IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO. 240 OF 2009
IN
FIRST APPEAL NO. 826 OF 2003
WITH
FIRST APPEAL NO. 814 OF 2003
WITH
FIRST APPEAL NO. 815 OF 2003
WITH
FIRST APPEAL NO. 816 OF 2003
WITH
FIRST APPEAL NO. 817 OF 2003
WITH
FIRST APPEAL NO. 818 OF 2003
ig WITH
FIRST APPEAL NO. 819 OF 2003
WITH
FIRST APPEAL NO. 820 OF 2003
WITH
FIRST APPEAL NO. 821 OF 2003
WITH
FIRST APPEAL NO. 822 OF 2003
WITH
FIRST APPEAL NO. 823 OF 2003
WITH
FIRST APPEAL NO. 824 OF 2003
WITH
FIRST APPEAL NO. 825 OF 2003
WITH
FIRST APPEAL NO. 827 OF 2003
WITH
FIRST APPEAL NO. 828 OF 2003
WITH
FIRST APPEAL NO. 829 OF 2003
WITH
FIRST APPEAL NO. 830 OF 2003
WITH
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FIRST APPEAL NO. 831 OF 2003
WITH
FIRST APPEAL NO. 832 OF 2003
WITH
FIRST APPEAL NO. 833 OF 2003
WITH
FIRST APPEAL NO. 834 OF 2003
WITH
FIRST APPEAL NO. 835 OF 2003
WITH
FIRST APPEAL NO. 836 OF 2003
WITH
FIRST APPEAL NO. 837 OF 2003
WITH
FIRST APPEAL NO. 838 OF 2003
ig WITH
FIRST APPEAL NO. 839 OF 2003
WITH
FIRST APPEAL NO. 840 OF 2003
Gajiram Pundlik Gawane )
Dhonu Bhika Gawane )
Kacharu Bandu Gawane )
Bvarku Bala Navtri )
Baburao Kondaji Gawane )
Keru Bhika Gawane )
Dhoneu Banaji Gawane )
Trimbak Kushaba Mali )
Pandurang Yesu Gawane )
Dattu Devaram Gawane )
Sakharam Soma Bhagat )
Shankar Tukaram Kshirsagar )
Avadu Bhau Mali )
Kashinath Ramchandra Gawane )
Pandurang Bhika Gawane )
Tukaram Kanhu Bhagat )
Nathu Banaji Gawane )
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Laxman Chandan Kashikar )
Ramkrishna Tribak Gawane )
Bhausaheb Shankar Gawane )
Vithoba Savliram Gawane )
Lahanu Ramchandra Gawane )
Sadu Punja Gawane )
Rambhau Bandu Gawane )
Namdeo Bandu Gawane )
Dnyaneshwar Damodhar Gawane )
Madhukar Govind Kshirsagar )..... Appellants.
versus
The State of Maharashtra through )
the Special Land acquisition Officer )........ Respondents.
Mr. P. N. Joshi adv. for the Applicant/Appellant
Mr. A.R. Patil AGP for Respondent no.1..
CORAM: A. P. DESHPANDE, J.
DATED : 2nd FEBRUARY, 2009.
JUDGMENT:
1. These appeals, filed by the claimants, involve the common
question of fact and law and hence all the appeals were heard
together and are being disposed of by this common judgment.
2. Few facts, that are necessary to decide the question raised
in these appeals, are narrated hereinbelow:
3. The lands of the appellants from village
Sherwal/Kanchangaon, Taluka Igatpuri, District Nashik were acquired
for Minor Irrigation Project under the provisions of the Land
Acquisition Act. Section 4 notification was issued on 27.01.1993 and
the award came to be declared on 21.10.2005. The appellants who
received the amount of compensation under protest filed the
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applications under Section 18 of the Land Acquisition Act for making
reference to the Civil Court. The Collector made the references. One
of the main questions raised before the Reference Court was touching
the bar of limitation. The Reference Court accepted the objection
raised by the respondent/State that filing of the applications under
Section 18 of the Land Acquisition Act were barred by limitation.
While dealing with the question of limitation following observations are
made:-
“In this case, if we read the contention of
the reference/Exh.1, para 3, it makes clear that theAward was declared on 21.10.1995 but the notices
u/s 12(2) of the Act were issued on 29.07.1996onwards requiring the claimants to appear on
29.07.1996 and the claimants have accepted the
amounts under protest. Further, if we go through theevidence on record i.e. the Statement Exh.4, it
shows that some of the claimants have received the
compensation much earlier then 29.07.1996 i.e. On
05.07.1996 and some claimants have received theamounts on 30.08.1996, 31.08.1996. But the fact
remains that the claimants had constructiveknowledge that they should appear for accepting the
amounts on 29.07.1996 and therefore, the
claimants ought to have filed their claims on or
before 09.09.1996, but all these claims are filed on14.10.1996. The claimant namely Vithoba Savaliram
Gawane has stated that though the notices were
issued on 29.07.1996, but such notices were served
on them in the month of September 1996. Therefore,
the burden lies on the claimants to prove that thenotices were served on them in the month of
September to show that thereafter, the claims are
filed and they are within limitation. But except the
bare words of the claimants, there is no iota of
evidence on record to show that the notices were
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1996. On the contrary, the evidence on record i.e.
Statement Exh.4 is sufficient to hold that the
claimants have received the amounts in the month of
July 1996 and thus, looking to the legal provisions, Ihave come to the conclusion that all these
references are time barred and therefore, theclaimants are not entitled to get the compensation as
prayed for and in the result, I pass the following
order:”
4. Thus, what has been held is that the appellants had
“constructive knowledge” that they should appear for accepting the
amounts on 29.07.1996. The question, thus, arises is as to what
would be the limitation for filing the reference applications under
Section 18 of the Land Acquisition Act. The Reference Court has held
that the limitation would be 42 days and thus, dismissed the
references.
5. Learned counsel for the appellants contended that if the
basis for adjudicating the issue is “constructive knowledge” then the
limitation would be six months from the date of the “constructive
knowledge” and not 42 days as held by the Reference Court. It is
undisputed that the present appeals are not covered by Section 18(2)
(a) or the first part of sec. 18(2)(b), but squarely fall within the later
part of sub-section (2)(b) of Section 18. For proper appreciation of
Section 18 of the Land Acquisition Act, it is reproduced below :-
“18. Reference to Court:- (1) Any person
interested who has not accepted the award may, by
written application to the Collector, require that the
matter be referred by the Collector for the
determination of the Court, whether his objection be to
the measurement of the land, the amount of the
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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:-
(a) if the person making it was present or
represented before the Collector at the time when he
made his award, within six weeks from the date of the
Collector’s award;
(b) in other cases, within six weeks of the
receipt of the notice from the Collector under Section
12, sub-section (2), or within six months from the date
of the Collector’s award, whichever period shall firstexpire.”
6.
Learned counsel for the appellants in support of their
contentions have placed reliance on the judgment in case of
Parsottambhai Maganbhai Patel and another vs. State of Gujarat,
2005(7)SCC 431 and to be more precise on paragraph Nos.6 and 7,
wherein it is observed thus :-
“6. Learned counsel for the appellants
rightly placed reliance upon the judgment of this Court in
Raja Harish Chandra Raj Singh v. Dy. Land Acquisition
Officer and submitted that since the appellants were not
present when the award was made, and no notice wasgiven to them under Section 12(2) of the Act, the
application for making a reference under Section 18 of
the Act must be held to be within time if it is filed within
six months of the date of knowledge of the declaration of
the award. In our view, the submission is sound and mustbe accepted. This Court in Raja Harish Chandra Raj
Singh was dealing with a case in which an award was
declared under the Act on 25.03.1951. No notice under
Section 12(2) of the Act was given to the claimants. It
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know about the declaration of the award whereafter they
filed an application claiming a reference under Section 18
of the Act on 24.02.1953. The High Court of Allahabad
held that the case fell under the latter part of clause (b)of the proviso to Section 18 and since the application
made by the appellants before the Land AcquisitionOfficer for claiming a reference under Section 18 was
made beyond six months from the date of the award in
question, it was beyond time. This view of the High Court
was overruled by this Court and in doing so the Courtmade the following pertinent observations:
“Therefore, if the award made by the Collector
is in law no more than an offer made on behalf of the
Government to the owner of the property then themaking of the award as properly understood must involve
the communication of the offer to the party concerned.
That is the normal requirement under the contract law
and its applicability to cases of award made under the
Act cannot be reasonably excluded. Thus considered the
date of the award cannot be determined solely by
reference to the time when the award is signed by the
Collector or delivered by him in his office; it must involve
the consideration of the question as to when it was
known to the party concerned either actually or
constructively. If that be the true position then the literal
and mechanical construction of the words ‘ the date of the
award’ occurring in the relevant section would not be
appropriate.
There is yet another point which leads to the
same conclusion. If the award is treated as an
administrative decision taken by the Collector in the
matter of the valuation of the property sought to be
acquired it is clear that the said decision ultimately
affects the rights of the owner of the property and in that
sense, like all decision which affect persons, it is
essentially fair and just that the said decision should be
communicated to the said party. The knowledge of the
party affected by such a decision, either actual or
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constructive, is an essential element which must be
satisfied before the decision can be brought into force.
Thus considered the making of the award cannot consist
merely in the physical act of writing the award or signing
it or even filing it in the office of the Collector; it must
involve the communication of the said award to the party
concerned either actually or constructively. If the award
is pronounced in the presence of the party whose rights
are affected by it, it can be said to be made when
pronounced. If the date for the pronouncement of the
award is communicated to the party and it is accordingly
pronounced on the date previously announced the award
is said to be communicated to the said party even if the
said party is not actually present on the date of its
pronouncement. Similarly if without notice of the date of
its pronouncement an award is pronounced and a party
is not present the award can be said to be made when it
is communicated to the party later. The knowledge of the
party affected by the award, either actual or constructive,
being an essential requirement of fair play and natural
justice the expression ‘ the date of the award’ used in the
proviso must mean the date when the award is either
communicated to the party or is known by him either
actually or constructively. In our opinion, therefore, it
would be unreasonable to construe the words ‘ from the
date of the Collector’s award’ used in the proviso to
Section 18 in a literal or mechanical way.”
7. This Court, therefore, held that the
limitation under the latter part of Section 18(2)(b) of the
Act has to be computed having regard to the date on
which the claimants got knowledge of the declaration of
the award either actual or constructive. This principle,
however, will apply only to cases where the applicant was
not present or represented when the award was made, or
where no notice under Section 12(2) was served upon
him. It will also apply to a case where the date for the
pronouncement of the award is communicated to the
parties and it is accordingly pronounced on the date
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previously announced by the Court, even if, the parties
are not actually present on the date of its
pronouncement. Coming to the facts of the instant case
the High Court has not rejected the plea of the appellants
that they came to know of the award only when
compensation was being paid to them in July 1988. They
had admittedly no notice under Section 12(2) of the Act.
They had therefore filed the application under Section 18
of the Act on 22.09.1988 well within the period of
limitation. The Reference Court recorded a finding in
favour of the appellants but the High Court has reversed
that finding without applying the principle laid down in
Raja Harish Chandra. Moreover, we find from the
grounds of appeal filed before the High Court that the
assertion of the claimants that they came to know of the
declaration of the award only when compensation was
being paid to them in July 1988 has not even been
challenged.”
7. From the above observations, it is amply clear that if the
case falls within the later part of Section 18(2)(b), the limitation would
six months. Section 18(2)(b) clearly reveals that when it is a case of
“constructive knowledge”, the limitation would be six months. Thus,
the Trial Court has committed an illegality in dismissing the references
on the ground that the same are barred by limitation.
8. Both the learned counsel appearing for the respective
parties contended that as the issue of limitation has not been properly
considered and as the references are decided mainly on the point of
limitation, the matters need to be remanded back.
9. Hence, the impugned awards are quashed and set aside.
The cases are remanded back to the Reference Court for retrial. It is
made clear that the parties shall be entitled to lead the further
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evidence if any touching the question of limitation. The Reference
Court shall decide the Land References Nos. 404, 405, 407, 408,
409, 410, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423,
424, 425, 426, 427, 428, 429 & 430 all of 1996 as expeditiously as
possible and preferably within a period of six months from today.
There shall be no order as to costs.
10. In view of the disposal of the appeals Civil Application does
not survive and the same is also disposed of.
(A. P. DESHPANDE, J.
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