STATE Vs. ABDUL RAHEEM KHAN

JUDGEMENT

(1.) HEARD the learned Government Pleader Sri M. H. Ibrahim on behalf of the State-revision petitioner and the learned Counsel for the respondent, Sri Lokesh Malavalli.

(2.) THIS revision application has been made challenging the order dated 24-3-1994 passed by the learned Additional Civil Judge, Bidar, in Misc. No. 23 of 1990 on an application under Section 18 (3) of the Act directing the Land Acquisition Officer to submit the reference of his redetermined award to the Court forthwith with respect to acquired land Sy. No. 32/1 of bhairnalli and Sy. Nos. 2, 53/2, 53/3, 53/4 and 56/1 of Village Kanhalli, acquired for construction of a tank in Village Kanhalli Taluk, Bidar. It has been contended by the learned government Pleader that the petition under Section 18 (3) was not within time and therefore reference should not have been made. The authority dealing with the question (1) whether it is a fit case to call for the reference from the Land Acquisition Officer, has opined that though the learned Government Pleader has filed objections stating that the petition is not within time, but he has not specifically revealed the date of the notice of award and filing of reference by the petitioner. It observes, in the absence of any contrary record, the version of petitioner has to be believed. Moreover, the point of limitation, if any, can be considered even after submission of reference by the Land Acquisition Officer. After having made these observations, he opined that it was a fit case for calling for reference.

(3.) UNDER the Land Acquisition Act as amended by the Karnataka Act No. 17 of 1961, it has been provided that every application under Section 18 (1) shall be made within 90 days from the date of service of the notice by the Deputy Commissioner or from the office of the Deputy commissioner under Section 12 (2 ). It is further provided that on application being made within 90 days from the date of service of notice under Section 12 (2) as per Section 18 (3), the Deputy commissioner if fails to make the reference within the period of 90 days from the date of receipt of the application under Section 18 (1), the claimant will have a further right to move the Civil court with a prayer that the Deputy Commissioner be directed to make the reference within such period as the Court may deem fit. This application under Section 18 (3) (b) has to be made within a period of 3 years from the date of expiry of 90 days period, given to the Deputy Commissioner to pass the order of reference on the application under Section 18 (1 ). When I so mention and say that within three years from the date of expiry of 90 days period within which the reference has to be made by the Deputy Commissioner, the claimant will get a period of three years according to Article 137 of the Limitation Act. The Land Acquisition Act or amended provision does not prescribe any period of limitation for moving the Court under Section 18 (3) of the Act and in such cases where special as well as general law provides no period of limitation for doing an act or for moving the petition, the provision of Article 137 which is a residuary provision will be applicable as held by their lordships of the Supreme Court in the case of Additional Special Land acquisition Officer v Thakoredas and Additional Special Land Acquisition Officer, Bangalore v thakoredas, Major and Others. In order to show that the application under Section 18 (1) was time-barred, the State has to specifically state the date on which the notice under Section 12 (2)was served. That the Deputy Commissioner has been entitled to dispose of the application under section 18 (1) of the Act within ninety days period from the date of receipt of the application. If the Land Acquisition Officer, allows this period of ninety days to expire and does not pass any order or does not refer the case within the aforesaid period, then person aggrieved like the respondent may have the cause to move the Court under Section 18 (3) (b) of the Act and it is from the date of expiry of aforesaid ninety days period, the period of three years--is to be counted and if within this 3 years period application is not made under Section 18 (3) (b) of the act then only an application under Section 18 (3) (b) can be said to be barred by limitation. The state has stated no such date of issuance of notice under Section 12 (2 ). If the State had to allege that either application under Section 18 (1) or under 18 (3) of the Act was time-barred, the burden had been on the State to show the date of service of notice under Section 12 (2) on the claimant. The document in this regard must be in possession of the State and the Special Land Acquisition officer i. e. , the Deputy Commissioner. Why those documents were not produced when this plea was placed? No explanation has been offered and when no document has been furnished and no date has been indicated, then adverse presumption may be drawn against the plea taken by the state i. e. , if the document would have been favourable to the State, then the State would have definitely produced those documents showing the date of service of notice under Section 12 (2)of the Act and it can be presumed the date of service if would have been indicated then from that date definitely claim would have been within time i. e. , why the State Government has not produced the document before the Civil Court and no doubt therefore it can be said that plea raised by the State was frivolous. Any way I do not wish to make any final observations. In such cases, the decision on question of limitation is a mixed question of law and fact. The fact that is to be alleged and proved is firstly on which date the notice under Section 12 (2) was served on the claimant i. e. , the person whose land has been acquired. Then within 90 days he had got the right to move the application under Section 18 (1 ). He could move under Section 18 (1) an application on the last date of 90 days period before Land Acquisition Officer. Thereafter 90 days further time was available to the Commissioner to dispose of that application and make reference and if within that 90 days period, the Land Acquisition Officer did not pass any order, definitely it has always been open to the applicant or the claimant to move under Section 18 (3) (B) of the Act within a period of three years from the last date of above period. I may say on the expiry of 180 days period from the date of service of notice under Section 12 (2), the period of three years for limitation has to be counted to see that whether the application under section 18 (3) is within time. These questions of fact may have to be decided after going through the evidence and the record. The stage of evidence, I am sure is not yet reached. It is also one of well-settled principles that under Order 14, Rule 2 of the CPC that where a case though can be disposed of on a preliminary issue, but where issue involves mixed questions of law and fact and it cannot be decided as a pure question of law, then the preliminary issue has to be determined and decided along with all other issues after recording evidence.