ORDER
Hari Nath Tilhari, J.
1. As these seven Revision Petitions involve same question of law and same set of circumstances, these Revision Petitions are being decided and disposed of by one common Order and let a copy of this Order be placed in each of the Revision Petitions as C.R.P.No. 1343 of 1995 is being made and taken as the leading case.
2. Heard Sri R.K. Hatti, learned High Court Government Pleader, appearing on behalf of the Revisionist and Sri M.N. Gadag, learned Counsel appearing on behalf of the respondent.
3. The main point which has been urged by the learned High Court Government Pleader on behalf of the Revisionist for consideration is that in these Cases the application under Section 18(1) of the Land Acquisition Act (hereinafter referred to as the Act) for referring the matter to the Civil Court has been made after the expiry of the period of limitation and, as the application under Section 18(1) of the Act has been made beyond the period of limitation, the Civil Court should not have passed the impugned order under Section 18(3)(b) of the Act and, therefore, the learned Government Pleader submitted that the Court below committed a jurisdictional error in allowing the application filed by the present respondent, i.e., the applicant in the Land Acquisition Case, under Section 18(3)(b) of the Act and in directing the present Revisionist, the Land Acquisition Officer, to refer the application of the respondent under Section 18(1) of the Act within one month from the date of the order of the Court below. It has been urged by the learned Government Pleader that the Land Tribunal granted occupancy right to the respondent on 28.8.1992 and that the Award has been passed in respect of the land on 25.3.1969 and that the application under Section 18(1) of the Act was filed by the respondent only on 8.1.1993 and that the application under Section 18(3)(b) of the Act was filed on 24.4.1993, i.e., fifteen days after the expiry of the period of limitation of 90 days from the date of filing the application under Section 18(1) of the Act within which the Deputy Commissioner failed to refer the matter to the Civil Court. Further the learned Government Pleader urged that on 8.1.1993 the respondent took the compensation amount and only on that day the respondent moved the application under Section 18(1) of the Act for reference to the Civil Court. He also urged that the application under Section 18(1) of the Act was much barred by limitation and that application was made almost after a lapse of 24 years from the date of the Award. He further urged that the Court below committed an error in taking the view that the application under Section 18(1) of the Act was within time as well as in holding that no notice of the Award or filing of the Award had been served on the opposite party, i.e., the applicant and that the Court below further erred in raising an adverse presumption against the Revisionist that the notice under Section 12(2) of the Act was not served on the respondent and as such illegally recorded the finding to the effect that the application under Section 18(1) of the Act for reference was within time. Further he submitted that as such the application under Section 18(3)(b) of the Act was not maintainable. Further, the order of the Civil Court is in any way erroneous, as allowing of the application under Section 18(3)(b) of the Act is the result of exercising the jurisdiction not vested in the Civil Court as the application under Section 18(1) of the Act was made beyond the period of limitation. The learned Government Pleader further pointed out the bona fides of the State by submitting that the amount awarded to the applicant, the respondent herein, had been deposited by the Land Acquisition Officer on 28.3.1992 and 27.7.1992 and that the respondent was earlier an Inamdar and occupancy rights have been granted to him by the Land Tribunal on 28.8.1992.
4. The contentions urged on behalf of the Revisionist by the Government Pleader were hotly contested by Sri M.N. Gadag, the learned Counsel for the opposite party/the Respondent. He submitted that one of the essential ingredients and conditions is knowledge that the Award made, is to be communicated to the applicant by serving the notice of the making of such Award on the applicant. The learned Counsel for the respondent submitted that no such notice as required under Section 12(2) of the Act had been served on the respondent and unless and until it is served the period of limitation for filing the application under Section 18(1) of the Act does not commence or arise. He submitted that the Court below only on a proper appreciation of the evidence held that no notice as required under Section 12(2) of the Act had been served on the persons interested and that finding is a simple finding of fact He submitted that, as the notice under Section 12(2) of the Act had not been served on the applicant, the application under Section 18(1) of the Act could not be filed by him (the applicant) and as soon as making of the Award came to his knowledge, i.e., on 8.1.1993, he filed the application and, therefore, from the date of knowledge of making the Award the application under Section 18(1) of the Act has been within time and, when the Deputy Commissioner did not make reference of the matter to the Civil Court within the period of 90 days, the interested person, i.e., the respondent herein, moved the Civil Court under Section 18(3)(b) of the Act within a period of 3 years from the date of expiry of 90 days during which there has been a failure on the Deputy Commissioner to make the reference to the Civil Court and as such Sri Gadag, the learned Counsel for the respondent, submitted that the Civil Court did not commit any jurisdictional error, when it passed the order under Section 18(3)(b) of the Act directing the Land Acquisition Officer to make a reference of the case to it.
5. On behalf of both sides, a number of Cases have been cited. I have applied my mind to those Rulings relied upon by the parties.
6. The material provisions of the Act for the purpose of this case are Section 12 and Section 18 as amended by the Land Acquisition (Mysore Extension and Amendment) Act, 1961 (Karnataka Act No. 17 of 1961). Section 12 as amended reads as under:
'12. Award of Deputy Commissioner when to be final. -
(1) Such award shall be filed in the Deputy Commissioner's office and shall, subject to the provisions of Section 15-A and except as hereinafter provided be final and conclusive evidence as between the Deputy Commissioner and the persons interested, whether they have respectively appeared before the Deputy Commissioner or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2) The Deputy Commissioner shall give immediate notice of his award, or the amendment thereof made under Section 12A, to the persons interested.'
As per the amended Act the Deputy Commissioner shall give immediate notice of his Award or the amendment to the Award made under Section 12A of the Act to the persons interested. It should be mentioned herein, before I proceed further, that under Section 11 of the Act the Collector/Deputy Commissioner is required to enquire into the objections filed by the interested person. By the Amendment Act, i.e., Karnataka Act 17 of 1961, a Proviso has been added to Section 11 of the Act. The Proviso reads thus:
'Provided that no such award shall be made by the Deputy Commissioner, without the previous approval of the State Government or such officer as the State Government may appoint in this behalf who in the case of an award made by an officer below the rank of the Deputy Commissioner of a District, may be the Deputy Commissioner of the District.'
Section 18 of the Act provides for Reference to Court. Section 18 as amended by Karnataka Act 17 of 1961 reads as under:
'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 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 state the grounds on which objection to the award or the amendment is taken.'
The Proviso as amended by Karnataka Act 17 of 1961 provides that every such application shall be made within 90 days from the date of service of the notice from the Deputy Commissioner under Sub-section (2) of Section 12. Sub-section (3) has been added to Section 18 of the Act by the Karnataka Act 17 of 1961. It reads:
'(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.'
A reading of Sub-section (3) of Section 18 of the Act reveals that the interested person who makes the application under Sub-section (1) or (2) of Section 18 of the Act has to wait for a period of 90 days for the decision or order of the Deputy Commissioner in the matter of making a Reference to the Court and, if the Deputy Commissioner fails to make such a Reference within the period of 90 days from the date of the application under Section 18(1) of the Act, the interested person is entitled to make an application under Section 18(3) of the Act to the Court itself for a direction to the Deputy Commissioner to make such Reference and the Court has the power to direct the Deputy Commissioner to make the Reference within a time to be fixed by the Court.
7. There is no dispute among the parties to the case that application under Section 18(3)(b) of the Act has been moved by the respondent within the period of 3 years, as provided under Article 137 to the Limitation Act, 1963, from the date of expiry of period of 90 days during which the Deputy Commissioner is required to pass orders on the application under Section 18(1) of the Act. As regards the facts of the case, the dispute between the parties is and has been with regard to the application under Section 18(1) of the Act. The case of the Revisionist is that the application is barred by limitation as it had not been made within a period of 90 days as provided under the proviso to Sub-section (2) of Section 18 of the Act.
8. As mentioned earlier, no doubt, the Award was made on 25.3.1969. The application under Section 18(1) of the Act was given on 8.1.1993, i.e., after almost 24 years. The period of limitation for filing the application under Section 18(1) of the Act is 90 days and the starting point for computing the period of limitation, as per the Proviso to Sub-section (2) of Section 18 of the Act, is the date of service of the notice from the Deputy Commissioner under Section 12(2) of the Act. Section 12(2) quoted above is a mandatory provision which provides that the Deputy Commissioner shall give immediate notice of his Award or the amendment made under Section 12A of the Act to the person interested. So, giving of notice is sine qua non for the computation of the period of limitation and, if the notice under Section 12(2) of the Act is not sent and served, the period of limitation does not commence or the cause of action for filing the application under Section 18(1) of the Act does not arise. This aspect was the subject matter of consideration before the Supreme Court in RAJA HARISH CHANDRA RAJ SINGH v. THE DEPUTY LAND ACQUISITION OFFICER AND ANR., : [1962]1SCR676 . The original Proviso to Section 18 of the Land Acquisition Act, 1894 provided that every such application shall be made (a) if the person making it was present or represented before the Deputy Commissioner at the time when he made his award, within 6 weeks from the date of the Deputy Commissioner's award and (b) in other cases, within 6 weeks of the receipt of the notice from the Deputy Commissioner under Section 12(2) or within 6 months from the date of the Deputy Commissioner's award, whichever period shall first expire. Their Lordships in STATE OF PUNJAB v. MST. QUIZER JEHAN BEGUM AND ANR., : [1964]1SCR971 interpreting the expression 'six months from the date of the Deputy Commissioner's award' quoted with the approval of the Decision in Raja Harish Chandra's case observed that the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the Proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Their Lordships in Raja Harish Chandra's case observed that the expression 'the date of the award' should not be interpreted in a mechanical or literal way. Their Lordships further observed that communication of the order is regarded by the Legislature as necessary that Section 12(2) imposed an obligation on the Deputy Commissioner and if the relevant clause in the Proviso is lead in the light of the statutory requirement, it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate. In the case of Jehan Begum also Their Lordships after having followed with approval of the earlier Decision in Raja Harish Chandra's case observed that a literal and mechanical construction of the words 'six months from the date of the Collector's award' occurring in the second part of Clause (b) of the Proviso would not be appropriate and the knowledge of the party must be actual and constructive. Their Lordships further observed that knowledge of the award does not mean a mere knowledge of the fact that an award has been made; but the knowledge must relate to the essential contents of the award and the contents may be known either actually or constructively.
9. Keeping the above observations of the Supreme Court, on the expression 'from the date of service of the notice from the Deputy Commissioner under Sub-section (2) of Section 12' used in the Proviso to Section 18(2) of the Act as amended by Karnataka Act 17 of 1961 it has to be held that the date of the Award is not material unless there is knowledge of the Award and its contents and the date of notice is sine qua non for the purpose of computing the period of limitation. Therefore, the material question before the Court below was to consider whether the notice required under Section 12(2) of the Act was served on the respondent or not. The learned Civil Judge considered the matter in detail and on the consideration of the evidence of R.W.1 and Exhibits D-2 and D-3 the learned Civil Judge held as under:
'I have no hesitation to hold that the opponent has miserably failed to prove the service of 12(2) notice or notice of award.'
In view of this finding that notice had not been served on the respondent and the Revisionist failed to prove the service of notice under Section 12(2) of the Act, the period of limitation did not expire. The case of the respondent is that he came to know about passing of the Award only on 8.1.1993 and not earlier, in my opinion, the finding of the learned Civil Judge is a finding of fact recorded after due consideration of the evidence and the material on record.
10. The learned Government Pleader urged before me that the Civil Court erred in law in raising the adverse presumption against the Revisionist from the failure to produce material showing the date of service of the notice. He submitted that the burden was really on the claimant/the respondent to file the application under Section 18(1) of the Act within time and that the Court below illegally raised the presumption from the failure to produce the material by the Revisionist in favour of the respondent and that the burden was on the present respondent to prove that the application was in time. These contentions of the learned Government Pleader have to be well replied by reference to the law laid down by Their Lordships in T.S. MURUGESAM PILLAI v. M.D. GNANA SAMBANDHA PANDARA SANNADHI AND ORS., AIR 1917 PC 6. Their Lordships of Privy Council were pleased to observe and lay down the law which is applicable to the present case. What Their Lordships observed is as follows:
'A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice.'
(emphasis is mine)
This observation of Their Lordships of the Privy Council had been followed with approval by Their Lordships of the Supreme Court in HIRALAL AND ORS. v. BADKULAL AND ORS., : [1953]4SCR758 .
11. In the present case, the copies of the notice under Section 12(2) of the Act on which thumb impressions or signatures are and used to be taken as a token of service of the notice on the respondent, having been in possession of the Revisionist had not been produced before Court. Therefore, the Court below is right in drawing an adverse presumption in favour of the respondent and the Court below rightly held that the contention and circumstances went in support of the applicant, i.e., opposite party in Revision and did not support the case of the Revisionist. As it has been found by the Civil Court that no notice had been served, as required under Section 12(2) of the Act, on the respondent in this Revision after making of the Award by the Deputy Commissioner and the respondent is within his right to file his objections, when he got the knowledge of the Award at the time he got the compensation amount on 8.1.1993, and when he moved the application under Section 18(1) of the Act for referring the matter to Civil Court as the compensation amount was less than what he claimed, the respondent, i.e., the claimant cannot be blamed for filing that application belatedly. The order impugned in this Revision as such in my opinion does not suffer from any error of law or jurisdiction nor from any illegality, as the application under Section 18(1) of the Act was well within time and the Court below has rightly held so.
12. Accordingly, Civil Revision Petition No. 1343 of 1995 is hereby dismissed.
13. As Civil Revision Petition No. 1343 of 1995 is taken as the leading case and it has been dismissed by this Court, all other Civil Revision Petitions connected with Civil Revision Petition No. 1343 of 1995, i.e., Civil Revision Petitions Nos. 1342, 1344, 1345, 1346, 1347 and 1475 of 1995 are dismissed by this very same order.
Let a copy of this Order be placed in each of the connected Revisions referred to above also.