Noor Mohammad Shah and Others vs State and Others

Mansoor Ahmad Mir, J.—Petitioners have challenged communications bearing Nos. SDA/DLM/5929 dated 29.03.2005 and SDA/DLM

dated 24.01.2006-annexures F and G issued by respondent No. 3 and have sought writ of mandamus commanding the respondents to make

reference in terms of Section 18 of the Land Acquisition Act, 1990 (1934 A.D.), for short Act, on the following grounds.

It is averred that Srinagar Development Authority-SDA acquired land in the year 1997. The father of the petitioners, namely, Mohammad

Ramzan Shah (Shala) received the compensation amount under protest but he could not file petition for making reference because he met with an

accident and was bed ridden and succumbed to injuries on 12th June, 1998. Petitioners could not file the application for making reference for the

reasons that they were minors and ultimately petitioner No. 1 on attaining majority filed application for making reference which came to be rejected

vide communication dated 24.01.2006-an-nexure-G. Petitioners have admitted in para-11 of the petition that application u/s 18 of the Act was

time barred. It is profitable to reproduce relevant portion of para-11 herein:

11...Since the application u/s 18 Land Acquisition Act was admittedly time barred therefore the application was accompanied by application for

condonation of delay also along with affidavit.

Respondents have resisted the petition on the ground that petition is hit by latches and father of the petitioners has received compensation

amount without protest. He had neither disputed the adequacy of the compensation nor made any claim for making reference in terms of the Act.

Heard. Admit. With the consensus of learned Counsel for the parties, this petition is taken up for final disposal.

The crux of the matter is whether this petition is maintainable. Admittedly award came to be passed in the 1997 and compensation came to be

received by the father of the petitioners in the year 1997. But core dispute is whether he received amount under protest or not is a question of fact-

cannot be gone through in this writ petition.

The second question which arise for consideration is whether the father of the petitioners had made application for reference within the time

frame.

Section 18 of the Act provides the time frame. Admittedly, father of the petitioner had not made any application. The application came to be

made by the petitioners after seven years from the date of passing of award. Though, admittedly the money was received in the year 1997 by the

father of the petitioners. Petitioners have admitted in the writ petition that the petition u/s 18 of the Act was time barred. Thus the delay which has

crept in is on the face of it unreasonable.

Apex Court in case titled Ravi Khullar and Another Vs. Union of India (UOI) and Others, , has held as under:

It will be noticed that the appellants filed the writ petition challenging the acquisition proceeding which was initiated in 1965 as late as on

September 25,1986, after the Award had been declared u/s 11 of the Act. The High Court, in our view, has rightly noticed that the acquisition was

challenged almost 21 years after the issuance of the Notification u/s 4 of the Act. Indeed the writ proceeding was initiated after the Award was

declared. The High Court has relied upon the decision so this Court in Aflatoon v. Lt. Governor of Delhi, Tilokchand Motichand v. H.B. Munshi,

Indrapuri Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and Ors.; Pt. Girharan Prasad Missir and Anr. v. State of Bihar and Anr.

and H. D. Vora v. State of Maharashtra and Ors.. Following the principles laid down therein the High Court dismissed the writ petition on the

ground of delay and latches. In the facts and circumstances of the case no exception can be taken to the order of the High Court dismissing the

writ petition. There was no good reason explaining the delay in moving the High Court in exercise of its writ jurisdiction. It is not necessary to refer

to the large number of authorities on the subject since the law is so well settled that there is no need for a further reiteration.

Once period of limitation/time frame has begin to run, can subsequent disability or inability stops running of the same? The reply is in negative.

The limitation prescribed by the mandate of Section 18 of the Act started to run from the date the amount was received by father of the

petitioner. Ten years have elapsed from the date of passing of the award till filing of the writ petition. The writ petition on the face of it is time

barred. Thus remedy under Article 226 of the Constitution cannot be sought. It merits to be dismissed in limine.

Apex Court in case titled State of Madhya Pradesh Vs. Bhailal Bhai and Others, , has held that when there is un-reasonable delay, remedy

under Article 226 cannot be granted.

The third important question of law which arose in this petition is that when a land owner fails to seek remedy within time frame in terms of

Section 18 of the Act, can he seek condonation of delay in terms of Section 5 of the Limitation Act? The reply is in negative for the following

reasons:

Section 18 of the Act provides how and when a reference is to be made. The land owner has to receive the amount under protest and to file

application for making reference within the time frame prescribed by the Act. Admittedly, at the cost of repetition, petitioners had not done so.

Virtually, he has waived his right of making reference and his right of making reference stands extinguished.

Apex Court in case titled State of Karnataka Vs. Laxuman, , has observed as under:

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 reference on the application of the claimant u/s

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 enforce-ability 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...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 u/s 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.

Apex Court in case titled The Addl. Spl. Land Acquisition Officer, Bangalore Vs. Thakoredas, Major and others, , has held that when an

application for making reference is time bared, application cannot be allowed and reference cannot be made. It is profitable to reproduce operative

part of the judgment herein:

3...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 Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts,

Hubli and Others etc., , which has stood overruled, the order of the High Court is unsustainable. The appeals are accordingly allowed, and the

application made to the Court by the respondent stands rejected.

In view of the above discussion, the writ petition merits to be dismissed which is accordingly dismissed along with all connected CMP(s).