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CASE NO.: Appeal (civil)  2024 of 1999

PETITIONER: STATE OF KARNATAKA                                               

RESPONDENT: LAXUMAN                                                          

DATE OF JUDGMENT: 25/10/2005

BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  WITH

CIVIL APPEAL NOs. 4459/1999, 607-609/2000,  5547/2000, 1566/2000  and 1567/2001   

P.K. BALASUBRAMANYAN, J.

                        All these appeals involve questions connected with the scope  and effect of Section 18 of the Land Acquisition Act as amended and  adopted in the State of Karnataka.  The brief facts leading to the appeals are  as under.

CIVIL APPEAL NO.2024 OF 1999                 The State challenges the order of the learned Single Judge of  the Karnataka High Court in Civil Revision Petition No.3682 of 1995 by  which the learned Judge dismissed the revision filed by the State challenging  the order of the Civil Judge, being the land acquisition court, purporting to  condone the delay in filing an application under Section 18(3)(b) of the Land  Acquisition Act, as amended in Karnataka.  The notice of the award under  Section 12(2) of the Act was served on the claimant on 6.1.1984.    Under  Section 18(2) of the Act, the claimant had 90 days from the date of service  of that notice, to seek a reference under that Section for enhancement of  compensation.   The respondent claimed that an application under Section  18(1) of the Act seeking a reference was filed on 15.3.1984, within 90 days  of 6.1.1984, but the reference was not made by the Deputy Commissioner  within 90 days thereafter as enjoined by Section 18(3)(a) of the Act.   The  claimant approached the civil court under Section 18(3)(b) of the Act only in  April 1994, more than 10 years after the receipt of the notice of the award.    The claimant also purported to file an application for condoning the delay in  making the application.   This was in view of the fact that it had been held  that an application to the court under Section 18(3)(b) of the Act had to be  made within three years of the expiry of 90 days of the date of making an  application seeking a reference for enhancement of compensation.   The  State opposed the application for condoning the delay on the ground that  Section 5 of the Limitation Act had no application and that, in any event,  no  ground was made out for condoning the long delay of ten years in filing the  application.   The civil judge proceeded to condone the delay and proceeded  to direct the Deputy Commissioner to make a reference in terms of Section  18 of the Act.   In revision, the High Court refused to interfere on the ground  that Section 5 of the Limitation Act had application and there was no reason  to interfere with the condoning of the delay by the civil judge.   The High  Court apparently without even a verification, merely accepted the evidence  of PW 1 that he had made an application within 90 days of the receipt of the  notice of the award under Section 12(2) of the Act.   Feeling aggrieved by

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that order, this appeal by special leave has been filed by the State.

CIVIL APPEAL NO.4459 OF 1999

               In this case, the civil judge dismissed the application made  under Section 18(3)(b) of the Act by the respondent on the ground that the  application was barred by limitation.   This order of the civil judge was  challenged in an appeal before the District Judge.   It is not clear under what  provision such an appeal was filed, since under Section 54 of the Land  Acquisition Act as amended in Karnataka no appeal is provided to the  District Court from such an order of the civil judge and an appeal is  provided only against the award.  The appellate court is seen to have held  that Section 5 of the Limitation Act was applicable and the learned civil  judge was in error in dismissing the application for compelling the reference  under Section 18(3)(b) of the Act without deciding the prayer for  condonation of the delay in filing that application.  This order of the District  Judge was challenged in revision before the High Court.   The High Court  held that Section 5 of the Limitation Act had application and declined to  interfere with the order of remand made by the Additional District Judge.    The High Court, thus, dismissed the revision filed by the State.   Aggrieved  by this order, the State has come up with this appeal by special leave.

CIVIL APPEAL NOs.607-609 of 2000                 In the first case it appears that the application for reference  under Section 18(1) of the Act itself was made only two years after the  award.   Another seven years thereafter an application for compelling a  reference was made under Section 18(3)(b) of the Act.   The civil judge  dismissed the application on the ground that it was out of time.   Ten years  thereafter, the claimant filed a revision as C.R.P. No.1505 of 1997 before the  High Court.   The High Court ignored the delay of ten years in filing the  revision in a somewhat cavalier manner and allowing the revision remitted  the reference application to the Land Acquisition Court for entertaining the  application under Section 18(3)(b) of the Act.  The others were cases of a  similar nature.    In all of them there was considerable delay in making the  application for reference and also delay in approaching the court.   In these  revisions also, same lack of application of mind was exhibited by the High  Court and the revisions were allowed and the applications remitted.   The  common order thus passed, is subjected to challenge in these appeals.

CIVIL APPEAL NO.5547 OF 2000

               The State challenges the order of the High Court  passed under  the same circumstances leading to the challenge in C.A. No.4459 of 1999.   Here the application for compelling a reference was dismissed on the ground  that it was out of time.   The District court permitted the claimant to file an  application under Section 5 of the Limitation Act and directed its  consideration.  The High Court refused to interfere.

CIVIL APPEAL NO.1567 OF 2001                 In this appeal, the State of Karnataka challenges the order in  Civil Revision Petition No.956 of 1998.   In this case also the civil judge  dismissed the application under Section 18(3)(b) of the Act in view of the  fact that it was not within time.   An appeal was purported to be filed by the  claimant under Order 43 Rule 1 of the Code of Civil Procedure.  The same  was allowed and the matter was remanded.  Against the order of the District  Court, the revision was filed by the State challenging the competence of the  order.   The High Court refused to interfere based on the same reasons it had  adopted in the order giving rise to Civil Appeal No.4459 of 1999.   Feeling  aggrieved, the State has filed this appeal by special leave.

CIVIL APPEAL NO.1566 OF 2001

               This appeal challenges the decision of the Full Bench of the  Karnataka High Court which by a majority held that even though the right to  the claimant to apply for compelling a reference under Section 18(3)(b) of

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the Land Acquisition Act, as amended in the State of Karnataka may be lost,   the Deputy Commissioner could still make a reference even if it be after ten  years, if he so chose and that in such a situation, the court could also compel  a reference notwithstanding that the period for applying for reference has  expired.  The State challenges the above view adopted by the Full Bench by  a majority and contends that the minority view holding that once the right to  the claimant to apply has come to end, the question of reference does not  arise, is the correct one and deserves to be accepted.   

        2.              Section 18 of the Land Acquisition of the Act, 1894 (for short  "the Act")  as amended by Act 68 of 1984 provided that a person interested  in a land acquired and who has not accepted the award of compensation by  the Collector, could apply to the Collector for a reference of his claim within  six weeks of the date of the award if he was present at the time of making of  the award and within six weeks of the notice from the Collector under  Section 12(2) of the Act if he was not so present.   In a case that may not be  covered by either of the above situations, the claimant has to make his  application within six months of the date of the award of the Collector.   The  State Legislature by an amendment brought to Section 18 of the Act   substituted the proviso to Section 18(2)  by replacing the period  of six  weeks by a period of 90 days and making the starting point, the date of  service of notice from the Deputy Commissioner under Section 12(2) of the  Act.   Sub-section (3) was added directing that the Deputy Commissioner  should make the reference to the court within a period of 90 days from the  date of receipt of the application under sub-section (1) of Section 18 of the  Act.   If he failed to do so within the period of 90 days, the party was given a  right under Section 18(3)(b) of the Act to apply to the court to direct the  Deputy Commissioner to make the reference and the court was conferred the  power to direct the Deputy Commissioner to make the reference within such  period as may be fixed by the court.   For the purpose of convenience it will  be better to quote the section as amended in the State of Karnataka:         "18.   REFERENCE TO COURT(1) Any person  interested who has not accepted the award or amendment  thereof, may by written application to the Deputy  Commissioner  require that the matter be referred by the Deputy  Commissioner for determination of the court, whether his  objection be to the measurement of the land, the amount of the  compensation, the person to whom it is payable, or the  apportionment of the compensation among the persons  interested.

(2)     The application shall state the grounds on which  objection to the award is taken:

       Provided that  every such application shall be made  within ninety days from the date of service of the notice from  the Deputy Commissioner under sub-section (2) of Section12.

3.      (a)     The Deputy Commissioner shall, within ninety  days from the date of receipt of an application under sub- section (1) make a reference to the Court.

(b)     If the Deputy Commissioner does not make a  reference to the Court within a period of ninety days from the  date of receipt of the application, the applicant may apply to the  court to direct the Deputy Commissioner to make the reference,  and the Court may direct the Deputy Commissioner to make the  reference within such time as the Court may fix."

               The court to which the application was to be made was the  principal civil court of original jurisdiction.      

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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 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 Addl. Spl. Land Acquisition Officer,  Bangalore vs. Thakoredas, Major and others (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 that  application but it should be done within limitation prescribed by  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 attracted.   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, 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), which has stood overruled, the order of the High  Court is unsustainable."

This position is also supported by the reasoning in Kerala State Electricity  Board vs. 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 the principal civil court of original jurisdiction to compel a  reference and no time limit was also fixed for making such an approach.    All that 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 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 within  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 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

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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.

6.              Section 18 of the Land Acquisition Act as amended in  Karnataka is self contained.  The amendments substantially alter the  position as obtaining 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) 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 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 Karnataka 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.  The Section proceeds further and imposes a  duty on the Deputy Commissioner to make the reference to the Court

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within 90 days from the date of receipt of the application under Section  18(1) 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 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 reference 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 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 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.    

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  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.

10.             The Division Bench of the High Court in Special Land  Acquisition Officer vs. G.C. Paramraj  (ILR  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 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 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

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time even after decades.   In our view, it is reasonable to  construe the provision to mean that the date on which the  right of 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 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 References 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 if he 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 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 vs. The Special  Land Acquisition Officer (ILR 1998 Karnataka  4071).  That decision  is challenged in Civil Appeal No.1566 of 2001.

12.             While one of the Judges agreed with the position exponded  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 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

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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 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 Addl. Spl. Land Acquisition  Officer, Bangalore vs. Thakoredas, Major and others (supra) rendered by  this Court would not in any manner suggest that 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 the approach made in Paramraj’s case and held that there was  no reason to reconsider the view expressed therein.   The learned 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 M.P. vs. Bhai Lal  (AIR 1964 SC 1006) this Court had held that after the expiry of the  period of limitation and on the ground of uncondonable laches, 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 what might be the position  under Section 18 of the Central Act.  Section 18 of the Act as in  Karnataka, in fact, confers additional rights on a claimant by 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 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.

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 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

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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.

15.             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.   

16.             The object of bringing in Section 18 in the amended form  in Karnataka 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 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 to  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 a company for  the benefit of which the acquisition is undertaken.  Therefore, any  interpretation based on which the Deputy Commissioner is given the  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 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 Versus Laxmi Bai [I.L.R. 1987 Karnataka 2132) that  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

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direction to the Deputy Commissioner to make a reference exists and  that the cessation 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 Karnataka.

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-‘-vis a claim for enhancement.   The scheme under Section 18 in Karnataka is a departure from the  Central Act and the scheme in Karnataka has to be understood, based  on the provisions in Section 18 as in Karnataka and the consequences  emerging from it.   The question whether the time fixed under Section  18(3)(a) is mandatory or directory and whether time fixed for  performance of a duty is generally considered directory or mandatory  are all questions that may not have much relevance in the context of the  scheme of Section 18 of the Act.  Whether mandatory or directory, on  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 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 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 the 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  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 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 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 on 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 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

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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 sense it is an extinguishment of the right,  the right cannot be revived by resorting to Section 5 of the Limitation  Act.   We 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  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 hold that by invoking Section 5 of the  Limitation Act 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) 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, we  allow these appeals and set aside the orders of the High Court.  We dismiss  the applications for 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.