IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.94 OF 2014 (LA) BETWEEN:
1. SRI. BASAPPA S/O SIDDALINGAPPA AGED ABOUT 62 YEARS R/A OF ALLENAHALLI D.KUNNALA (POST) KADABA (HOBLI) GUBBI (TALUK) TUMKUR DISTRICT, PIN CODE – 572 219.
SINCE DECEASED BY HIS L.Rs. 1 (a). SRI.SHIVAKUMAR AGED 48 YEARS SON OF LATE BASAPPA AGED ABOUT 48 YEARS.
(b).SRI. SIDDARAMAIAH AGED 40 YEARS SON OF LATE BASAPPA.
BOTH ARE RESIDING AT ALLENAHALLI DODDAKUNNALA (POST) KADABA (HOBLI), GUBBI (TALUK) TUMAKURU (DISTRICT) PIN – 572 219.
2. NANJEGOWDA, S/O.LATE SIDDALINGAPPA, AGED ABOUT 58 YEARS, R/AT ALLENAHALLI, D.KUNNALA (POST), TUMKUR (DIST.), PIN CODE-572 219.
…PETITIONERS (BY SHRI. N.JAGADISH BALIGA, ADVOCATE FOR IMPLEADING APPLICANTS PETITIONERS 1(a & b) ) AND:
1. SPECIAL LAND ACQUISITION OFFICER HEMAVATHI NALA TUMAKURU – 572 219.
2. CHIEF OFFICER, HEMAVATHI NALA TUMAKURU – 572 219.
(BY SHRI. SANDESH KUMAR.M, HCGP) …RESPONDENTS THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC AGAINST THE JUDGMENT & ORDER DATED: 30.08.2013 PASSED IN LAC.MISC.NO.10/2010 ON THE FILE OF SENIOR CIVIL JUDGE, AT GUBBI, DISMISSING THE PETITIONER FILED UNDER SECTION 18 (1) (b) OF KARNATAKA LAND ACQUISISTION ACT AND ETC.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This revision petition is directed against the impugned Judgment and Award dated 30th August 2013 passed by the Senior Civil Judge and JMFC at Gubbi in LAC (M)No.10/2010 whereby, the petition filed by the petitioners herein was dismissed as barred by time.
2. I have heard the learned counsel appearing on behalf of the petitioners as well as learned High Court Government Pleader for the respondents.
3. A few undisputed facts giving rise to the above petition are as follows:
Land bearing Survey No.14/4 having been acquired, award notice under Section 12(2) was issued by the respondents to the petitioners on 10.03.2008. On 03.10.2008, the petitioners filed an application/protest petition under Section 18(1) of the Land Acquisition (Karnataka Amendment) Act, 1894 (for short ‘the said Act’) seeking reference to the Civil Court for enhancement of compensation. The Respondent No.1 did not refer the matter to the Civil Court under Section 18(1) of the said Act. Subsequently, the petitioners filed an application dated 27.08.2010 in LAC (M) No.10/2010 before the Court below under Section 18(3)(b) of the said Act for proper adjudication and enhancement of the compensation amount. Along with the petition, the petitioners filed an application for condonation of delay in filing the petition.
4. In the impugned judgment and order, the Court below framed the following points for consideration:
1) Whether the petitioners have made out any ground for condonation of delay in preferring the present petition?
2) Whether the petitioners have made out any ground to call for the records from the first respondent?
3) What order?
5. The petitioner No.2 examined himself as P.W.1 and produced documentary evidence at Exs.P.1 to P.3.
The respondents did not choose to adduce any oral or documentary evidence.
6. By the impugned judgment and order, the Court below answered Issue No.1 in the negative, thereby coming to the conclusion that the petitioners have not made out any ground for condonation of delay of 22 months in filing the petition and that the application/protest petition filed by the petitioners under Section 18(1) of the said Act was filed beyond the stipulated period of 90 days as fixed by Section 18(2) of the said Act and consequently, the delay in filing the petition before the Court below could not be condoned. Accordingly, without examining the merits of the claim of the petitioners, the Court below proceeded to dismiss the petition as barred by limitation.
7. The learned counsel for the petitioners submits that the Court below committed an error in coming to the conclusion that the delay in filing the petition in the Court below had not been satisfactorily explained by the petitioners. He invited my attention to the material on record including the unimpeachable, uncontroverted and unchallenged evidence of P.W.1 inasmuch as the respondents neither filed objections to the petition nor did they choose to contest the same either by cross-examining P.W.1 or by adducing any evidence. It is his submission that the Court below ought to have viewed the claim of the petitioner liberally and that there existed sufficient cause for condoning the delay in filing the petition.
8. The learned counsel for the petitioners further submitted that along with the award notice dated 10.03.2008, copy of the award was not enclosed as mandatorily required under Section 12(2) of the said Act and consequently, limitation would not begin to run for the purpose of filing an application/protest petition under Section 18(1) in the absence of the copy of the award being enclosed along with the award notice. He placed reliance on judgment of the Hon’ble Supreme Court in the case of PREMJI NATHU vs. STATE OF GUJARAT AND ANOTHER (2012(5) SCC 250) and invited my attention to Paragraphs 16 and 21 in this regard.
16. In Harish Chandra Raj Singh v. Land Acquisition Officer [AIR 1961 SC 1500] , this Court was called upon to decide whether the expression “date of award” is to be interpreted with reference to the time when the award is signed by the Collector or from the date the affected party comes to know about the same and held as under: (AIR pp. 1503-04, paras 5-6) “5. … Therefore, if the award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words ‘the date of the award’ occurring in the relevant section would not be appropriate.
6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression ‘the date of the award’ used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words ‘from the date of the Collector's award’ used in the proviso to Section 18 in a literal or mechanical way.”
21.A careful reading of the averments contained in Para 2 of the application filed by the appellant under Section 18(1) shows that the notice issued by the Collector under Section 12(2) was served upon him on 22-2- 1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 8-4-1985 for making a reference to the Court. This implies that the copy of the award had not been sent to the appellant along with the notice and without that he could not have effectively made an application for seeking reference.
9. He also invites my attention to the judgments of this Court in the case of USMANSAB vs. THE LAND ACQUISITION OFFICER CUM ASSISTANT COMMISSIONER KOPPAL AND ANOTHER (ILR 2007 KAR 1559) in order to contend that the petitioners were entitled to a period of 03 years 90 days from the date he made an application from 03.10.2008 on which day, he filed an application/protest petition under Section 18(1) of the said Act. It is, therefore, contended that having regard to the undisputed fact that the application/protest petition under Section 18(1) was filed on 03.10.2008, the petition under Section 18(3)(b) filed by the petitioners on 27.08.2010 well within the stipulated period of 03 years 90 days and was not barred by limitation as wrongly held by the Court below.
10. It is also contended that the judgment of the Apex Court in the case of STATE OF KARNATAKA v/s.LAXUMAN (2005(8) SCC 709) has been considered and explained in the aforesaid judgment of this Court in USMAN SAB’s case referred to supra and as such, the Court below committed an error in rejecting the petition filed by the petitioners.
11. Learned High Court Government Pleader appearing for the respondents supported the impugned order and relied upon the judgment of the Apex Court in LAXUMAN’s case supra.
12. I have given my anxious consideration to the rival contentions.
13. As rightly contended by the petitioners, it is an undisputed fact that the respondents did not choose to contest the petition filed by the petitioners in the Court below. The respondents did not file any statement of objections to the petition. The respondents also did not choose to cross-examine P.W.1 nor did they adduce any oral or documentary evidence. As stated earlier, along with the petition, in addition to filing an application under Section 5 of the Limitation Act seeking condonation of delay, the petitioners also adduced both oral and documentary evidence in support of his claim. The unimpeached, uncontroverted and unchallenged pleadings and evidence of the petitioners would clearly establish that the petitioners had made out sufficient cause and ground to condone the delay in filing the petition in the Court below. The Court below has committed a grave and serious error of law and jurisdiction in coming to the conclusion that the delay in filing the petition has not been satisfactorily explained by the petitioners. Having regard to the material on record, the approach of the Tribunal in not adopting a liberal and justice-oriented approach is clearly perverse, illegal and contrary to the material on record. In so far as the contention that though the award notice under Section 12(2) of the Land Acquisition Act was issued on 10.03.2008, but the same was not enclosed with a copy of the award is concerned, the material on record also establishes that the respondents had not placed any material to establish that a copy of the award was furnished/supplied to the petitioners as required under Section 12(2) of the said Act as held by the Hon’ble Supreme Court in the case of PREMJI NATHU supra. The Apex Court has clearly held that in the absence of anything to show that the award was enclosed along with an award notice under Section 12(2) of the said Act, it could not be said that there was proper and valid service of the award notice so as to make limitation run against the petitioners. Under these circumstances, the Court below committed an error in failing to consider and appreciate the undisputed material on record which clearly established that there was no proper, valid or effective service of award notice on the petitioners and consequently, the limitation for filing an application under Section 18(1) of the Act did not begin to run as against the petitioners.
14. Learned counsel is also right in contending that the Court below has come to the erroneous conclusion that the application filed by the petitioners under Section 183(b) of the Act is barred by limitation. This aspect of the matter is fully covered by the judgment of this Court in USMAN SAB’s case supra wherein the judgment of the Hon’ble Supreme Court in LAXUMAN’s case is relied upon by this Court. Undisputedly, the award notice having been issued on 01.03.2008 and the protest petition having been filed by the petitioners on 03.10.2008, the application under Section 18(3)(b) filed on 27.08.2010 within a period of 03 years 90 days was well within limitation. Viewed from this angle also, the Court below committed an error in coming to the conclusion that the petition was barred by limitation.
15. In view of the aforesaid discussion, I am of the considered opinion that the impugned judgment and order passed by the Court below rejecting the petition as barred by limitation is not sustainable and the same requires interference at the hands of this Court.
16. Accordingly, I pass the following order:
i) The petition is hereby allowed;
ii) The impugned judgment and order dated 30.08.2013 passed by the Senior Civil Judge and JMFC at Gubbi in LAC (M) No.10/2010 is hereby set aside;
iii) The petition in L.A.C (M) No.10/2010 stands restored to the file of the Court below.
iv) The matter is remitted back to the Court below to decide the petition on merits on all the aspects of the matter except the aspect of limitation which stands concluded and decided in favour of the petitioners by virtue of this order.
iv) All rival contentions between the parties except the aspect of limitation which stands decided and concluded by virtue of this order, are hereby left open.
v) Parties are free to adduce both oral and documentary evidence of their respective sides.
vi) Both parties undertake to appear before the Court below on 16.12.2019 without further notice from the Court below.
In view of the fact that the parties are illiterate and senior citizens coupled with the fact that the petition is of the year 2010, the Court below is directed to dispose of the matter expeditiously and in any event, not later than six months from 16.12.2019. Ordered accordingly. No costs.
Sd/-
JUDGE bnv*