STATE OF KARNATAKA versus LAXUMAN

3. As can be seen, no time for applying to the court in terms of sub- section (3) is fixed by the statute. But since the application is to the court, though under a special enactment, Article 137, the residuary article\of the E Limitation Act, 1963, would be attracted and the application has to be made within three years of the application· for making a reference or the expiry of 90 days after the application. The position is settled by the decision of this Court in The Addi. Sp/. Land Acquisition Officer, Bangalore v. Thakoredas, Major and Ors., AIR (1994) SC 2227. It was held: "Admittedly, the cause of action for seeking a reference had arisen on the date of service of the award under Section 12(2) of the Act. Within 90 days from the date of the service of notice, the respondents made the application requesting the Deputy Commissioner to refer the cases to the Civil Court under Section 18. Under the amended sub-section 3(a) of the Act, the Deputy Commissioner shall, within 90 days from September 1, 1970 make reference under Section 18 to the Civil Court which he failed to do . Consequently, by operation of sub-section 3(b) with the expiry of the aforestated 90 days, the cause of action had accrued to the respondents to make an application to the Civil Court with a prayer to direct the Deputy Commissioner to make a reference. There is no period of limitation prescribed in sub-section 3(b) to make STATE OF KARNATAKA v. LAXUMAN [BALASUBRAMANYAN,J.] 545 tpat application but it should be done within limitation prescribed by A 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 :ittracted. 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, B 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 AIR (1969) SC 1335, C which has stood overruled, the order of the High Court is unsustainable." This position is also supported by the reasoning in Kera/a State Electricity Board v. T.P. Kunhaliumma, [1976) 4 SCC 634. It may be seen that under the Central Act sans the Karnataka amendment there was no right to approach D the principal civil court of original jurisdiction to compel a reference and no time limit was also fixed for making such an approach. Allihat was required of a claimant was to make an application for reference within six weeks of the award or the notice of the award, as the case may be. But obviously the State Legislature thought it necessary to provide a time frame for the claimant to E make his claim for enhanced compensation and for ensuring an expeditious disposal of the application for reference by the authority under the Act fixing a time within which he is to act and conferring an additional right on the claimant to approach the civil court on satisfying the condition precedent of having made an application for reference withi.n the time prescribed.

4. A statute can, even while conferring a right, provide also for a repose. The Limitation Act is not an equitable piece of legislation but is a statute of repose. The right undoubtedly available to a litigant becomes unenforceable if the litigant does not approach the court within the time prescribed. It is in this context that it has been said that the law is for the diligent. The law expects a litigant to seek the enforcement of a right available to him within G a reasonable. time of the arising of the cause of action and that reasonable time is reflected by the various articles of the Limitation Act.

5. 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 H A 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 B having made an application for reference in view of the general law oflimitation. 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 C 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 D 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 E 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 F 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 G 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.

6. Section 18 of the Land Acquisition Act as amended in Karnataka is STA TE OF KARNA TAKA v. LAXUMAN [BALASUBRAMANY AN, J.] 547 self contained. The amendments substantially alter the position as obtaining A under Section 18 of the Central Act. Under the Central Act, there is only an obligation on the claimant who is not satisfied with the award of compensation and receives it under protest, to make an application to the Collector for making a reference of his claim for enhancement to the Court and to ensure that his application is made within the time provided under sub-Section (2) B of that Section. In other words, once an application has been made for making a reference for enhancement, no further right is conferred on him, except, may be that he can approach the High Court in its writ jurisdiction, seeking the issue of a writ of mandamus directing the Collector to perform the duty imposed on him by Section 19 of the Act, by making an appropriate reference. Even in such a case, it is open to the High Court to decline to issue a writ C as sought for by a claimant, when the approach to the High Court is unduly delayed or the petitioner is guilty of latches.

7. Under the Kamataka scheme, the period for making an application for reference has been enhanced from six weeks to 90 days and the terminus a quo is the receipt of notice from the Collector under Section 12(2) of the Act. D The Section proceeds further and imposes a duty on the Deputy Commissioner to make the reference to the Court within 90 days from the date of receipt of the application under Section 18( I) of the Act. Though it may not be conclusive what one has to notice is that expression used is "shall" and not "may". The scheme does contemplate a situation where the Deputy Commissioner, in E 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 referenci: 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 F 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 Addi. Sp/. 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. G 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 H · A approaching the court under Section 18(3)(b) of the Act gets extinguished on the expiry of the period limited therefor.

9. 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 B Acquisition) and Anr. v. Shah Manila/ Chandulal and Ors., [1996] 9 SCC 414. Therefore, Section 5 of the Limitation Act cannot be resorted to while making an application under Section 18( I) of the Act and the application has to be made within the period fi~d by Section 18(2) of the Act.

10. The Division Bench of the High Court in Special Land Acquisition C Officer v. Q.C. Paramraj, !LR (1991) 2 Karnataka 1109 held that the reference court has not only the power, but also the duty, to consider whether the reference was time barred and therefore invalid. It also held that Article. 137 of the Limitation Act applies to an application under Section 18(3)(b) of the Act, a position approved by this Court. Then the Division Bench held that D the power to make a reference under Section 18(3) subsists till the right of the party to make an application before the court seeking a direction to the Deputy Commissioner to make a reference exists and from this it followed that there is no power in the Deputy Commissioner to make a reference thereafter and if such a reference is made by the Deputy Commissioner, it is invalid. An application to the court not made within 3 years after the expiry of 90 days E from the date of the application under Section 18(1) of the Act, had to be rejected in limini. The Division Bench laid down the law thus:- "It is a well recognized rule of construction that in order to ascertain the true meaning of a provision the intention of the Legislature, as ascertainable from the language of the provision is the safe guide. From the amendment of Section 18, it is clear that in addition to the time limit of 90 days fixed in Section 18, the Legislature intended to create a duty in the Deputy Commissioner to make a Reference within 90 days and further if within the said period the Deputy Commissioner/ Land Acquisition Officer failed to make a Reference, to confer a right on the party to make an application before the Court seeking a direction to the Deputy 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 STATE OF KARNATAKA v. LAXUMAN [BALASUBRAMANYAN, J.) 549 to construe the provision to mean that the date on which the right of j 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 I 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 to do so, if he so desires, in which even the party would be helpless. In other words, the Deputy Commissioner could act according to his whims and fancies. It is difficult to agree that the Legislature intended to bring about such a result. Further, such a construction which brings about anomalous and incongruous results and gives ample scope for nepotism, favouritism and corruption, should not be given. We have come across several Re~erences made after two decades, particularly after several additional benefits were conferred by Amending Act 68 of 1984 amending the Land Acquisition Act. In our opinion, the correct view to take is, just as the party loses the right to the Reference if no application is made within 90 days in terms of Section 18(2), the party, who had made an application within 90 days loses the right to secure a Reference ifhe fails to make an application within three years after the expiry of 90 days from the date of the Reference application and consequently the power of the Deputy Commissioner/Land Acquisition Officer to make Reference comes to an end. We are, therefore, of the view that the date of cessation of the Deputy Commissioner to make the Reference also constitutes the date of cessation of power of the Deputy Commissioner. To put it in a nutshell the latter comes to an end on the date on which the former ends and the award of the Land Acquisition Officer becomes final. Therefore, neither the party can seek a Reference nor the Deputy Commissioner can make the Reference after the expiry of 3 years and 90 days from the date of the Reference application."

11. In view of some differences of opinion that subsequently arose mainly because of the failure to appreciate the reasoning of the Division A Bench as above, the question was referred to a Full Bench. The Full Bench, by a majority has overturned the above view. That decision of the Full Bench is reported as Hanamappa v. The Special Land Acquisition Officer, !LR (1998) Karnataka 4071. That decision is challenged in Civil Appeal No.1566 of2001.

12. While one of the Judges agreed with the position expanded by the Division Bench in G.C. Paramraj, (supra), two of the learned Judges proceeded to hold that the Division Bench in G. C. Paramraj (supra) did not lay down the correct law. It is seen that while holding so, the court stated that there was no mandatory obligation on the Deputy Commissioner to make a reference C 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 D 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 Addi. Sp!. Land Acquisition Officer, Bangalore v. Thakoredas, Major and Ors. (supra) rendered by this Court would not in any manner suggest that E 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 ~he approach made in Paramraj 's case and held that there was no reason to reconsider the view expressed therein. The learned F Judge noticed that even in the matter of issue of a writ of mandamus under ·' • Article 226 of the Constitution of India, in State of MP. v. Bhai Lal, AIR·· i·· (1964) SC 1006 this Court had held that after the expiry of the period of limitation and on the ground of uncondonable !aches, the same cannot be sought for or issued.

13. The majority, in our view, was not justified in mixing up the position obtaining under Section 18 of the Central Act and the position obtaining under Section 18 of the Act as amended in Karnataka. The Court had to consider the scheme of Section 18 as obtaining in Karnataka, the scope of the relevant provisions and the consequences arising from it, unaffected by lI what might be the position under Section 18 of the Central Act. Section 18 STATE OF KARNATAKA v. LAXUMAN [BALASUBRAMANYAN, J.] 551 of the Act as in Karnataka, in fact, confers additional rights on a claimant by A providing an extended time for making a claim for reference, possibly considering the situation available in the State and a further right on the claimant to approach the Land Acquisition Court for directing a reference to it, based on the application already made by him before the Deputy Commissioner. The High Court, in our view, erred in proceeding on an enquiry B 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 C 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) o~ 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 D 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.

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 F 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 G 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 H A Section 18 of the Act as adopted in the State of Kamataka. 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.

15. Under the scheme of Section 18 of the Act as in Kamataka, thus the B 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 (I) 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 Addi. Sp/. Land Acquisition Officer, Bangalore v. Thakoredas, C Major and Ors., (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 D 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 E 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( I) of the Act, the remedy of the claimant to have a reference gets extinguished and the right to have an enhancement becomes unenforceabJe. The Deputy Commissioner would not F 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.

16. The object of bringing in Section 18 in the amended form in Kamataka 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 G 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 t<i 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 H a company for the benefit of which the acquisition is undertaken. Therefore, STATEOFKARNATAKA v. LAXUMAN [BALASUBRAMANYAN, J.] 553 any interpretation based on which the Deputy Commissioner is given the A 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 B the court in that behalf has been lost to the claimant himself.

17. The majority, in our view, has not properly appreciated the position highlighted in the decision of that Court in Assistant Commissioner v. Laxmi Bai, I.L.R. (1987) Kamataka 2132 that the power to make a reference under Section 18 (3) subsists till the right of the party to make an application before C the Court seeking a direction to the Deputy Commissioner to make a reference exists and that the pessation of the right of the party to apply to the court for seeking a direction to the Deputy Commissioner to make a reference, is also the point at which the power of the Deputy Commissioner to refer, ceases. We think that this position logically emerges from the scheme of Section 18 of the Act as adopted in Kamataka.

18. The language of Section 18 is plain as indicated by the High Court. But the question is what is the scheme that has been formulated by Section 18 of the Act vis-a-vis a claim for enhancement. The scheme under Section 18 in Karnataka is a departure from the Central Act and the scheme in Kamataka has to be understood, based on the provisions in Section 18 as E in Kamataka and the consequences emerging from it. The question whether the time fixed under Section I 8(3)(a) is mandatory or directory and whether time fixed for performance of a duty is generally considered directory or ~andatory are all questions that may not have much relevance in t~e context of the scheme of Section 18 of the Act. Whether mandatory or directory, on F the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant, on the scheme of Section 18, the very right to have a claim for enhancement, would come to G an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference.

19. The High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the H A information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from ihe reference court regarding 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 B 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 C 18(3 )(b) of the Act within the time prescribed therefor 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 D 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 ori any award that might have been made within the· time prescribed therefor in respect of land covered by the same notification.

21. Then the question is, whether in the context of Section 18 of the E 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 l_)eputy Commissioner here, while entertaining an F 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 I 8(3)(b) of the Act. We have held in agreement with the earlier Division Bench of the Kamataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the G 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 H a reference at all. Since in that sense it is an extinguishment of the right, the STATE OF KARNA T AKA v. LAXUMAN [BALASUBRAMANY AN, J.] SSS right cannot be revived by resorting to Section 5 of the Limitation Act. We A may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this aspect.

22. An application under Section 18(3)(b) of the Act is to compel a reference by the Deputy Commissioner. We have held that on the expiry of B three years and 90 days from the date of the application for reference seeking enhancement the right of the Deputy Commissioner to make the reference comes to an end. In that context, and in the context of the fact that the claimant himself loses his right to move the court for compelling a reference, it is not possible to ~old that by in_voking Section 5 of the Limitation Act C before the Land Acquisition Court the claimant can get over the bar to the remedy created by Section 18 of the Act. We are, therefore, of the view that Section 5 of the Limitation Act would have no application while approaching the court under Section 18(3)(b) of the Act and if the application is not within the time as indicated above, the same has only to be dismissed as was done in Thakoredas 's case (supra).

23. In the light of our discussion as above, we hold that the High Court was in error in holding that the Deputy Commissioner could make a reference even after the expiry of three years and 90 days from the date of the application for reference made by the claimant within the time prescribed by Section 18(2) of the Act. We uphold the view of the High Court in Paramraj's case (supra) E that the remedy having become barred the right could not thereafter be enforced. In that context, we hold that the claimant while approaching the court under Section 18(3)(b) of the Act would not be entitled to invoke Section 5 of the Limitation Act. In the light of these, w~ allow these appeals and set aside the orders of the High Court. We dismiss the applications for p reference made by the claimants. We also uphold the view of the Land Acquisition Court that a reference made beyond the expiry of three years and 90 days from the date of application for reference by the Deputy Commissioner is incompetent. We hold that the respondents are not entitled to claim any enhancement by recourse to Section 18 of the Act. In the circumstances we make no order as to costs. v.s.s. Appeal allowed.