LAND ACQUISITION OFFICER AND ASSISTANT COMMISSIONER GADAG DIVISION GADAG Vs. RAJESAB HUSSAINSAB KALABURGI AND ANOTHER

JUDGEMENT

(1.) We have noticed very disturbing state of affairs in several appeals coming before us against the awards made in references under Section 18 of the Land Acquisition Act which are barred by time by several years and awarding amount of compensation far more than what the claimants themselves had asked for. This appeal preferred by the Special Land Acquisition Officer and the Assistant Commissioner, Gadag, aggrieved by the Judgment and Award made by the Civil Judge, Gadag, is one such and glaring instance too.

(2.) Two important questions of law arise for consideration in this appeal. They are:(1) If an application seeking reference to the Court under Section 18 of the Act praying for awarding higher compensation is filed before 'the Deputy Commissioner/Land Acquisition Officer after the expiry of 90 days, whether the Court has the power to condone the delay, to call for and to dispose of the reference on merits? (2) Even though by amending Section 25 of the Act, the bar against granting compensation at a rate higher than the rate at which the claimant had claimed before the Land Acquisition Officer had been removed, under what circumstances compensation at a rate higher than the one at which the compensation was claimed in the statement filed before the Deputy Commissioner/Land Acquisition Officer, could be awarded by the Court?

(3.) Brief facts of the case are these: (i) By a preliminary notification, dated 7-10-1965 issued under the provisions of the Land Acquisition Act, 5 acres 19 guntas of land belonging to the respondent in Sy. No. 452/1C of Gadag-Betageri was proposed to be acquired for the purpose of Agricultural Produce Market Committee, Gadag, the 2nd respondent in the appeal. After the final notification was issued, the 1st respondent challenged the legality of the acquisition in Writ Petition No. 3341/1970 on 6-8-1970, The writ petition was dismissed as belated. The appellant thereafter filed suit O.S, No. 151 of 1973 on the file of the Civil Judge's Court at Gadag praying for the issue of an injunction not to proceed further with the acquisition on the ground that the acquisition was null and void for non-compliance with Section 5-A of the Act That suit was dismissed on 21-7-1975. Against the Judgment and Decree the respondent filed R.A. No. 59/1975 before the Civil Judge, Gadag. That was dismissed on 16-3-1976. Thereafter, he filed R.S.A. No. 376/1976 before this Court. The appeal was dismissed on 5-4-1984. (ii) In the meanwhile, after the final notification acquiring the land was issued under Section 6 of the Act on receipt of the notice under Section 9 of the Act, the 1st respondent submitted his claim and claimed compensation at the rate of Rs. 600/- per gunta, which works out to Rs. 24.000/- per acre. The Land Acquisition Officer, however, awarded a sum of Rs. 2.000/- per acre. The Land Acquisition Officer made the award on 30th May, 1970. The 1st respondent made an application under Section 18 of the Land Acquisition Act on 29-5-1984. The relevant portion of the application dated 29-5-1984 reads: "In this the above-named applicant begs to apply as under. The applicant is the owner of Sy. No. 452/1C of Betageri village in Gadag taluka, measuring 5 acres 38 guntas, 2 acres out of this land was converted into non- agricultural land in or about the year 1967. 12 plots have been laid down in the said non-agricultural area and plot Nos. 5, 6, 7 and 9, 11 are sold and they are in position of the purchaser. The agricultural land then numbered as Sy. No. 452/1C1 and non-agricultural land numbered as Sy. No. 452/1C2. This land of applicant is acquired by L.A.O., Gadag in L.A.R.Q. SR. No. 883 and passed an award on 30-5-1970. The amount of compensation of Rs. 12,614.03 was awarded by Land Acquisition Officer, Gadag to the applicant. The applicant had challenged the legality of the said award in O.S. No, 151 of 1973 of Gadag Munsiff Court. The said suit was dismissed on 21-7-1975. Against the said decree applicant preferred an appeal R.A. No. 59 of 1975 in Civil Judge Court, Gadag. That also came to be dismissed on 16-3-1976. Against the said decree in the appeal applicant preferred a regular second appeal in Karnataka High Court in R.S.A. No. 376 of 1976. This second appeal also is dismissed on 5-4-1984. The applicant is still in possession of the above referred acquired land. There was an injunction order against the L.A.O., Gadag restraining him from taking possession of theland of applicant, since institution of the suit O.S. No. 151/73 in Gadag Munsiff Court on 12-7-1973, by the Civil Court, in suit in the first appeal and also in the second appeal. This injunction order came to be vacated with the dismissal order in R.S.A. No. 376 of 1976 on 5-4-1984. However, the Land Acquisition Officer has not yet taken possession of the acquired land. The applicant had not received the compensation amount awarded by L.A.O., Gadag. The applicant intends the matter to be referred to Civil Judge Court, Gadag for enhancement of compensation. The award passed on 30-5-1970 by the Land Acquisition Office and Assistant Commissioner, Gadag Division, Gadag is not acceptable and it is objected to on the grounds mentioned herein below: 8) It is very strange to note how the L.A.O. has fixed the value of this land at the rate of Rs. 2,000/- per acre, though the land in the vicinity of the applicant is sold at the rate of Rs. 50,000/- to Rs. 80,000/- per acre. 9) The L.A.O. has not considered all the relevant provisions of Land Acquisition Act at the time of the passing of award. 10) The agricultural land of the applicant would have fetched Rs. 40,000/- to 50,0007- per acre and non-agricultural land would have fetched Rs. 5 to 8 per sq. ft. on the date of publication of notice under Section 4(1) of Land Acquisition Act, 1894. Hence, the reasonable value of the agricultural land is Rs. 45,000/- per acre and that non-agricultural land is Rs. 7.00 per sq. ft. at the time of publication of Section 4(1) notification". As can be seen from the facts stated by the 2nd respondent in the above petition, after receipt of award notice instead of filing an application under Section 18 of the Land Acquisition Act, the 2nd respondent challenged the award in O.S. No. 15171973 before the Munsiff Court, Gadag, challenging the legality of the award. The suit was dismissed on 21-7-1975 and his appeal before the Civil Judge in R.A. No. 5971975 was dismissed on 16-3-1976 and Regular Second Appeal in R.S.A. No. 37671976 was also dismissed, on 5-4-1984. It is after the dismissal of the second appeal, the appellant made an application on 29-5-1984. In the light of the facts stated by the 2nd respondent in the reference application itself, it is beyond doubt that the reference application was barred by time as under Section 18 of the Act, any person who is aggrieved by the award made by the Land Acquisition Officer bad to make an application within 90 days before the Deputy Commissioner or Land Acquisition Officer, as the case may be, from the date of service of notice of the award. From the facts stated in the reference application, it is clear the appellant had been served with the notice of the award at least some time prior to 1973 as he filed fhe suit O.S. No. 15171973 in the Court of the Munsiff at Gadag, challenging the legality of the award. (iii) By letter, dated 4-6-1984 of the Special Deputy Commissioner, the application was sent to the Assistant Commissioner, Gadag, for taking appropriate action. The Assistant Commissioner, Gadag, issued endorsement, dated 2-7-1984, which reads: "Subject: Reference application under Section 18 of Land Acquisition Act, 1894. No. LAQSR - 883 Gadag, 2-7-1984. To Shri Rajesab Hussainasab Kalburgi of Betageri Sir, With reference to your application, dated 29-5-1984 addressed to the Special Deputy Commissioner, Dharwad, I have to inform you that the Notices under Section 12(2) of the L.A. Act, has been received by you long back i.e. on 21-7-1970. As per Rule you were required to file the appeal within 90 days from the date of service of notice. But you have failed to file the application under Section 18 of L.A. within the stipulated period. Hence the question of condoning the delay does not arise. Hence your application is filed. Yours faithfully, Sd/- Assistant Commissioner, Gadag Sub-Division, Gadag." As can be seen from the endorsement, the notice under Section 12(2) of the Act has been served on the 1st respondent as early as on 21-7-1970. Therefore, the Assistant Commissioner stated that as the application was not filed within 90 days from the date of service of notice, the application was filed. (iv) Section 18 of the Land Acquisition Act as amended by The Land Acquisition (Karnataka Extension and Amendment) Act, 1961, reads: "18. Reference to Court. (1) Any person interested who has not accepted the award for amendment thereof may, by written application to the Deputy Commissioner require that the matter be referred by the Deputy Commissioner for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall stale the grounds on which objection to the award or the amendment 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 subsection (2) of Section 12. (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, and the Court may direct the Deputy Commissioner to make within such time as the Court may fix". As can be seen from the language of Section 18 as amended by this State, an application seeking reference has to be made within 90 days from the date of service of notice of the award under Section 12(2) of the Act. If an application is filed within 90 days and the Deputy Commissioner fails to make the reference within 90 days from the date of application, the claimant is given the right to make an application before the Civil Judge concerned seeking for a direction to the Land Acquisition Officer to make a reference. Such an application has to be made within 3 years as Article 137 of the Limitation Act applies. See S.L.A.O. v Guruappa Channabasappa Paramaj, 1991(1) Kar. L.J. 613 : ILR 1991 Kar. 1109. In the present case the 1st respondent could not make an application under section 18 of the Act before the Civil Judge as he had made no application within 90 days from the date of service of the award notice. In the present case, the application before the Land Acquisition Officer was made by the first respondent after more than 13 years after the date on which the notice under Section 12(2) of the act was served on thelst respondent. The 1st respondent, however, made an application before the Civil Judge praying for calling for reference after the endorsement, dated 2-7-1984 was issued stating that his application was rejected as time barred. Along with it, he filed an application for condonation of delay in making the reference application. The learned Civil Judge entertained the application, condoned the delay and directed the Land Acquisition Officer to make the reference by his order dated 4-11-1985. In obedience to the direction issued by the learned Civil Judge, the Land Acquisition Officer made the reference. (v) Aggrieved by the order made by the learned Civil Judge condoning the delay and entertaining the application of the 1st respondent and making a prayer for direction to the Land Acquisition Officer to make the reference, the 2nd respondent filed CRP No. 2930/1986 before this Court. During the pendency of the said revision petition, the learned Civil Judge made the award under Appeal on 7-7-1986. Therefore, the revision petition was dismissed on the ground that the objection regarding limitation could be raised in the appeal. The order of this Court on the revision petition reads: "Sri Goulay, learned counsel for respondent No. 1, has produced a photostat copy of the award finally passed in LAC No. 92/1985. So, the point sought to be impugned in the revision can be well agitated in the appeal that may be filed against the award passed in LAC No. 92/1985. Hence, this civil revision petition is accordingly dismissed with a liberty to the party concerned to agitate this point in the appeal if he chooses to prefer an appeal". (vi) In the reference the appellant had raised an objection to the effect that the reference was barred by limitation. It was the duty of the learned Civil Judge to decide that question. However, strangely, the learned Civil Judge, except stating in the course of the order that the respondent had raised the plea to the effect that the reference was barred by time, completely overlooked the said objection and made an award enhancing the compensation. He awarded compensation at the rate of Rs. 2.25 Ps. per square foot in respect of 2 acres of land which according to the respondent had been converted for non-agricultural purpose, which works out to Rs. 98,010/- per acre and at the rate of Rs. 2/- per square foot in respect of the balance of 3 acres 19 guntas, which works out to Rs. 87,120/- per acre. The learned Judge has awarded compensation at the aforesaid rate, though the 1st respondent himself had claimed a compensation at the rate of Rs. 600/- per gunta for the entire extent of land acquired, which works out to Rs, 24.000/- per acre.