2005 Supreme(SC) 1399

2005(8) Supreme 49
Supreme Court of India
(From Karnataka High Court)
R.C. Lahoti, CJI., G.P. Mathur and P.K. Balasubramanyan, JJ.
State of Karnataka —Appellant
versus
Laxuman —Respondent
Civil Appeal No. 2024 of 1999
With
Civil Appeal Nos. 4459/1999, 607-609/2000, 5547/2000, 1566/2001 and 1567/2001
Decided on 25-10-2005
Counsel for the Parties :
For the Appellant : Sanjay R. Hegde, Anil K. Mishra, A. Rohen Singh, Advocates, N. Ganpathy, Advocate (NP).
For the Respondent No. 1566/2001 : K. Radhakrishnan, Sr. Advocate and Mrs. K. Sarada Devi, Advocate.

Important point
Under the Scheme of Section 18 of Land Acquisition Act (as amended in Karnataka) claimant loses his right to move the Court for reference on expiry of three years and 90 days from the date of his making an application to the Deputy Commissioner u/s 18(1) of the Act.

Headnote:Land Acquisition Act, 1894—Section 18 (As amended in Karnataka) —Limitation Act, 1963—Section 5—Reference—Limitation for making reference—Claimant has to make an application for reference within 90 days of service of notice of award u/s 12(2) of the Act—Duty of concerned officer to make a reference within 90 days of receipt of reference application—In case of in action on part of officer, claimant has right to approach Court within 3 years of his having made an application for reference in view of general law of limitation—Whether on expiry of said period of three years and 90 days the right of Deputy Commissioner to make the reference and that of the claimant to move the Court would get extinguished? Yes—Whether Section 5 of Limitation Act could be invoked before Land Acquisition Court while making application u/s 18(3)(b) of the Act? No.

       Held : 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. (Para 5)

       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. 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. (Paras 8 and 9)

       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. (Para 13)

       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 since it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. (Para 21)