Dismissed

Khaja Education Society Gulbarga and Anr. v. Asst Commissioner and Lao and Ors.

Karnataka HC1 Jun 2017WA/200238/2016

Case brief

AI extract

What is this about?

The High Court dismissed the writ appeal against the confirmation of the Reference Court's order dismissing a Section 18(3)(b) petition. The court held that the application for reference enhancement of compensation was belated as the notice under Section 12(2) was duly served, and thus the limitation period had run.

What did the court decide?

Writ appeal dismissed; order of learned Single Judge confirming order of Reference Court stands affirmed.

Khaja Education Society Gulbarga and Anr. Vs Asst… — Land Acquisition | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 1^ST DAY OF JUNE, 2017

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE B.A.PATIL

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WRIT APPEAL No.200238/2016 (LA-RES)

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BETWEEN:

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Khaja Education Society Kalaburagi Represented by its President Dr.Syed Shah Khusro Hussaini S/o Syed Shaha Mohd. Mohammadul Hussaini Age: 70 years, Occ: President R/o Deodi, Roza (B) Kalaburagi

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Khaja Education Society Kalaburagi Represented by its Secretary (M.A.Lateef Shareef S/o Shaik Ahed Shareef) Abdul Jaleel Khan Pathan S/o Maheboob Khan Pathan Age: 74 years, Occ: Secretary General Khaja Education Society Kalaburagi

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…APPELLANTS

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(By Sri Harshavardhan R. Malipatil, Advocate)

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AND:

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Asst. Commissioner and LAO Old DC Office Jagat, Kalaburagi

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The Executive Engineer, PWD Old Jewargi Road, Kalaburagi

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The Deputy Commissioner Kalaburagi

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…RESPONDENTS

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(By Smt. Archana P. Tiwari, AGA)

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This Writ Appeal is filed under Section 4 of the High Court Act, praying to allow the writ appeal setting aside the order of learned Single Judge dated 21.04.2016 in Writ Petition No.202682/2014 and consequently allow the writ appeal.

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This appeal coming on for preliminary hearing this day, Nagarathna, J., delivered the following:

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J U D G M E N T

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The appellants who are the petitioners in Writ Petition No.202682/2014 have assailed the legality and correctness of order dated 21.04.2016 passed by the learned Single Judge in the said writ petition.

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The appellant-petitioners filed the writ

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petition questioning order dated 25.07.2013 passed by the III Addl. Senior Civil Judge, Gulbarga dismissing Miscellaneous Petition No.39/2008 filed under Section 18(3)(b) of the Land Acquisition Act, 1894 (hereinafter, referred to as ‘the Act’, for the sake of brevity). The reason for the dismissal of the said petition was on the ground that it was not filed within a period of three years from the date of service of notice from the Assistant Commissioner under Section 12(2) of the Act.

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Briefly stated the facts are that the State issued preliminary notification under Section 4(1) of

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the Act so as to acquire 2 acres 10 guntas of land belonging to the petitioners. The preliminary notification is dated 25.05.1995. Thereafter, final notification and declaration was issued on 25.10.1996 and an award was passed awarding compensation to

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the petitioners. Thereafter, an application was filed under Section 18(2) of the Act (Karnataka Amendment) on 25.01.2008 requesting the Assistant Commissioner to refer the matter to reference court for enhancement of compensation. The Assistant Commissioner did not send the reference. Thereafter, the petitioners herein filed Miscellaneous Petition No.39/2008 under Section 18(3)(b) of the Act, praying that the Assistant Commissioner be directed to send the reference so as to seek enhancement of compensation. When the said petition was filed before the reference court, a question arose as to whether the application filed by the petitioners before the Assistant Commissioner seeking reference to the reference court was in time or not. Evidence was let in on that aspect of the matter. On the basis of the evidence on record, the reference court dismissed the petition filed under Section 18(3)(b) of the Act on

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account of delay. Being aggrieved by the dismissal of the Misc. Petition, the appellants herein filed the writ petition. The learned Single Judge after considering rival contentions and also on perusal of the records of the reference court has dismissed the writ petition. Being aggrieved by the dismissal of the writ petition, the present appeal has been preferred.

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We have heard learned counsel for the appellants and learned Additional Government Advocate for the respondents and perused the material on record.

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Appellants’ counsel contented that in the instant case the appellants did not receive the statutory notice under Section 12(2) of the Act. In the absence of service of notice the period of limitation would not run from any date as such. Therefore, the appellant-petitioners herein made an

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application in the form of protest petition seeking a reference to be made to the reference court for the purpose of enhancement of compensation under Section 18(2) of the Act read with Karnataka Amendment. That there was absolutely no delay in making the said application before the Assistant Commissioner as the petitioners had not been served with the notice under Section 12(2) of the Act. He submitted that the reference court was not right in holding that there was a delay in filing the application before the Assistant Commissioner and consequently dismissed the Miscellaneous Petition. He contended that the learned Single Judge ought to have quashed the order under Miscellaneous Petition and directed the reference court to consider the case on merits for the purpose of seeking enhancement of compensation.

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Per contra, learned Additional Government

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Advocate appearing for the respondents supported the

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order of the learned Single Judge by which dismissal of the Miscellaneous Petition by the reference court has been confirmed. She contended that the learned Single Judge on perusal of the original records secured from the reference court had categorically noted that notice under Section 12(2) of the Act was served on the petitioners as per Exhibit-R2. Apart from that, it was in the year 1996 that the Revenue Inspector has served the notice on 20.11.1996 and he was examined as RW2. Apart from that, on 19.04.2000 the petitioners while admitting the fact that the award has been passed sought for disbursement of the compensation. Therefore, the appellant-petitioners were aware of the passing of the award, but they did not seek enhancement of compensation in time and that belatedly it was sought in the year 2008. She submits that there is no infirmity in the order of the learned Single Judge, which has confirmed the order

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of the reference Court and that there is no merit in the appeal.

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Having heard learned counsel for the

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parties and on perusal of the material on record, we find that the question that arises in the appeal is whether the petitioners filed the application on 25.01.2008 belatedly for seeking reference to be made by the Assistant Commissioner before the reference Court under Section 18(2) of the Act read with the Karnataka Amendment. The said provision categorically states that an application seeking a reference for the purpose of enhancement of compensation has to be made within ninety days from the date of service of notice from the Assistant Commissioner under Sub-Section 2 of Section 12. Then, within ninety days from the date of receipt of an application, the Assistant Commissioner has to make a reference to the Court and if no such reference is

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made within ninety days from the date of receipt of the application, the applicant may apply to the reference Court to direct the Assistant Commissioner to make the reference, and the Court may direct the Assistant Commissioner to make the reference within such time as the Court may fix. In the instant case learned Single Judge has categorically found that as per Annexure-R2 there has been service of notice on the petitioners under 12(2) of the Act and Exhibit-R1 consists seal, signature and date of receiving the said notice by the employee of the petitioners society obviously representing the said society. The Revenue Inspector who served the said notice was also examined as RW.2; there has been no contra material elicited from him in his evidence. The learned Single Judge has also noted that there can be no adverse inference raised in the matter with regard to the manner of service of notice on the appellant-society.

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That apart it is noted that on 19.04.2000 (Exhibit-R6) the petitioners while admitting the passing of the order sought for disbursement of compensation. It is only thereafter that is on 25.01.2008 (Exhibit-P2) the President of the petitioners’ society filed an application under Section 18(2) of the Act read with Karnataka Amendment. Further Ex.P11 is the letter of disbursement of the amount to the petitioner society and Ex.P12 is the agreement executed by the society after receiving award amount. The reference court has noted that the said application was belated and hence, the Assistant Commissioner was not bound to send any reference on the said application to the reference court. Subsequently, when Miscellaneous Petition was filed under Section 18(3)(b) before the reference court it has concluded that when the application filed under Section 18(2) of the Act read with Karnataka

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Amendment was belated the Miscellaneous Petition under Section 18(3)(b) was not maintainable. It accordingly dismissed the petition.

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We do not find any infirmity in the order of the learned Single Judge, who on perusal of the original records, has confirmed the order of the reference Court. There being no merit in the writ appeal the same is dismissed.

No costs.

Sd/JUDGE

Sd/JUDGE

sdu

Khaja Education Society Gulbarga and Anr. v. Asst Commissioner and Lao and Ors.

Case brief

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Khaja Education Society Gulbarga and Anr. v. Asst Commissioner and Lao and Ors.

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