PARVATHAPPA MAJOR R/AT J.B. HALLI MOLKALMURUR TALUK CHITRADURGA DISTRICT.
3. SMT. SHANTHAMMA W/O MAHANTHAPPA MAJOR R/AT CHIKKAGOWDANAHALLI CHITRADURGA DISTRICT.
(BY SMT. GEETHA, HCGP FOR R-1;
... RESPONDENTS R-2 DECEASED V/O DATED 20.11.2009 P-1 TO P-3 BEING LR’S OF DECEASED R-2) THIS PETITION IS FILED UNDER SECTION 115 OF THE CPC PRAYING THAT ORDER DATED 8.1.2008 PASSED IN LAC.NO.206/2002 ON THE FILE OF THE CIVIL JUDGE, (SR.DN.) CHALLAKERE, REJECTING THE PETITION FILED U/S 18 OF THE LAND ACQUSITION ACT, CLAIMING ENHANCEMENT OF COMPENSATION OF LAND ACQUIRED BY THE GOVERNMENT.
THIS CIVIL REVISION PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are challenging the order passed by the Civil Judge (Sr.Dn), Challakere in LAC No.206/2002 dated 08.01.2008 whereunder reference made by the Special Land Acquisition Officer on 01.01.1992 has been rejected as barred by limitation.
2. I have heard the arguments of Sri B M Siddappa, learned Advocate appearing for revision petitioners and Smt. Geetha, learned HCGP appearing for first respondent. Respondents-2 and 3 are served and unrepresented. Since petitioners-1 to 3 are L.Rs. of deceased respondent No.2, memo has been filed to treat the petitioners 1 to 3 as legal heirs of deceased respondent No.2. Memo is placed on record and accordingly they are ordered to be treated as L.Rs. of respondent No.2. Perused the judgment in question.
3. It is the contention of Sri B.M. Siddappa, learned Advocate appearing for revision petitioners that when there is no fault committed by the petitioners and when they were under the bonafide impression that based on their representation dated 03.09.1991 reference would be made by Special Land Acquisition Officer and said reference having made by the Assistant Commissioner cum Land Acquisition Officer on 01.01.1992, no fault can be laid at the doors of revision petitioners for delay and when substantial justice is pitted against technicalities it has to yield to substantial justice and technicalities will have to take a back seat or recede to the background. As such, he contends that order passed by the reference Court be set aside and matter be remanded back to the reference Court for being adjudicated on merits. He would also submit that under similar circumstances in CRP No.215/2008 revision petition came to be allowed by setting aside the order and remitted the matter back to the trial Court.
4. Per contra, Smt. Geetha, learned HCGP appearing for first respondent contends that in the event of there being a failure on the part of Deputy Commissioner/Collector to refer the claim to the reference Court, subsequent reference which is barred by limitation i.e., referred to beyond 90 days, cannot be held to be a valid reference and as such, she would rely upon Section 18(3)(b) of the Land Acquisition Act, 1894 and prays for dismissal of the petition.
5. Having heard the learned Advocates appearing for parties and on perusal of records, this Court is of the considered view that following dates which would have a bearing on the present case requires to be noticed and it reads as under:
Date Particulars 26.07.1990 Award under Section 12 of the Land Acquisition Act, 1894 came to be passed 06.07.1991 Notice under Section 12(2) of the Land Acquisition Act, 1894 sent to claimants 03.09.1991 Claimants submitted an application to the Assistant Commissioner-Land Acquisition Officer seeking reference to Civil Court 01.01.1992 Reference made by the Assistant Commissioner-Land Acquisition Officer to the Civil Court 6. Reading of Section 18(3)(a) of the Land Acquisition Act, 1894 (as amended in State of Karnataka) (hereinafter referred to as the ‘Act’ for brevity) would disclose that Deputy Commissioner shall within 90 days from the date of receipt of an application under sub-section (1) make a reference to Civil Court when such reference is sought for by the erstwhile land owner. If for any reason Deputy Commissioner does not make such reference to the Court, under Clause (b) of sub-section (3) of Section 18 of the Act, such land looser or claimant would get a right or cause of action to seek for a direction to the Land Acquisition Officer by filing a petition before the Civil Court within three years on expiry of 90 days from the date of submission of application. Unlike in the Central enactment where period fixed under Section 18(2)(a) and (b) of the Act being six weeks and six months, Karnataka amendment provides for 90 days and three years respectively.
7. Thus, combined reading of Section 18(3)(a) and (b) would disclose that if for any reason Deputy Commissioner-Special Land Acquisition Officer does not act upon the representation submitted by claimant/s to make a reference under clause (a) sub-section (3) of Section 18 of the Land Acquisition Act, claimants would get a right to seek for reference after completion of 90 days or on lapse of 90 days they would get a right to seek for reference and such right has to be exercised by claimant/s within a period of three (3) years. Thus, Section 18(3) of the Land Acquisition Act (Karnataka Amendment) would clearly indicate that it has provided a succor to the claimants namely, land losers a second alternate to approach the Civil Court, where the Deputy Commissioner or Land Acquisition Officer, as the case may be, does not perform the statutory duty of sending a request to the reference Court by way of reference.
8. Hon’ble Apex Court in the case of STATE OF KARNATAKA vs LAXUMAN reported in (2005) 8 SCC 709 has examined the very same provision and has held that limitation of period of three years and 90 days would start from the date of accrual of cause of action and on expiry of three years and 90 days, prayer to approach the Court under Section 18(3)(b) of the Act gets extinguished. It has also been held that Deputy Commissioner has no power to revive a claim which has become un-enforceable after expiry of 90 days and it has been held that delay cannot be condoned by invoking Section 5 of the Limitation Act. It has been held by the Apex Court in Laxuman’s case as under:
“19. 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.
20. 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.”
9. In the above referred case there is also reference to the judgment of Division Bench of this Court rendered in the case of ASSISTANT COMMISSIONER vs. LAKSHMI BAI reported in AIR 1988 Kar. 11. In the light of said judgment, it is the contention of Sri.B.M.Siddappa, learned counsel appearing for petitioners that reference ought not have been rejected by Civil Court as being time barred.
Hence, he prays for setting aside the order passed by the reference Court and to allow the petition.
10. In the light of contention raised by the learned counsel appearing for petitioners and in the background of Section 18(3)(a) and (b) of the Act when the facts on hand are re-examined it would disclose that an award came to be passed on 26.07.1990 in favour of claimants. Notice under Section 12(2) of the Land Acquisition Act, 1894, came to be issued to claimants on 06.07.1991. On 03.09.1991 claimants have submitted an application to the Assistant Commissioner cum Land Acquisition Officer seeking reference to Civil Court, which is in consonance with proviso to sub- section (2) of Section 18 of the Act namely, it is within 90 days of notice received under Section 12(2) of the Act. Reference came to be made by the Assistant Commissioner cum Land Acquisition Officer to the Civil Court on 01.01.1992, which was beyond 90 days from the date of receipt of application and as such, reference Court has arrived at a conclusion that reference is barred by limitation under Section 18(3)(a) of the Act namely, Special Land Acquisition Officer has forwarded the reference after expiry of 90 days period as prescribed under Section 18(3)(a) of the Act.
11. The Division Bench in LAKSHMI BAI’s case referred to herein supra had examine and similar issue namely, a reference which was made beyond the period of 90 days, though application filed by claimants seeking reference was well within time would be barred by limitation for being examined on merits or not. It came to be held that statutory obligation to make a reference would continue and remain subsisting till the corresponding right on the part of the person interested to seek and compel a reference subsists. In other words, if such reference is made within 3 years and 90 days it has been held to be a valid reference. The view expressed by the Division Bench reads as under:
“11. We are, therefore, with great respect to the learned Single Judge, unable to bring ourselves to agree with the view taken of the matter in Uppara Basappa’s case (ILR 1986 Kant 2102). Statutory obligation to make a reference would continue and remain subsisting till the corresponding right on the part of the person interested to seek and compel a reference subsists. Swami, J. in Gwalior Rayon’s case (AIR 1982 Kant 347) has held that this obligation continues till the expiry of the period of three years which is held to be the period of limitation for making an application under S.18(3)(b). It appears to us that the view taken by Swami, J. should be preferred to the one taken in Uppara Basappa’s case. If we prefer the view in Uppara Basappa’s case underserved injustice and hardship would be occasioned to the parties. We should, we think, avoid such a construction of the provisions. Indeed Supreme Court said AIR 1986 SC 137 (P. 66).
American Home Products v. MAE, Labs:
“……..It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice or absurd inconvenience or anomaly….”
Sir. Kothavale urged that the right of the person interested to compel a reference should not be held to come to an end even after the expiry of 3 years and 90 days and that a reference made by the L.A.O even thereafter would be a valid one. It is unnecessary to go into and answer that question here. The reference in the present case is within the period of 3 years from the expiry of 90 days. We hold the reference to be valid. As long as the Gwalior Rayon’s case (AIR 1982 Kant 347) continues to hold the field Sri.Kothavale’s proposition will not be of assistance.”
(emphasis supplied) 12. In the light of dicta laid down by the Division Bench and Apex Court in LAXUMAN’S case referred to herein supra opining that cause of action to seek for reference would continue to subsist till the expiry of 3 years 90 days, reference in question which has been made by the Assistant Commissioner on 01.01.1992 after receipt of application by claimants on 03.09.1991 cannot be held as time barred or in other words, it is held to be well within time punishable under Section 18(3)(b).
13. In that view of the matter, I proceed to pass the following:
ORDER (i) Civil Revision Petition is hereby allowed.
(ii) Order dated 08.01.2008 passed by Civil Judge (Sr. Dn.), Challakere in LAC No.206/2002, is hereby set aside and reference is restored to the file of said Court for being adjudicated and disposed of on merits and in accordance with law.
(iii) No costs.
SD/- JUDGE DR