Delay -6500- On the part of Government litigant - Condonation of - Land ceiling proceeding - Land Tribunal holding that declarants were holding lands in excess of the ceiling limit - Writ petitions challenging the order of Tribunal by declarants and also by State - Writ by declarants withdrawn - State's writ dismissed - Review filed by State alleging fraud on the part of declarant and the Secretary of Land Tribunal - Delay of 14 years in filing the Review - Dismissal of Review Petition - Special Leave Petition - Delay in filing of 6500 days against original order and 300 days against order in Review

Held: Delay, specially in cases where large tracts of land and large sums of revenue involved, is done to protect unscrupulous litigants at the cost of public interest/public exchequer - Courts though take liberal attitude in delay by Government, yet such attitude can be extended upto a certain limit - s.5 of Limitation Act must receive liberal construction so as to advance substantial justice - In the instant case, in order to protect public justice, delay condoned, subject to payment of exemplary cost of Rs.10 Lakhs - SLP to be admitted subject to payment of the cost - Limitation Act, 1963 - s.5 - Cost - Imposition of as a condition for condonation of delay - Constitution of India, 1950 - Article 136 - Admission of SLP, subject to payment of cost - Practice and Procedure - Karnataka Land Reforms Act, 1961 - s.66(4) - Administration of justice. G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore AIR 1988 SC 897 - relied on. State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455; Nand Kishore v. State of Punjab 1995(6) SCC 614 - referred to. Case Law Reference 2008(11)SCALE 455 Referred to. Para 15 1995 (6) SCC 614 Referred to. Para 16 AIR 1988 SC 897 Relined on. Para 19 CIVIL APPELLATE JURISDICTION : Special Leave Petiton (C ) Nos. 11398-11400 of 2009 From the Judgement and Order dated 07.11.1990 of the High Court of Karnataka at Bangalore in W.P. No. 40425 of 1982, W.P. No. 10920 of 1983 and order dated 26.09.2007 in R.P. 817 of 2004 in WP No. 40425 of 1982, C/W WP No. 10920 of 1983 Sanjay R. Hegde, for the Appellant(s). REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITON (C ) NOS. OF 2009 (Arising out of CC Nos. 3324-3326 OF 2009) State of Karnataka ...Petitioner Versus Y. Moideen Kunhi( dead) by Lrs. And Ors. ...respondents JUDGMENT Dr. ARIJIT PASAYAT, J 1. The special leave petitions are directed against the judgment and order dated 7.11.1990 in Writ Petition No.40425 of 1982 and Writ Petition No.10920 of 1983 and order dated 26.9.2007 in Review Petition No.817 of 2004 passed by a learned Single Judge of the Karnataka High Court. It appears that there is a delay of more than nearly 6500 days against the original order and about 300 days so far as the review petition is concerned. 2. Before dealing with the question of delay it is necessary to take note of the State's case before the High Court. 3. The records disclose that the agricultural lands to the extent of 50.89 acres, 30.00 acres, 462.00 acres, 3485.83 were purchased through registered partnership firm M/s Y. Moideen Kunhi & Company. All the lands are sub- divisions of Sy. No.146 of Neriya Village, Puttur Taluk. 4. The declaration under Section 66 (4) of the Karnataka Land Reforms Act, 1961(hereinafter referred to as the `Act') was filed by the three partners of the firm i.e.. respondent Nos. 1,2 and 3 herein for determination of the excess holding. In the very declaration it is stated that the lands being the plantation lands, are exempted under Section 104 of the Act. It is further mentioned therein that all the declarants are the partners of the firm, having 1/3rd share in the properties purchased and that the declarants have furnished the declaration without prejudice to their contentions that the provision of the Act and the provisions of the Karnataka Ordinance No. 11 of 1975 are not applicable to the aforesaid lands. The Land Tribunal, Belthangady by the 2 order dated 27.9.1982, held that the declarants are holding the lands to an extent of 368.16 acres in excess of the ceiling limit. The tribunal opined that 2820 acres are exempted lands. After deducting the tenanted lands and exempted lands, the Tribunal ultimately held that an area of 530.16 acres has to be taken into consideration for the purpose of determining excess holding. After deducting 10 units for each of the declarants, the Tribunal held that an area of 368.16 acres is the excess land. Thereafter the Land Tribunal suo motu initiated review proceedings under Section 122 A of the Act for reviewing its order dated 27.9.1982. The review proceedings were also dropped on 10.11.1982. 5. The order of the Land Tribunal was questioned before the High Court by the three declarants in W.P. no. 40425/1982. So also the State of Karnataka challenged the order of the Land Tribunal by filing W.P. No. 10920 of 1983. During the course of hearing, the three declarants withdrew W.P. No, 40425/1982. However, W.P. No. 10920/1983 filed by the State of Karnataka was dismissed by the High Court on 7.11.1990 on merits holding that there is no error in the order passed by the Land Tribunal. 3 6. It was contended on behalf of the State that the Tahsildar being the Secretary of the Land Tribunal should have sent the declaration filed under Section 66 of the Act by the three declarants, to the Deputy Commissioner to be dealt with under the provision of Section 79B of the Act, to consider the question by the registered partnership firm is valid or not; instead he proceeded to submit the report to the Land Tribunal which has no jurisdiction to decide the question about the lands purchased by the firm, the Tahsildar should not have been merely dependant upon the certificates of the Cardamom Board and Rubber Board to conclude that the lands in question are plantation lands, the Tahsildar has fraudulently prepared the inspection report according to which he visited the lands in question within a day and that he could not visit every nook and corner of the lands in question, that the Land Tribunal should also not have entertained the declaration filed under Section 66 of the Act as the lands have been purchased and held by the registered firm, that the Tribunal also says that the members of the Land Tribunal inspected the lands within one day, which is a make believe affair; that the statement made before the High Court in W.P. No. 42774/1982 that the excess lands have been surrendered, is also a fraud practiced on the Court inasmuch as the declarants have not actually surrendered the excess lands; that the learned Judge who decided W.P. No. 10920/1983 has opined 4 that the Tahsildar being the Government official, there was no need to send notice to the State or other officials, that when the Tahsildar who is directly concerned with the case has practiced fraud, learned Judge should have issued notice to the Deputy Commissioner or Revenue Secretary; that the learned Judge while disposing of W.P. No. 10920/1983 has opined that the declarants claim the lands not as partners but in their personal capacity which is an error apparent on the face of the record as the declaration itself has been filed as the partners of firm; that fraud vitiates everything and therefore the order passed by the Tribunal as well as by the High Court in W.P. No. 10920/1983 are null and void as they are obtained by the declarants by practicing fraud. Therefore the review petition was filed. 7. Stand of the respondents on the other hand was that no fraud was committed by the respondents or by the Secretary of the Land Tribunal. Error of judgment cannot be equated to fraud and since there was a delay of 14 years in filing the review petition even after the Deputy Commissioner allegedly discovered the alleged fraud on 10.2.2003 the delay in filing the review petition which was in fact filed on 8.10.2004 has not been explained. It was their stand that non filing of the appeal by the State will not amount to fraud by the officials of the State. 5 8. The High Court found that there was no element of fraud and, therefore, the review petition was dismissed. However, liberty was given to the State or the Tribunal to get the land to the extent of 368.16 acres surrendered in accordance with law. 9. The State found that the allegation of fraud related to non surrender of the land. Stand of the respondents was that lands were surrendered by the declarants before the surveyor of the State who had accepted the possession. The High Court accepted that the land was surrendered before the Tribunal as is required under law. It was further observed that if the State felt that the lands surrendered by the respondents are not suitable, it is open to the State to initiate action under Section 67 (3A) of the Act. Liberty was given to the Tribunal or the State to initiate steps for getting the land surrendered in accordance with Section 67 by initiating necessary proceedings. 10. It is submitted by learned counsel for the appellant that this Court while dealing with an application for condonation of delay especially those filed by governments, has held that adoption of strict standard of proof sometimes fails to protect public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal. 6 11. It is submitted that many government matters are delayed by either the nature of the bureaucratic process or by deliberate manipulation of the same by taking advantage of loopholes in the conduct of litigation. 12. By way of an example only reference is invited to Chapter 3 of a report for the year 2003 of the Comptroller and Auditor General of India. The chapter entitled REVIEW ON HANDLING OF APPEAL CASES IN THE CENTRAL EXCISE DEPARTMENT reads in pertinent part as under: 3.5 Analysis of adverse decisions due to departmental lapses 3.5.1 Dismissal of Appeals on account of delay in filing of appeals 13. As per instructions issued by the Board in October 1991, the Commissioner of Central Excise, must ensure that all the documents including the original certified copy of the CEGAT order, photocopies of the order-in-original & order-in-appeal alongwith application for condonation of delay are enclosed with the proposal sent to the Board for filing civil appeal before the this court. The time limit prescribed for review by the Commissionerate is 10 days from the date of receipt of certified copy of the order. The processing of case at the Board's office includes drafting, vetting and finalisation of appeal. The jurisdictional 7 Commissioner within 60 days may file the appeal from the date of receipt of the CEGAT orders in the Commissionerate of Central Excise. 14. Test check of the records, in 16 Commissionerates of Central Excise, revealed that 32 appeals filed by the department involving revenue of Rs.50.41 crore were dismissed by this Court and 3 cases involving Rs.2.00 crore by CEGAT on account of abnormal delays in filing of the appeals. Audit scrutiny revealed that delays had occurred at all the stages viz. receipt of certified copy, submission of papers to the Board, examination of papers at Board's office, drafting of appeal by the Panel Counsel; and filing of appeal by the CCE. The total period of delay varied. from 119 to 691 days. Some of the illustrative cases are discussed below: - (i) Delay by Panel Counsel The CEGAT set aside (March 1997) an order issued by CCE in April 1992 confirming demand of Rs.29.13 crore and penalty of Rs.2 crore, against M/s. National Organic Chemicals. India Limited, in Mumbai VI Commissionerate of Central Excise, for invoking Section 11A without adequate evidence of intention to evade duty. This Court on 15 January, 1999 dismissed the appeal filed by the department against the CEGAT order dated 5 March 1997, on account of delay in filing of appeal by seven 8 months. The period of delay included four months taken by the Panel Counsel in drafting the appeal. (ii) Delay by the Board In the case of M/s. Time Pharma, involving revenue of Rs.1.83 crore , the Commissionerate of Central Excise Mumbai II (now Mumbai III) received certified copy of the CEGAT's order after 14 days on 4 February 1997 and sent comments to the Board after 23 days as against prescribed period of 10 days. Although the Board decided before 17 April 1997 to go in appeal, the appeal was filed only on 5 June 1998. This court dismissed the appeal on the ground that there was an inordinate delay of about 360 days in filing the appeal without giving any satisfactory explanation. The Commmissionerate of Central Excise attributed the delay to the Board. (iii) Supplementary appeal filed after six years Mumbai II Commissionerate of Central Excise, filed an appeal in CEGAT on 14 June, 1993 against an order of the Commissioner dated 31 March 1992 regarding irregular availment of SSI exemption and consequent availment of Modvat credit at higher rates by a group of six assessees (M/s. Azo Dye Chem and five others). The appeal was, however, filed in respect of only one assessee 9 whereas the case was against all the six manufacturing units and fourteen others being Directors and Managers of the said units. After six years, on the instructions from Junior Departmental Representative, the supplementary appeals alongwith application for condonation of delay in filing appeals against the others were filed in CEGAT on 11 October 1999 under section 35 E (4) of the Act. However, CEGAT dismissed these appeals on 21 July, 2000 borrowing a Larger Bench decision dated 12 July, 2000 in the same case where it was held that CEGAT has no power to condone the delay. The main appeal filed in time (14 June 1993) was also dismissed by CEGAT on 21 July, 2000 on the ground that no appeal had been filed against the other noticee. The revenue involved in this case was Rs.1.18 crore. (iv) Frivolous reasons for condonation In Hyderabad I Commissionerate of Central Excise, two appeals filed by the department against order of Commissioner (Appeals) on whether certain products manufactured by the assessees (M/s.Neyland Laboratories Limited and M/s. Aurbindo Pharma Ltd.) are bulk drugs under `Drugs and Cosmetics Act', were dismissed (17 August 2002) by CEGAT as time barred as there was a delay of 48 days in filing the appeals. The reasons put forth by the department that the new Collector of Central Excise needed time to familiarize to the work were not accepted. Failure to file an appeal before 10 CEGAT in time resulted in dismissal of the appeal involving revenue of Rs.81.81 lakh. 15. It is submitted that even with the introduction of safeguards against delay in the process, in an occasional case delay occurs which is inexplicable in normal circumstances. The question is whether such delay, should result in the negation of the state's claim and at the cost of the interest of the members of the public whose cause has not been carefully espoused. It is submitted by the appellant-State that in such cases, delay must be visited with consequences but the interest of the inhabitants of the State must be protected. In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it was held as follows: ....It is axiomatic that decisions are taken by officers/ agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. .....In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally 11 responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants" Further at para 15 this court held that: "... The above position was highlighted in State of Haryana v. Chandra Mani and Ors. 1996 (3) SCC 132; Special Tehsildar, Land Acquisition, Kerala v. K V.Ayisumma (1996 (10) SCC 634) and State of Nagaland v. Lipok AO and Ors. (2005 (3) SCC 752). It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and, it would result in public mischief by skilful management of delay in the process of filing an appeal." 16. This Court has in appropriate cases even condoned delays of over 30 years in filing of SLPs. In Nand Kishore v. State of Punjab 1995 (6) SCC 614 this court held: ".........13. The step of the three-member Bench so taken reveal its mind as reflected in the above proceedings. Their Lordships wanted to do substantial justice. It was thought better to advise the petitioner to file special leave petition. As we view this order, having invited the petitioner to file the special leave petition, it is no longer advisable or appropriate for us to retrace back the step put forward by the three- member Bench. It is significant to recall that the writ application was dismissed on 5-2-1962 and the moment Moti Ram Deka case appeared on the scene, the appellant or 24-2-1964, within limitation, brought forward his suit which got strengthened by Gurdev Singh case appearing within a couple of months of its filing. The appellant-special leave petitioner was thus bona fide pursuing an appropriate remedy for all these years. In these circumstances, we think that an appropriate case for 12 condonation of delay of the intervening period has been made out. We, therefore, allow CC 11644 of 1991 and condone the long durated delay in these exceptional circumstances. On doing so, we grant leave to appeal. The appeal thus arising and the Civil Appeal No. 632 of 1975 may now be disposed of together...." 17. On perusal of the explanation offered it is clear that the officials who were dealing with the matter have either deliberately or without understanding the implications dealt with the matter in a very casual and lethargic manner. It is a matter of concern that in very serious matters action is not taken as required under law and the appeals/petitions are filed after long lapse of time. It is a common grievance that it is so done to protect unscrupulous litigants at the cost of public interest or public exchequer. This stand is more noticeable where vast tracts of lands or large sums of revenue are involved. Even though the courts are liberal in dealing with the belated presentation of appeals/applications, yet there is a limit upto which such liberal attitude can be extended. Many matters concerning the State Government and the Central Government are delayed either by the nature of bureaucratic process or by deliberate manipulation of the same by taking advantage of loopholes in the conduct of litigation. Several instances have come to the notice of this Court where as noted above appeals have been filed where the revenue involved runs to several crores of rupees. It is true 13 that occasionally delay occurs which is inexplicable in normal circumstances. 18. The case at hand is a classic example where the circumstances are the same. More than 4000 acres of land are involved out of which, according to the State, nearly 3500 acres constitute forest land. Ultimately, the Court has to protect the public justice. The same cannot be rendered ineffective by skillful management of delay in the process of making challenge to the order which prima facie does not appear to be legally sustainable. 19. The expression `sufficient cause' as appearing in Section 5 of the Indian Limitation Act, 1963 (in short the `Limitation Act') must receive a liberal construction so as to advance substantial justice as was noted by this Court in G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore (AIR 1988 SC 897). Para 8 of the judgment reads as follows: "8. .......The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. 14 Therefore, in assessing what, in a particular case, constitutes "sufficient cause" for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning -- of course, within reasonable limits -- is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put government and private parties on the same footing in all respects in such matters. Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process. In the opinion of the High Court, the conduct of the law officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to Government. It relied upon and trusted its law officers. Lindley, M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed, though in a different context: "Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them." 20. Keeping in view the importance of questions of law which are involved we are inclined to condone the delay subject to payment of exemplary costs which we fix at rupees ten lakhs to be paid within a period 15 of 8 weeks to the respondents. The delay is condoned subject to the payment of the aforesaid amount as costs. After making the payment the receipt thereof shall be filed before this Court alongwith an affidavit. Only after the payment is made the special leave petitions shall be listed for admission. We make it clear that we have not expressed any opinion on the merits of the case. 21. It is imperative that the State shall immediately initiate action as available in law against every person responsible for the alleged fraud and delay in persuing the remedies, fix responsibility and recover the amount paid as costs from them. Needless to say orders shall be passed in this regard by the competent authority after grant of opportunity to the concerned person(s). If any, action under criminal law(s) is to be taken, same shall be taken. ..........................................J. (Dr. ARIJIT PASAYAT) ..........................................J. (ASOK KUMAR GANGULY) New Delhi, May 04, 2009 16

Land Acquisition: Land Acquisition Act, 1894: Section 18 (as amended and adopted in State of Karnataka)-Reference to Court-Application under S. 18(3)(b)-Limitation period-Applicability of S. 5 of the Limitation Act-Notice of award under S. 12(2) served on the claimant-Claimant filed application under S. 18(1) seeking reference within 90 days as laid down in S. 18(2)-Deputy Commissioner failed to make a reference within 90 days as laid down in S. 18(3)(a)-Claimant approached civil court under S. 18(3)(b) after 10 years-Application for condonation of delay under S. 5 of the Limitation Act also filed-Civil Judge condoned delay and directed Deputy Commissioner to make a reference-High Court refused to interfere-Correctness of-Held: On expiry of a period of three years and 90 days right of Deputy Commissioner to make a reference and that of claimant to move the court gets extinguished-Section 5 of the Limitation Act cannot be invoked to an application under S. 18(3)(b)-High Court's judgment set aside-Limitation Act, 1963, S. 5. The notice of award under S. 12(2) of the Land Acquisition Act, 1894 (as amended and adopted in the State of Karnataka) was served on the respondent-claimant. The respondent filed an application under Section 18(1) of the Act (as amended and adopted in the State of Karnataka) within 90 days as prescribed under Section 18(2) of the Act. But the Deputy Commissioner did not make a reference within 90 days as provided under Section 18(3)(a) of the Act. The respondent approached the civil court under Section 18(3)(b) of the Act after more than 10 years after receipt of the notice of the award. The respondent also filed an application for condonation of delay under Section 5 of the Limitation Act, 1963. The civil judge condoned the delay and directed the Deputy commissioner to make a reference in terms of Section 18 of the Act. In revision, the High Court refused to interfere on the ground that Section 5 of the Limitation Act had application and there was no reason to interfere with the condoning of the delay by the civil judge. Hence the appeal. The following questions arose before the Court:- (1) Whether on expiry of the period of three years and 90 days the right of the Deputy Commissioner to make a reference and that of the claimant to move the court get extinguished? (2) Whether Section 5 of the Limitation Act, 1963 can be invoked to an application under Section 18(3)(b) of the Land Acquisition Act, 1894 (as amended and adopted in the State of Karnataka)?

Allowing the appeal, the Court HELD: 1. The State Legislature by an amendment brought to Section 18 of the Land Acquisition Act, 1894 substituted the proviso to Section 18(2) by replacing the period of six weeks by a period of 90 days and making the starting point, the date of service of notice from the Deputy Commissioner under Section 12(2) of the Act. Section 18(3) was added directing that the Deputy Commissioner should make the reference to the court within a period of 90 days from the date of receipt of the application under Section 18(1) of the Act. If he failed to do so within the period of 90 days, the party was given a right under Section 18(3)(b) of the Act to apply to the court to direct the Deputy Commissioner to make the reference and the court was conferred the power to direct the Deputy Commissioner to make the reference within such period as may be fixed by the court. [543-d-f] 2. No time for applying to the court in terms of Section 18(3) of the Act is fixed by the statute. But since the application is to the court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963 would be attracted and the application has to be made within three years of the application for making a reference or the expiry of 90 days after the application. [544-d-e] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major, AIR (1994) SC 2227, Kerala State Electricity Board v. T.P. Kunhaliumma, [1976] 4 SCC 634 and Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal, [1969] 9 SCC 414, relied on. Special Land Acquisition Officer v. G.C. Paramraj, ILR 1991(2) Karnataka 1109, approved. 3. On a plain understanding of the Scheme of Section 18 of the Act as amended in Karnataka, it is apparent that a claimant has to make an application for reference within a period of 90 days of the service of notice under Section 12(2) of the Act. The Section casts a duty on the concerned officer to make a reference within 90 days of the receipt of the application for reference. The mere inaction on the part of the officer does not affect or straightaway extinguish the right of the claimant-applicant. The claimant is conferred the right to approach the court but he has to do so, within three years of his having made an application for reference in view of the general law of limitation. It is in this context that it has been held that the time available to a claimant for approaching the court for getting a reference made, is in all three years and 90 days from the date of the accrual of the cause of action. That accrual is when he makes an application for reference within the time prescribed by Section 18(2) of the Act. The controversy that is generated in these appeals is whether on the expiry of the said period of three years and 90 days, the right of the Deputy Commissioner to make a reference and that of the claimant to move the court get extinguished. It is to be remembered that the claimant had made his application for reference within the 90 days prescribed by the statute. Should a construction be adopted which will lead to a position that a claimant who has done his part, loses his right on the failure of the Deputy Commissioner to make the reference within 90 days of the receipt of the application for reference? That will depend on the statutory scheme. [545-g-h; 546-a-d] 4. Under the Karnataka scheme, the period for making an application for reference has been enhanced from six weeks to 90 days and the terminus a quo is the receipt of notice from the Collector under Section 12(2) of the Act. The Section proceeds further and imposes a duty on the Deputy Commissioner to make the reference to the Court within 90 days from the date of receipt of the application under Section 18( 1) of the Act. Though it may not be conclusive what one has to notice is that expression used is "shall" and not "may". The scheme does contemplate a situation where the Deputy Commissioner, in spite of the peremptory nature of the duty cast on him, still fails to make the reference within the time stipulated by Section 18(3)(a). The claimant is, therefore, given the right to approach the Court, namely, the Court that is to deal with the claim on the reference being made, to direct the Deputy Commissioner to make the reference within a time to be fixed by the Court. This right to apply to the Court which is to deal with the reference, is not available under the Central Act. [547-d-f] 5. 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 under Section 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 loses its enforceability 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. [551-e-h; 552-a-b] State of M.P. v. Bhai Lal AIR (1964) SC 1006, referred to. 6. Under the scheme .of Section 18 of the Act as in Karnataka the claimant loses his right to move the Court for reference on the expiry of three years and 90 days from the date of his making an application to the Deputy Commissioner under Section 18 (1) of the Act within the period fixed by Section 18(2) of the Act. This loss of right to move the court precludes him from seeking a remedy from the court in terms of Section 18 of the Act. This loss of right in the claimant puts an end to the right of the claimant to seek an enhancement of compensation. To say that the Deputy Commissioner can make a reference even after the right in that behalf is lost to the claimant would be incongruous. 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 Section 18(3)(a) 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 application for reference made within time under Section 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. [552-b-f] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227, relied on. Assistant Commissioner v. Laxmi Bai ILR 1987 Karnataka 2132, approved. Hanamappa v. The Special Land Acquisition Officer ILR (1998) Karnataka 4071 (FB), overruled. 7. On the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant on the scheme of Section 18, the very right to have a claim for enhancement, would come to an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference. [553-f-g] 8. The right to have a reference enforced through Court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act, 1963 would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. [554-g-h; 555-a] The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227, relied on. The Addl. Spl. Land Acquisition Officer v. Thakoredas, Major AIR (1994) SC 2227 and Assistant Commissioner v. Laxmi Bai, ILR (1987) Karnataka 2132, approved. Sanjay R. Hegde, Anil K. Mishra, A. Rohen Singh and N. Ganpathy, (NP) for the Appellant. K. Radhakrishnan and Mrs. K. Sarada Devi for the Respondent No. 1566/2001. 2006 AIR 24 , 2005(4 )Suppl.SCR535 , 2005(8 )SCC709 , 2005(8 )SCALE768 , 2005(9 )JT89 CASE NO.: Appeal (civil) 2024 of 1999 PETITIONER: STATE OF KARNATAKA RESPONDENT: LAXUMAN DATE OF JUDGMENT: 25/10/2005 BENCH: CJI R.C. LAHOTI,G.P. MATHUR & P.K. BALASUBRAMANYAN JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NOs. 4459/1999, 607-609/2000, 5547/2000, 1566/2000 and 1567/2001 P.K. BALASUBRAMANYAN, J. All these appeals involve questions connected with the scope and effect of Section 18 of the Land Acquisition Act as amended and adopted in the State of Karnataka. The brief facts leading to the appeals are as under. CIVIL APPEAL NO.2024 OF 1999 The State challenges the order of the learned Single Judge of the Karnataka High Court in Civil Revision Petition No.3682 of 1995 by which the learned Judge dismissed the revision filed by the State challenging the order of the Civil Judge, being the land acquisition court, purporting to condone the delay in filing an application under Section 18(3)(b) of the Land Acquisition Act, as amended in Karnataka. The notice of the award under Section 12(2) of the Act was served on the claimant on 6.1.1984. Under Section 18(2) of the Act, the claimant had 90 days from the date of service of that notice, to seek a reference under that Section for enhancement of compensation. The respondent claimed that an application under Section 18(1) of the Act seeking a reference was filed on 15.3.1984, within 90 days of 6.1.1984, but the reference was not made by the Deputy Commissioner within 90 days thereafter as enjoined by Section 18(3)(a) of the Act. The claimant approached the civil court under Section 18(3)(b) of the Act only in April 1994, more than 10 years after the receipt of the notice of the award. The claimant also purported to file an application for condoning the delay in making the application. This was in view of the fact that it had been held that an application to the court under Section 18(3)(b) of the Act had to be made within three years of the expiry of 90 days of the date of making an application seeking a reference for enhancement of compensation. The State opposed the application for condoning the delay on the ground that Section 5 of the Limitation Act had no application and that, in any event, no ground was made out for condoning the long delay of ten years in filing the application. The civil judge proceeded to condone the delay and proceeded to direct the Deputy Commissioner to make a reference in terms of Section 18 of the Act. In revision, the High Court refused to interfere on the ground that Section 5 of the Limitation Act had application and there was no reason to interfere with the condoning of the delay by the civil judge. The High Court apparently without even a verification, merely accepted the evidence of PW 1 that he had made an application within 90 days of the receipt of the notice of the award under Section 12(2) of the Act. Feeling aggrieved by that order, this appeal by special leave has been filed by the State. CIVIL APPEAL NO.4459 OF 1999 In this case, the civil judge dismissed the application made under Section 18(3)(b) of the Act by the respondent on the ground that the application was barred by limitation. This order of the civil judge was challenged in an appeal before the District Judge. It is not clear under what provision such an appeal was filed, since under Section 54 of the Land Acquisition Act as amended in Karnataka no appeal is provided to the District Court from such an order of the civil judge and an appeal is provided only against the award. The appellate court is seen to have held that Section 5 of the Limitation Act was applicable and the learned civil judge was in error in dismissing the application for compelling the reference under Section 18(3)(b) of the Act without deciding the prayer for condonation of the delay in filing that application. This order of the District Judge was challenged in revision before the High Court. The High Court held that Section 5 of the Limitation Act had application and declined to interfere with the order of remand made by the Additional District Judge. The High Court, thus, dismissed the revision filed by the State. Aggrieved by this order, the State has come up with this appeal by special leave. CIVIL APPEAL NOs.607-609 of 2000 In the first case it appears that the application for reference under Section 18(1) of the Act itself was made only two years after the award. Another seven years thereafter an application for compelling a reference was made under Section 18(3)(b) of the Act. The civil judge dismissed the application on the ground that it was out of time. Ten years thereafter, the claimant filed a revision as C.R.P. No.1505 of 1997 before the High Court. The High Court ignored the delay of ten years in filing the revision in a somewhat cavalier manner and allowing the revision remitted the reference application to the Land Acquisition Court for entertaining the application under Section 18(3)(b) of the Act. The others were cases of a similar nature. In all of them there was considerable delay in making the application for reference and also delay in approaching the court. In these revisions also, same lack of application of mind was exhibited by the High Court and the revisions were allowed and the applications remitted. The common order thus passed, is subjected to challenge in these appeals. CIVIL APPEAL NO.5547 OF 2000 The State challenges the order of the High Court passed under the same circumstances leading to the challenge in C.A. No.4459 of 1999. Here the application for compelling a reference was dismissed on the ground that it was out of time. The District court permitted the claimant to file an application under Section 5 of the Limitation Act and directed its consideration. The High Court refused to interfere. CIVIL APPEAL NO.1567 OF 2001 In this appeal, the State of Karnataka challenges the order in Civil Revision Petition No.956 of 1998. In this case also the civil judge dismissed the application under Section 18(3)(b) of the Act in view of the fact that it was not within time. An appeal was purported to be filed by the claimant under Order 43 Rule 1 of the Code of Civil Procedure. The same was allowed and the matter was remanded. Against the order of the District Court, the revision was filed by the State challenging the competence of the order. The High Court refused to interfere based on the same reasons it had adopted in the order giving rise to Civil Appeal No.4459 of 1999. Feeling aggrieved, the State has filed this appeal by special leave. CIVIL APPEAL NO.1566 OF 2001 This appeal challenges the decision of the Full Bench of the Karnataka High Court which by a majority held that even though the right to the claimant to apply for compelling a reference under Section 18(3)(b) of the Land Acquisition Act, as amended in the State of Karnataka may be lost, the Deputy Commissioner could still make a reference even if it be after ten years, if he so chose and that in such a situation, the court could also compel a reference notwithstanding that the period for applying for reference has expired. The State challenges the above view adopted by the Full Bench by a majority and contends that the minority view holding that once the right to the claimant to apply has come to end, the question of reference does not arise, is the correct one and deserves to be accepted. 2. Section 18 of the Land Acquisition of the Act, 1894 (for short "the Act") as amended by Act 68 of 1984 provided that a person interested in a land acquired and who has not accepted the award of compensation by the Collector, could apply to the Collector for a reference of his claim within six weeks of the date of the award if he was present at the time of making of the award and within six weeks of the notice from the Collector under Section 12(2) of the Act if he was not so present. In a case that may not be covered by either of the above situations, the claimant has to make his application within six months of the date of the award of the Collector. The State Legislature by an amendment brought to Section 18 of the Act substituted the proviso to Section 18(2) by replacing the period of six weeks by a period of 90 days and making the starting point, the date of service of notice from the Deputy Commissioner under Section 12(2) of the Act. Sub-section (3) was added directing that the Deputy Commissioner should make the reference to the court within a period of 90 days from the date of receipt of the application under sub-section (1) of Section 18 of the Act. If he failed to do so within the period of 90 days, the party was given a right under Section 18(3)(b) of the Act to apply to the court to direct the Deputy Commissioner to make the reference and the court was conferred the power to direct the Deputy Commissioner to make the reference within such period as may be fixed by the court. For the purpose of convenience it will be better to quote the section as amended in the State of Karnataka: "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 determination of the court, whether his objection be to the measurement of the land, the amount of the compensation, the person 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 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 sub-section (2) of Section12. 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." The court to which the application was to be made was the principal civil court of original jurisdiction. 3. As can be seen, no time for applying to the court in terms of sub-section (3) is fixed by the statute. But since the application is to the court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963, would be attracted and the application has to be made within three years of the application for making a reference or the expiry of 90 days after the application. The position is settled by the decision of this Court in The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (AIR 1994 SC 2227). It was held: "Admittedly, the cause of action for seeking a reference had arisen on the date of service of the award under Section 12(2) of the Act. Within 90 days from the date of the service of notice, the respondents made the application requesting the Deputy Commissioner to refer the cases to the Civil Court under Section 18. Under the amended sub-section 3(a) of the Act, the Deputy Commissioner shall, within 90 days from September 1, 1970 make reference under Section 18 to the Civil Court which he failed to do . Consequently, by operation of sub-section 3(b) with the expiry of the aforestated 90 days, the cause of action had accrued to the respondents to make an application to the Civil Court with a prayer to direct the Deputy Commissioner to make a reference. There is no period of limitation prescribed in sub-section 3(b) to make that application but it should be done within limitation prescribed by the Schedule to the Limitation Act. Since no Article expressly prescribed the limitation to make such application, the residuary article under Article 137 of the Schedule to the Limitation Act gets attracted. 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 Municipal Corporation of Athani (AIR 1969 SC 1335), which has stood overruled, the order of the High Court is unsustainable." This position is also supported by the reasoning in Kerala State Electricity Board vs. T.P. Kunhaliumma ( 1976 (4) SCC 634). It may be seen that under the Central Act sans the Karnataka amendment there was no right to approach the principal civil court of original jurisdiction to compel a reference and no time limit was also fixed for making such an approach. All that was required of a claimant was to make an application for reference within six weeks of the award or the notice of the award, as the case may be. But obviously the State Legislature thought it necessary to provide a time frame for the claimant to make his claim for enhanced compensation and for ensuring an expeditious disposal of the application for reference by the authority under the Act fixing a time within which he is to act and conferring an additional right on the claimant to approach the civil court on satisfying the condition precedent of having made an application for reference within the time prescribed. 4. A statute can, even while conferring a right, provide also for a repose. The Limitation Act is not an equitable piece of legislation but is a statute of repose. The right undoubtedly available to a litigant becomes unenforceable if the litigant does not approach the court within the time prescribed. It is in this context that it has been said that the law is for the diligent. The law expects a litigant to seek the enforcement of a right available to him within a reasonable time of the arising of the cause of action and that reasonable time is reflected by the various articles of the Limitation Act. 5. On a plain understanding of the scheme of Section 18 of the Act as amended in Karnataka, it is apparent that a claimant has to make an application for reference within a period of 90 days of the service of notice under Section 12(2) of the Act. The section casts a duty on the concerned officer to make a reference within 90 days of the receipt of the application for reference. The mere inaction on the part of the officer does not affect or straightaway extinguish, the right of the claimant-applicant. The claimant is conferred the right to approach the court but he has to do so, within three years of his having made an application for reference in view of the general law of limitation. It is in this context that it has been held that the time available to a claimant for approaching the court for getting a reference made, is in all, three years and 90 days from the date of the accrual of the cause of action. That accrual is when he makes an application for reference within the time prescribed by Section 18(2) of the Act. The controversy that is generated in these appeals is whether on the expiry of the said period of three years and 90 days, the right of the Deputy Commissioner to make a reference and that of the claimant to move the court, get extinguished. It is to be remembered that the claimant had made his application for reference within the 90 days prescribed by the statute. Should a construction be adopted which will lead to a position that a claimant who has done his part, loses his right on the failure of the Deputy Commissioner to make the reference within 90 days of the receipt of the application for reference? That will depend on the statutory scheme. If we construe the provision as conferring on the litigant a further right to approach the court for getting the matter referred, in case a Deputy Commissioner fails to make a reference within 90 days of the receipt of the application, we have prima facie to say that on his failure to approach the court and get the reference made, he would lose his right to have a reference for enhancement of compensation. Obviously, the mischief that was sought to be averted by the Legislature was the causing of undue delay by Deputy Commissioners in making references and the making of highly belated references, sometimes based on applications clandestinely received long after the award itself had been made. If we keep this object in view, the conclusion possible is that, if a claimant does not get his claim referred to the court within three years of his making the application before the Deputy Commissioner within the period fixed and the accrual of a cause of action, his right to claim enhancement of compensation would get extinguished. In the context of Section 28A of the Act, there will be no irreparable prejudice caused to the claimant since he can always make a claim for more based on any enhancement of award by a court in any other reference arising out of the acquisition under the same notification. The difference may be only in the matter of interest and the like. 6. Section 18 of the Land Acquisition Act as amended in Karnataka is self contained. The amendments substantially alter the position as obtaining under Section 18 of the Central Act. Under the Central Act, there is only an obligation on the claimant who is not satisfied with the award of compensation and receives it under protest, to make an application to the Collector for making a reference of his claim for enhancement to the Court and to ensure that his application is made within the time provided under sub-Section (2) of that Section. In other words, once an application has been made for making a reference for enhancement, no further right is conferred on him, except, may be that he can approach the High Court in its writ jurisdiction, seeking the issue of a writ of mandamus directing the Collector to perform the duty imposed on him by Section 19 of the Act, by making an appropriate reference. Even in such a case, it is open to the High Court to decline to issue a writ as sought for by a claimant, when the approach to the High Court is unduly delayed or the petitioner is guilty of latches. 7. Under the Karnataka scheme, the period for making an application for reference has been enhanced from six weeks to 90 days and the terminus a quo is the receipt of notice from the Collector under Section 12(2) of the Act. The Section proceeds further and imposes a duty on the Deputy Commissioner to make the reference to the Court within 90 days from the date of receipt of the application under Section 18(1) of the Act. Though it may not be conclusive what one has to notice is that expression used is "shall" and not "may". The scheme does contemplate a situation where the Deputy Commissioner, in spite of the peremptory nature of the duty cast on him, still fails to make the reference within the time stipulated by sub-Section 3(a) of Section 18. The claimant is, therefore, given the right to approach the Court, namely, the Court that is to deal with the claim on the reference being made, to direct the Deputy Commissioner to make the reference within a time to be fixed by the Court. This right to apply to the Court which is to deal with the reference, is not available under the Central Act. 8. Whatever might have been the controversy in the High Court in that regard, after the decision of this Court in The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (supra), the time for approaching the court under Section 18(3)(b) of the Act stands crystalised. The application has to be made within three years of the expiry of 90 days from the date of application under Section 18(1) of the Act made by the claimant. If the application is not made within that time the right to move is lost. In that case, the court dismissed the application under Section 18(3)(b) of the Act. We have, therefore, to proceed on the basis that the remedy of approaching the court under Section 18(3)(b) of the Act gets extinguished on the expiry of the period limited therefor. 9. This Court has also held that in proceedings under the Land Acquisition Act before the authorities under that Act, Section 5 of the Limitation Act has no application (See Officer on Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996 (9) SCC 414). Therefore, Section 5 of the Limitation Act cannot be resorted to while making an application under Section 18(1) of the Act and the application has to be made within the period fixed by Section 18(2) of the Act. 10. The Division Bench of the High Court in Special Land Acquisition Officer vs. G.C. Paramraj (ILR 1991(2) Karnataka 1109) held that the reference court has not only the power, but also the duty, to consider whether the reference was time barred and therefore invalid. It also held that Article 137 of the Limitation Act applies to an application under Section 18(3)(b) of the Act, a position approved by this Court. Then the Division Bench held that the power to make a reference under Section 18(3) subsists till the right of the party to make an application before the court seeking a direction to the Deputy Commissioner to make a reference exists and from this it followed that there is no power in the Deputy Commissioner to make a reference thereafter and if such a reference is made by the Deputy Commissioner, it is invalid. An application to the court not made within 3 years after the expiry of 90 days from the date of the application under Section 18(1) of the Act, had to be rejected in limini. The Division Bench laid down the law thus:- "It is a well recognized rule of construction that in order to ascertain the true meaning of a provision the intention of the Legislature, as ascertainable from the language of the provision is the safe guide. From the amendment of Section 18, it is clear that in addition to the time limit of 90 days fixed in Section 18, the Legislature intended to create a duty in the Deputy Commissioner to make a Reference within 90 days and further if within the said period the Deputy Commissioner/Land Acquisition Officer failed to make a Reference, to confer a right on the party to make an application before the Court seeking a direction to the Deputy Commissioner to make the Reference. If that right is not exercised by the party within time, then the right ceases. Once the right of the party to get a Reference is time barred, it would be incongruous to hold that the Deputy Commissioner can still make a Reference, at any time even after decades. In our view, it is reasonable to construe the provision to mean that the date on which the right of the party to get a Reference comes to an end would also be the date on which the power of the Deputy Commissioner to make Reference comes to an end. We are not persuaded to agree with the construction suggested for the respondent that the power of the Officer continues even after the right of the party comes to an end and continues for ever. It means even after an application made before the Court after three years is rejected as the Court is powerless to entertain a time barred application, the Deputy Commissioner would have the power to make a Reference, nullifying the order of the Court rejecting the application as time barred. Such a construction would lead to a situation in which in one case the Deputy Commissioner could make a Reference if he so desires and in another he could refuse to do so, if he so desires, in which even the party would be helpless. In other words, the Deputy Commissioner could act according to his whims and fancies. It is difficult to agree that the Legislature intended to bring about such a result. Further, such a construction which brings about anomalous and incongruous results and gives ample scope for nepotism, favouritism and corruption, should not be given. We have come across several References made after two decades, particularly after several additional benefits were conferred by Amending Act 68 of 1984 amending the Land Acquisition Act. In our opinion, the correct view to take is, just as the party loses the right to the Reference if no application is made within 90 days in terms of Section 18(2), the party, who had made an application within 90 days loses the right to secure a Reference if he fails to make an application within three years after the expiry of 90 days from the date of the Reference application and consequently the power of the Deputy Commissioner/Land Acquisition Officer to make Reference comes to an end. We are, therefore, of the view that the date of cessation of the Deputy Commissioner to make the Reference also constitutes the date of cessation of power of the Deputy Commissioner. To put it in a nutshell the latter comes to an end on the date on which the former ends and the award of the Land Acquisition Officer becomes final. Therefore, neither the party can seek a Reference nor the Deputy Commissioner can make the Reference after the expiry of 3 years and 90 days from the date of the Reference application." 11. In view of some differences of opinion that subsequently arose mainly because of the failure to appreciate the reasoning of the Division Bench as above, the question was referred to a Full Bench. The Full Bench, by a majority has overturned the above view. That decision of the Full Bench is reported as Hanamappa vs. The Special Land Acquisition Officer (ILR 1998 Karnataka 4071). That decision is challenged in Civil Appeal No.1566 of 2001. 12. While one of the Judges agreed with the position exponded by the Division Bench in G.C. Paramraj (supra), two of the learned Judges proceeded to hold that the Division Bench in G.C. Paramraj (supra) did not lay down the correct law. It is seen that while holding so, the court stated that there was no mandatory obligation on the Deputy Commissioner to make a reference within 90 days as provided under Section 18(3)(b) of the Act and there is no provision for loss of right in the claimant once he had made an application for reference under Section 18(1) of the Act within the time prescribed by Section 18(2) of the Act. The consequences flowing from the claimant not seeking to enforce his right under Section 18(3)(b) of the Act in a case where the reference was not made within the time mandated by the statute was got over by invoking the theory that there was no provision for extinguishment of the right and that a party cannot be penalised for the failure of the Deputy Commissioner to make the reference. The majority stated that the decision in The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (supra) rendered by this Court would not in any manner suggest that the view they are adopting was erroneous. The question whether the expression "shall" used in Section 18(3)(a) of the Act made it mandatory for the Deputy Commissioner to make a reference within 90 days or whether the provision was only directory was discussed at length. The presiding Judge, on the other hand, adopted the approach made in Paramraj's case and held that there was no reason to reconsider the view expressed therein. The learned Judge noticed that even in the matter of issue of a writ of mandamus under Article 226 of the Constitution of India, in State of M.P. vs. Bhai Lal (AIR 1964 SC 1006) this Court had held that after the expiry of the period of limitation and on the ground of uncondonable laches, the same cannot be sought for or issued. 13. The majority, in our view, was not justified in mixing up the position obtaining under Section 18 of the Central Act and the position obtaining under Section 18 of the Act as amended in Karnataka. The Court had to consider the scheme of Section 18 as obtaining in Karnataka, the scope of the relevant provisions and the consequences arising from it, unaffected by what might be the position under Section 18 of the Central Act. Section 18 of the Act as in Karnataka, in fact, confers additional rights on a claimant by providing an extended time for making a claim for reference, possibly considering the situation available in the State and a further right on the claimant to approach the Land Acquisition Court for directing a reference to it, based on the application already made by him before the Deputy Commissioner. The High Court, in our view, erred in proceeding on an enquiry as to whether the obligation under Section 18(3)(a) of the Act on the Deputy Commissioner was mandatory or directory. In fact, if one were to go by the use of the expression "shall", and the introduction of Section 18(3)(b) and the right conferred thereunder, there is no difficulty even in taking the view that it is mandatory for the Deputy Commissioner to make the reference within 90 days of receipt of the application for reference. When he fails to perform the mandate of the statute, the provision gives the claimant a right to approach the Court which could compel the reference to be made by the Deputy Commissioner who had failed to perform his duty under Section 18(3)(a) of the Act and in that process, even award costs of the proceedings against the Deputy Commissioner, and in appropriate cases, to be recovered from him personally. But what is relevant is not the question whether the duty cast on the Deputy Commissioner under Section 18(3)(a) of the Act as in Karnataka is mandatory or it is directory. On its scheme, the Deputy Commissioner is expected to make the reference within 90 days of the receipt of the application. On his failure to do so, the claimant has to approach the Land Acquisition Court for getting the matter referred. 14. 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 under Section 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 enforceability 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. Under the scheme of Section 18 of the Act as in Karnataka, thus the claimant loses his right to move the Court for reference on the expiry of three years and 90 days from the date of his making an application to the Deputy Commissioner under Section 18 (1) of the Act within the period fixed by Section 18(2) of the Act. This position is now settled by the decision of this Court in The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (supra). This loss of right to move the court precludes him from seeking a remedy from the court in terms of Section 18 of the Act. This loss of right in the claimant puts an end to the right of the claimant to seek an enhancement of compensation. To say that the Deputy Commissioner can make a reference even after the right in that behalf is lost to the claimant, would be incongruous. 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 under Section 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. 16. The object of bringing in Section 18 in the amended form in Karnataka has been highlighted in the decisions of that Court. The object was to ensure that under-hand deals did not take place in the office of the Deputy Commissioner and to prevent belated applications and predated applications being received by his office and references made, years after the acquisition is completed. The object was also to ensure that all matters in connection with an acquisition were completed within a reasonable time and claims for enhancement did not hang like Damocles sword over the Government or over a company for the benefit of which the acquisition is undertaken. Therefore, any interpretation based on which the Deputy Commissioner is given the power to revive a claim which has become unenforceable, would defeat the very purpose for which Section 18 in the form in which it is, was enacted in the State of Karnataka. The majority in the full bench was, therefore, in error in thinking that the Deputy Commissioner could make a reference at any time at his sweet-will and pleasure, notwithstanding the fact that the right to move the court in that behalf has been lost to the claimant himself. 17. The majority, in our view, has not properly appreciated the position highlighted in the decision of that Court in Assistant Commissioner Versus Laxmi Bai [I.L.R. 1987 Karnataka 2132) that the power to make a reference under Section 18 (3) subsists till the right of the party to make an application before the Court seeking a direction to the Deputy Commissioner to make a reference exists and that the cessation of the right of the party to apply to the court for seeking a direction to the Deputy Commissioner to make a reference, is also the point at which the power of the Deputy Commissioner to refer, ceases. We think that this position logically emerges from the scheme of Section 18 of the Act as adopted in Karnataka. 18. The language of Section 18 is plain as indicated by the High Court. But the question is what is the scheme that has been formulated by Section 18 of the Act vis-`-vis a claim for enhancement. The scheme under Section 18 in Karnataka is a departure from the Central Act and the scheme in Karnataka has to be understood, based on the provisions in Section 18 as in Karnataka and the consequences emerging from it. The question whether the time fixed under Section 18(3)(a) is mandatory or directory and whether time fixed for performance of a duty is generally considered directory or mandatory are all questions that may not have much relevance in the context of the scheme of Section 18 of the Act. Whether mandatory or directory, on the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant, on the scheme of Section 18, the very right to have a claim for enhancement, would come to an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference. 19. The High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from the reference court regarding the reference made to that court for enforcement of his claim for enhanced compensation, it is for the claimant to move the concerned court for getting a reference made in terms of Section 18 of the Act. If he gets intimation from the reference court about the lodging of the reference, obviously, it becomes unnecessary for him to approach the court for compelling a reference. But in a case where he gets no intimation from the reference court about the reference having been made, it is for him to invoke the jurisdiction of the reference court under Section 18(3)(b) of the Act within the time prescribed therefor by law. The extinguishment of the remedy by way of moving the civil court is not dependent on receipt or otherwise of an intimation from the Deputy Commissioner about the fate of his application for reference. 20. The view we have taken, after all, does not deprive a claimant who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the time prescribed therefor in respect of land covered by the same notification. 21. Then the question is, whether in the context of Section 18 of the Karnataka amendment, the decision of this Court in Thakoredas (supra) and our discussion as above, Section 5 of the Limitation Act could be invoked or would apply to an application under Section 18(3)(b) of the Act. This Court has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept that position. Then arises the question whether Section 5 could be invoked before the Land Acquisition Court while making an application under Section 18(3)(b) of the Act. We have held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this aspect. 22. An application under Section 18(3)(b) of the Act is to compel a reference by the Deputy Commissioner. We have held that on the expiry of three years and 90 days from the date of the application for reference seeking enhancement the right of the Deputy Commissioner to make the reference comes to an end. In that context, and in the context of the fact that the claimant himself loses his right to move the court for compelling a reference, it is not possible to hold that by invoking Section 5 of the Limitation Act before the Land Acquisition Court the claimant can get over the bar to the remedy created by Section 18 of the Act. We are, therefore, of the view that Section 5 of the Limitation Act would have no application while approaching the court under Section 18(3)(b) of the Act and if the application is not within the time as indicated above, the same has only to be dismissed as was done in Thakoredas's case (supra). 23. In the light of our discussion as above, we hold that the High Court was in error in holding that the Deputy Commissioner could make a reference even after the expiry of three years and 90 days from the date of the application for reference made by the claimant within the time prescribed by Section 18(2) of the Act. We uphold the view of the High Court in Paramraj's case (supra) that the remedy having become barred the right could not thereafter be enforced. In that context, we hold that the claimant while approaching the court under Section 18(3)(b) of the Act would not be entitled to invoke Section 5 of the Limitation Act. In the light of these, we allow these appeals and set aside the orders of the High Court. We dismiss the applications for reference made by the claimants. We also uphold the view of the Land Acquisition Court that a reference made beyond the expiry of three years and 90 days from the date of application for reference by the Deputy Commissioner is incompetent. We hold that the respondents are not entitled to claim any enhancement by recourse to Section 18 of the Act. In the circumstances we make no order as to costs.

CONSTITUTION OF INDIA, 1950: Articles 226 and 227 - High Court in writ jurisdiction setting aside orders of trial and revisional courts whereby they had rejected defendant's application under Or.8 r.10 CPC for extending time to file written statement =HELD: Jurisdiction of High Court under Articles 226 and 227 is limited - It could have set aside the orders only on the ground of illegality, irrationality and procedural impropriety - Trial court had assigned sufficient and cogent reasons in support of its orders - High Court erred in setting aside the orders without assigning any reason therefor - Judgment of High Court set aside - Code of Civil Procedure, 1908 - Or. 8, r.10. R.N. Jadi & Brothers and Ors. Vs. Subhashchandra (2007) 6 SCC 420 and M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. 2007 (5) SCALE 171, relied on. Kailash Vs. Nanhku and Ors. (2005) 4 SCC 480, referred to. Case Law Reference: (2005) 4 SCC 480 referred to para 11 2007 (5) SCALE 171 relied on para 13 (2007) 6 SCC 420 relied on para 13 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7209 of 2008. From the final Judgment and Order dated 20.9.2007 of the High Court of Judicature at Allahabad in Writ Petition No. 45197 of 2007. R.S. Hegde, Chandra Prakash and P.P. Singh for the Appellant. M.P. Shorawala, Jyoti Saxena, Vipin K. Saxena and T.N. Saxena for the Respondents.

, , , 2009(1 )SCALE71 , REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7209 OF 2008 (Arising out of S.L.P. (C) No.3311/2008) Mohammed Yusuf ...Appellant Versus Faij Mohammad & Ors. ...Respondents O R D E R Leave granted. 1. This appeal is directed against a judgment and order dated 20.9.1997 passed by a learned Single Judge of the High Court of Judicature at Allahabad allowing the writ petition filed by the respondents herein questioning the validity of an order dated 29.8.2007 passed by the learned Additional District Judge, Mathura in Civil Revision No. 322/2005 affirming the order dated 24.10.2005 passed by the learned Civil Judge whereby and whereunder while rejecting the application filed by the appellant herein under Order 8 Rule 10 of the Code of Civil Procedure, a date was fixed for recording the evidence of the plaintiffs and the application filed by the respondents herein praying for condoning the delay in filing the written statement was rejected. 2. The basic fact of the matter is not in dispute. 3. Appellant herein filed a suit for a decree for permanent injunction in the year 2002. A separate application -1- for grant of temporary injunction was also filed. Summons upon the defendants were served on 6.7.2002. The defendants appeared through their learned advocate on 19.7.2002. 4. Appellant filed an application for grant of temporary injunction which was rejected on 28.1.2004. An appeal was preferred thereagainst which was disposed of by an order dated 14.5.2004. It is neither in doubt nor in dispute that the defendants- respondents filed applications for extension of time for filing written statement number of times. The matter was also adjourned on one ground or the other. 5. On or about 31.1.2005, the appellant also filed an application before the learned trial Judge for pronouncing judgment in terms of Order 8 Rule 10 of the Code of Civil Procedure, inter alia, on the premise that the defendants-respondents did not file any written statement. It is on the same date the defendants filed an application for filing written statement. No application for condonation of delay in filing the written statement was, however, filed. 6. However, on 23.9.2005, as indicated hereinbefore by reason of an order dated 24.10.2005, while rejecting the said application of the respondent, the trial Judge allowed the plaintiff to examine his own witnesses in support of his case. -2- 7. A Revision Petition was filed by the respondents which by reason of an order dated 29.8.2007 was dismissed by the learned District Judge. 8. Being aggrieved by and dissatisfied with the said order, the respondents filed a Writ Petition which was marked as CMWP No. 45197/2007 before the High Court. By reason of the impugned judgment, the High Court has allowed the said Writ Petition, directing: " Considering the facts and circumstances of the case, this Court is of the opinion that the petitioner should be permitted to contest the suit on merit. In view of the aforesaid, the order of the trial court refusing to keep the written statement on record is set aside. The written statement shall be kept on the record and the defendant-petitioner shall be permitted to contest the matter on merit subject to payment of cost of Rs.10,000/-, which shall be deposited by the defendant- petitioner in favour of the plaintiff by means of a bank draft within two weeks. The amount so deposited can be withdrawn by the plaintiff. The writ petition is allowed." 9. Mr. R.S. Hegde, learned counsel appearing on behalf of the appellant would submit that keeping in view the fact that the summons upon the defendants were served on 6.7.2002 and no step having been taken to file written statement for a period of three years and only on 31.5.2005, an application for filing written statement having been filed, the High Court committed a serious error in passing the impugned judgment. 10. Learned counsel appearing on behalf of the respondents, on the other hand, would contend that from a -3- perusal of the order-sheet before the trial Court, it would appear that dates after dates were fixed for filing written statement and, furthermore, having regard to the fact that the appellant himself preferred an appeal before the learned District Judge against an order rejecting his application for grant of temporary injunction, the written statement could not be filed. 11. It is urged that the provisions of Order 8 Rule 1 of the Code of Civil Procedure having been held to be directory in nature by this Court in Kailash Vs. Nanhku and Ors. - (2005) 4 SCC 480, this Court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India. 12. Order 8 Rule 1 of the Code of Civil Procedure reads thus: " [1. Written statement:- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.] 13. Although in view of the terminologies used therein the period of 90 days prescribed for filing written statement appears to be a mandatory provision, this Court in Kailash(supra) upon taking into consideration the fact that in a given case the defendants may face extreme hardship in -4- not being able to defend the suit only because he had not filed written statement within a period of 90 days, opined that the said provision was directory in nature. However, while so holding this Court in no uncertain terms stated that defendants may be permitted to file written statement after expiry of period of 90 days only on exceptional situation. The question came up for consideration before this Court in M. Srinivasa Prasad & Ors. Vs. The Comptroller & Auditor General of India & Ors. - 2007 (5) SCALE 171, wherein a Division Bench of this Court upon noticing Kailash (supra) held as under: " 7. Since neither the trial Court nor the High Court have indicated any reason to justify the acceptance of the written statement after the expiry of time fixed, we set aside the orders of the trial Court and that of the High Court. The matter is remitted to the trial Court to consider the matter afresh in the light of what has been stated in Kailash's case(supra). The appeal is allowed to the aforesaid extent with no order as to costs." 14. The matter was yet again considered by a three-judge Bench of this Court in R.N.Jadi & Brothers and Ors. Vs. Subhashchandra - (2007) 6 SCC 420. P.K. Balasubramanyan J., who was also a member in Kailash(supra) in his concurring judgment stated the law thus: " 14. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs. Nanhku which held that the provision was directory and not mandatory. But there could be situations where even a procedural provisional could be construed as mandatory, no doubt retaining a power in the Court, in an appropriate case, to exercise a jurisdiction to -5- take out the rigour of that provision or to mitigate genuine hardship. It was in that contest that in Kailash Vs. Nanhku it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time-limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statement, after the expiry of the period permitted by law, in a routine manner. 15. A dispensation that makes Order 8 Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasise that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule 1 must be adhered to and that only in rare and exceptional case, will the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen Vs. Sir Alfred McAlpine & Sons that law's delay have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?" 15. In view of the authoritative pronouncements of this Court, we are of the opinion that the High Court should not have allowed the writ petition filed by the respondent, particularly, when both the learned trial judge as also the Revisional Court had assigned sufficient and cogent reasons in support of their orders. 16. As indicated hereinbefore, the High Court allowed the writ petition and thereby set aside the orders passed by the -6- trial Court as also the Revisional Court without assigning any reason therefor. The jurisdiction of the High Court under Article 226 and 227 of the Constitution of India is limited. It could have set aside the orders passed by the learned trial Court and the Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety. The High Court did not arrive at a finding that there had been a substantial failure of justice or the orders passed by the trial Court as also by the Revisional Court contained error apparent on the face of the record warranting interference by a superior Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 17. For the reasons stated above, the impugned judgment of the High Court cannot be sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances of this case, there shall be no order as to costs. 18. In this view of the matter the respondents would be entitled to withdraw the sum of Rs.10,000/- deposited by them as costs. ......................J. [S.B. SINHA] .....................J [ CYRIAC JOSEPH ] New Delhi, December 2, 2008. -7-

Apex court condon the 10 years delay in filing ..= In our opinion, in view of the facts narrated by us, the High Court has erred in rejecting the Letters Patent Appeal on the ground of delay and latches on the part of the appellant in approaching the court nearly after 10 years of passing the impugned order. 16) The High Court has also rejected the Letters Patent Appeal, on the ground that the wives of the original declarant Gelabhai had no right over the land and, therefore, they could not have executed any Will in favour of the applicant bequeathing the lands in question. This reasoning of the Division Bench of the High Court is also not correct in view of the orders passed by Mamaltdar, who had recognized the rights of the wives of the original declarant, who had died during the pendency of the proceedings before him and that finding has become final, since the respondents have not questioned the same before any superior forums. The impugned order is set aside. The matter is remitted back to the High Court, with a request to

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7365 OF 2009 (Arising out of SLP(C) No. 11281 of 2006) Haribhai Lakhmanbhai Seedhav ..........Appellant Versus State of Gujarat & Ors. ........Respondents WITH CIVIL APPEAL NO. 7366 OF 2009 (Arising out of SLP(C) No. 11368 of 2006) Bhavanbhai Lakhmanbhai Seedhav ..........Appellant Versus State of Gujarat & Ors. ........Respondents JUDGMENT H.L. Dattu,J. S.L.P(C) No. 11281 of 2006 Leave granted. 2) This appeal has been filed against the judgment of Gujarat High Court dated 17.4.2006 in MCA No. 892 of 2006 in Letters Patent 1 Appeal No. 832 of 2006, wherein and whereunder, the application for grant of leave to prefer Letters Patent Appeal is dismissed, firstly, on the ground that the wives of the original declarant had no right, title or interest over the land and, therefore, the Will executed by them in favour of the appellant would not give him any right in the land, secondly, on the ground of delay and latches in filing the appeal nearly after ten years from the date of the judgment and order passed in the writ petition by the learned Single Judge. 3) This case has a chequered history. Reference to all those proceedings may not be necessary for the disposal of this appeal. Suffice to notice the events and the orders passed by the authorities under Gujarat Agricultural Land Ceiling Act, 1960 and the High Court on or after the year 1986. 4) Sri Gelabhai Bhagwanbhai (hereinafter referred to as `Gelabhai'), resident of Village Adariyana, Taluka : Dasada, District : Surenderanagar, Gujarat, was an agriculturist and was owning large extent of agricultural lands at Adariyana Village. During his life time, he had filed an application on 27.9.1976, under Section 8 of the Gujarat Agricultural Land Ceiling Act, 1960, (hereinafter 2 referred to as `the Act') before the competent authority under the Act. The order passed under the Act was the subject matter of several rounds of litigations before various forums under the Act. During the pendency of these proceedings, the original declarant, Gelabhai expired on 17.1.1979, leaving behind his two wives. He had no sons or daughters. After the death of Gelabhai, the property vested with the wives. The two widows of Gelabhai, Smt. Samuben and Smt. Puriben expired on 18.6.1991 and 7.7.2000 respectively, but during their life time, they had executed General Power of Attorney in favour of Parmabhai Bhagwanbhai, resident of Village: Adariyana, Taluka: Dasada, District: Surendranagar, Gujarat. Both the widows before their demise had also executed a Will in favour of their nephew, Sri Sindhav Bhavanbhai Laxmanbhai, who is the appellant in this appeal. 5) Pursuant to the order passed by the Revenue Tribunal dated 21.1.1986 in Revision Application TEN/BA No. 1254 of 1984, the Mamlatdar and Agricultural Land Tribunals, Patdi, by his order dated 1st day of August, 1986, declared that the legal heirs of the original declarant are entitled to hold 54.00 Acres of unirrigated lands out of the total extent of 89.04 Acres and the excess lands of 3 nearly 35.04 Acres is to be treated surplus land and requires to be surrendered to the State Government from the date of the order free from all encumbrances, however, subject to provisions of Section 21(2) and Section 19 and Chapter 8 of Land Ceiling Act. The Mamlatdar also recognized that the heirs of the original declarant were entitled to hold the highest ceiling of one unit of land. 6) Dissatisfied with the order passed by the Mamlatdar dated 1.8.1996, the appellant had filed Ceiling Appeal No. 1/90-91 before the Deputy Collector, Dhangdhra Sub-Division, Dhangdhra. The Deputy Collector rejected the Ceiling Appeal vide order dated 30.3.1991, holding that the order of the Mamlatdar declaring land measuring 35 Acres 04 Gunthas to be surplus, was in consonance with the provisions of the Act. 7) Being aggrieved by the said order dated 30.3.1991, the legal heirs of the original applicant had filed Revision Application No. TEN.BA/404/91 before the Gujarat Revenue Tribunal as provided under Section 38 of the Gujarat Agricultural Lands Ceiling Act, 1961. The Tribunal vide its order dated 14.6.1993, partly allowed the revision application by holding that "except transfer in respect of 4 Sy. No. 276 (A.5 Gs. 28-3/4), the rest of the transfers are to be ignored in accordance with Sections 7 and 8 of the Act". As a result of such order, the land measuring 5 Acres 28-3/4 Gs., was ordered to be excluded from the holding of Gelabhai and the matter was remanded back to the Mamlatdar for declaration of net area of surplus land and further a direction was issued to the Mamlatdar to give an opportunity to the declarant/landholders to exercise their option regarding selection of the surplus land to be surrendered and then to take possession of the surplus land. 8) Being aggrieved by the order dated 14.6.1993, the legal heirs of Gelabhai along with others filed a writ petition before the High Court in Special Civil Application No. 806 of 1993. The High Court by its order dated 4.4.1996 dismissed the Writ Petition. 9) The office of the Mamlatdar addressed a letter dated 29.9.2004 to the Power Attorney holder of legal heirs of the deceased Gelabhai and requested him to inform the latest status of Special Civil Application No. 8064 of 1993. It is apparent that even the State Government was not aware of the order dated 4.4.1996 passed by the High Court. The Power Attorney holder by his letter dated 5 11.10.2004, informed the Mamlatdar that with the demise of both the legal heirs of Gelabhai, he had ceased to be their Power Attorney holder and had nothing to do with the dispute pending before various forums. 10) The appellants and others were served with a notice dated 30.10.2006, under Rule 10 of the Ceiling Rules by the office of the Mamlatdar, whereby they were informed that they were in possession of some lands which had been declared surplus land under the Ceiling Act in the hands of Gelabhai and they were directed, apart from others, to submit any objections or suggestions with regard to the surplus lands within one month from the receipt of the notice; to select such part or such parts which they wish to continue to possess; and to submit the details of the land selected within one month. 11) The appellant who claims to be the beneficiary under the Will, said to have been executed by both the wives of the original declarant, filed Letters Patent Appeal, inter alia, challenging the order passed by learned Single Judge in SCA No. 8064 of 1993, along with an 6 application for leave to appeal being MCA No. 892 of 2006 and also an application for condonation of delay in filing the appeal. 12) The Division bench of Gujarat High Court vide its order dated 17.4.2006, dismissed the application MCA No. 892 of 2006, inter alia, holding that the wives of Gelabhai had no right over the land and, if any Will was executed in favour of the appellant, no right over the land could have been conferred by such a will and, lastly, leave to file appeal cannot be granted against an order dated 4.4.1996 after a lapse of 10 years. 13) We have heard Sri L. Nageshwar Rao, learned Senior Counsel for the appellant and Smt. Hemantika Wahi, learned counsel for the respondent. Learned Senior Counsel for the appellant submitted that the High Court was in error in rejecting the application filed by the appellant for grant of leave to file the appeal against the order passed by the learned Single Judge on the ground of delay and laches on the part of the appellant in approaching the court nearly after ten years from the date of passing the impugned order and, secondly, the wives of late Gelabhai, the original declarant, had no title, right or interest over the land and even, if any, Will was 7 executed in favour of the appellant, the same did not confer any right over the land in view of the provisions of the Ceiling Act. The learned counsel for the respondent justifies the impugned order passed by the High Court. 14) We do not propose to go into the question on the merits of the main appeal, in view of the course, we propose to adopt while disposing of this appeal, which is primarily against the order passed by the Division Bench of the High Court rejecting the application filed for leave to appeal against the order passed by the learned Single Judge in SCA No. 8064 of 1993 dated 04.04.1996. 15) The first issue is, whether there was any delay in filing the application for grant of leave to prefer Letters Patent Appeal in the facts and circumstances of the case. The original declarant Gelabhai Bhagwanbhai expired on 17.1.1979, leaving behind his two wives Smt. Samuben and Smt. Puriben who had inherited the property of the declarant. Since they did not have their own sons and daughters, they had executed the General Power of Attorney in favour of Shri Parambhai Bhagwanbhai and others, not only to manage the affairs of vast extent of agricultural lands, and also several litigations 8 pending before various forums including the authorities under the Land Ceiling Act. The facts which are not in dispute and which cannot be disputed would reveal that the Power of Attorney holders were prosecuting the lis before various forums diligently. They had also filed SCA No. 8064 of 1993 before the learned Single Judge of Gujarat High Court challenging the order passed by the Gujarat Revenue Appellate Tribunal. It has also come on record, that, during their life time, they had executed a Will in favour of their nephew Sri Sindhav Bhavanbhai Laxmanbhai, and they were not aware of the execution of the Will in their favour till the year 2002 and, therefore, they could not take possession of the lands in question till 2002. These details, in our view, may not be crucial factors for deciding these appeals, but they are noticed only for narration of completion of factual matrix. The question is whether, the appellants who claim that they have some interest, right and title in the land were not aware of the disposal of the SCA No. 8064 of 1993 dated 4.4.1996. The answer to this issue is not a vexed issue, since, firstly, appellant was not a party to the proceedings before the High Court nor was aware of the proceedings pending before the High Court, since the affairs of litigation of the ceiling proceedings 9 of the lands in question was taken care of by the General Power Attorney holders of the wives of the original owner of the lands. It is the case of the applicant that after the demise of the wives of the declarant, the General Power of Attorney holder had not participated in the pending proceedings before the High Court. It is also brought on record the letter from the office of Mamlatdar dated 29.9.2004, addressed to the Power of Attorney holder of the legal heirs of Gelabhai to inform them the status of the proceedings pending before the High Court. It only demonstrates that even the respondents were not aware of the dismissal of the writ petition, though they were parties in the writ petition. If this was the state of affairs, what to say about the applicant who was not even a party to any of the proceedings either before the Revenue authorities or before the High Court. Therefore, the assertion made, that they came to know the dismissal of the writ petition filed by General Power of Attorney holder, only when they were served with notice dated 30.1.2006 under Rule 10 of the Ceiling Rules by the office of Mamlatdar. The applicant/appellant within a reasonable period thereafter has taken steps to file Letter Patent's appeal accompanied by an application for grant leave to file the appeal and also an 10 application for condonation of delay in filing the appeal. In our opinion, in view of the facts narrated by us, the High Court has erred in rejecting the Letters Patent Appeal on the ground of delay and latches on the part of the appellant in approaching the court nearly after 10 years of passing the impugned order. 16) The High Court has also rejected the Letters Patent Appeal, on the ground that the wives of the original declarant Gelabhai had no right over the land and, therefore, they could not have executed any Will in favour of the applicant bequeathing the lands in question. This reasoning of the Division Bench of the High Court is also not correct in view of the orders passed by Mamaltdar, who had recognized the rights of the wives of the original declarant, who had died during the pendency of the proceedings before him and that finding has become final, since the respondents have not questioned the same before any superior forums. 17) In view of the above discussion, we cannot sustain the impugned order passed by the Division Bench of Gujarat High Court. 18) In the result, the appeal is allowed. The impugned order is set aside. The matter is remitted back to the High Court, with a request to 11 restore the Letters Patent Appeal No. 832 of 2006 on its board and decide the appeal on merits. In the facts and circumstances of the case, parties are directed to bear their own costs. S.L.P.(C) No. 11368 of 2006 Leave granted. In view of the judgment in the abovesaid Civil Appeal No......../2009 arising out of S.L.P.(C) No. 11281 of 2006 pronounced today by us, the appeal is allowed and the parties are directed to bear their own costs. .......................................J. [ D.K. JAIN ] .......................................J. [ H.L. DATTU ] New Delhi, November 05, 2009. 12