{"id":57488,"date":"2009-02-02T00:00:00","date_gmt":"2009-02-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rambhau-bandu-gawane-vs-the-state-of-maharashtra-through-on-2-february-2009"},"modified":"2018-08-22T00:55:48","modified_gmt":"2018-08-21T19:25:48","slug":"rambhau-bandu-gawane-vs-the-state-of-maharashtra-through-on-2-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rambhau-bandu-gawane-vs-the-state-of-maharashtra-through-on-2-february-2009","title":{"rendered":"Rambhau Bandu Gawane vs The State Of Maharashtra Through on 2 February, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rambhau Bandu Gawane vs The State Of Maharashtra Through on 2 February, 2009<\/div>\n
Bench: A.P. Deshpande<\/div>\n
    IN  THE HIGH COURT OF JUDICATURE AT BOMBAY\n                CIVIL APPELLATE  JURISDICTION\n            CIVIL APPLICATION NO. 240  OF 2009\n                             IN\n\n\n\n\n                                                            \n             FIRST   APPEAL  NO.  826   OF 2003\n                            WITH\n\n\n\n\n                                    \n                FIRST APPEAL NO. 814 OF 2003\n                            WITH\n                FIRST APPEAL NO. 815 OF 2003\n                            WITH\n\n\n\n\n                                   \n                FIRST APPEAL NO. 816 OF 2003\n                            WITH\n                FIRST APPEAL NO. 817 OF 2003\n                            WITH\n\n\n\n\n                           \n                FIRST APPEAL NO. 818 OF 2003\n                  ig        WITH\n                FIRST APPEAL NO. 819 OF 2003\n                            WITH\n                FIRST APPEAL NO. 820 OF 2003\n                \n                            WITH\n                FIRST APPEAL NO. 821 OF 2003\n                            WITH\n                FIRST APPEAL NO. 822 OF 2003\n      \n\n\n                            WITH\n   \n\n\n\n                FIRST APPEAL NO. 823 OF 2003\n                            WITH\n                FIRST APPEAL NO. 824 OF 2003\n                            WITH\n\n\n\n\n\n                FIRST APPEAL NO. 825 OF 2003\n                            WITH\n                FIRST APPEAL NO. 827 OF 2003\n                            WITH\n                FIRST APPEAL NO. 828 OF 2003\n\n\n\n\n\n                            WITH\n                FIRST APPEAL NO. 829 OF 2003\n                            WITH\n                FIRST APPEAL NO. 830 OF 2003\n                            WITH\n\n\n\n\n                                    ::: Downloaded on - 09\/06\/2013 14:17:54 :::\n                       FIRST APPEAL NO. 831 OF 2003\n                                 WITH\n                      FIRST APPEAL NO. 832 OF 2003\n                                 WITH\n\n\n\n\n                                                                     \n                      FIRST APPEAL NO. 833 OF 2003\n                                 WITH\n\n\n\n\n                                             \n                      FIRST APPEAL NO. 834 OF 2003\n                                 WITH\n                      FIRST APPEAL NO. 835 OF 2003\n                                 WITH\n\n\n\n\n                                            \n                      FIRST APPEAL NO. 836 OF 2003\n                                 WITH\n                      FIRST APPEAL NO. 837 OF 2003\n                                 WITH\n\n\n\n\n                                   \n                      FIRST APPEAL NO. 838 OF 2003\n                          ig     WITH\n                      FIRST APPEAL NO. 839 OF 2003\n                                 WITH\n                      FIRST APPEAL NO. 840 OF 2003\n                        \n    Gajiram Pundlik  Gawane           )\n    Dhonu Bhika Gawane                )\n          \n\n\n    Kacharu Bandu Gawane              )\n       \n\n\n\n    Bvarku Bala Navtri                )\n    Baburao Kondaji Gawane            )\n    Keru Bhika Gawane          )\n    Dhoneu Banaji Gawane              )\n\n\n\n\n\n    Trimbak Kushaba Mali              )\n    Pandurang Yesu Gawane             )\n    Dattu Devaram Gawane              )\n    Sakharam Soma Bhagat              )\n    Shankar Tukaram Kshirsagar        )\n\n\n\n\n\n    Avadu Bhau Mali                   )\n    Kashinath Ramchandra Gawane       )\n    Pandurang Bhika Gawane            )\n    Tukaram Kanhu Bhagat              )\n    Nathu Banaji Gawane               )\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 14:17:54 :::\n     Laxman Chandan Kashikar                     )\n    Ramkrishna Tribak Gawane                    )\n    Bhausaheb Shankar Gawane                    )\n    Vithoba Savliram Gawane                     )\n\n\n\n\n                                                                                 \n    Lahanu Ramchandra Gawane )\n    Sadu Punja Gawane              )\n\n\n\n\n                                                         \n    Rambhau Bandu Gawane                        )\n    Namdeo Bandu Gawane                         )\n    Dnyaneshwar Damodhar Gawane                 )\n    Madhukar Govind Kshirsagar                  )..... Appellants.\n\n\n\n\n                                                        \n              versus\n    The State of Maharashtra through          )\n     the Special Land acquisition Officer       )........ Respondents.\n\n\n\n\n                                             \n     Mr.  P. N. Joshi adv.   for the Applicant\/Appellant\n                               \n     Mr. A.R. Patil AGP for Respondent no.1..\n     \n                                      CORAM:  A. P. DESHPANDE,  J.\n                              \n                                      DATED :  2nd  FEBRUARY, 2009.\n\n    JUDGMENT:\n<\/pre>\n
    1.         These appeals, filed by the claimants, involve the common<\/p>\n
    question of fact and law and hence all the appeals were heard
\n    together and are being disposed of by this common  judgment.\n<\/p>\n
    2.         Few facts, that are necessary to decide the question raised<\/p>\n
    in these appeals, are narrated hereinbelow:\n<\/p>\n
    3.         The     lands      of    the     appellants         from         village
\n    Sherwal\/Kanchangaon, Taluka Igatpuri, District Nashik were acquired<\/p>\n
    for Minor Irrigation Project under the provisions of the Land
\n    Acquisition Act. Section 4 notification was issued on 27.01.1993 and
\n    the award came to be declared on 21.10.2005. The appellants who
\n    received the amount of compensation under protest filed the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n     applications under Section 18 of the Land Acquisition Act for making
\n    reference to the Civil Court. The Collector made the references. One
\n    of the main questions raised before the Reference Court was touching<\/p>\n
    the bar of limitation. The Reference Court accepted the objection<\/p>\n
    raised by the respondent\/State that filing of the applications under
\n    Section 18 of the Land Acquisition Act were barred by limitation.
\n    While dealing with the question of limitation following observations are<\/p>\n
    made:-\n<\/p>\n
                         “In this case, if we read the contention of
\n               the reference\/Exh.1, para 3, it makes clear that the<\/p>\n
               Award was declared on 21.10.1995 but the notices
\n               u\/s 12(2) of the Act were issued on 29.07.1996<\/p>\n
               onwards requiring the claimants to appear on
\n               29.07.1996 and the claimants have accepted the
\n               amounts under protest. Further, if we go through the<\/p>\n
               evidence on record i.e. the Statement Exh.4, it
\n               shows that some of the claimants have received the
\n               compensation much earlier then 29.07.1996 i.e. On
\n               05.07.1996 and some claimants have received the<\/p>\n
               amounts on 30.08.1996, 31.08.1996. But the fact
\n               remains that the claimants had constructive<\/p>\n
               knowledge that they should appear for accepting the
\n               amounts on 29.07.1996 and therefore,              the
\n               claimants ought to have filed their claims on or
\n               before 09.09.1996, but all these claims are filed on<\/p>\n
               14.10.1996. The claimant namely Vithoba Savaliram
\n               Gawane has stated that though the notices were
\n               issued on 29.07.1996, but such notices were served
\n               on them in the month of September 1996. Therefore,
\n               the burden lies on the claimants to prove that the<\/p>\n
               notices were served on them in the month of
\n               September to show that thereafter, the claims are
\n               filed and they are within limitation. But except the
\n               bare words of the claimants, there is no iota of
\n               evidence on record to show that the notices were
\n               served on the claimants in the month of September<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n                   1996. On the contrary, the evidence on record i.e.
\n                  Statement Exh.4 is sufficient to hold that the
\n                  claimants have received the amounts in the month of
\n                  July 1996 and thus, looking to the legal provisions, I<\/p>\n
                  have come to the conclusion that all these
\n                  references are time barred and therefore, the<\/p>\n
                  claimants are not entitled to get the compensation as
\n                  prayed for and in the result, I pass the following
\n                  order:”\n<\/p><\/blockquote>\n
    4.        Thus, what has been held is that the appellants had
\n    “constructive knowledge” that they should appear for accepting the
\n    amounts on 29.07.1996. The question, thus, arises is as to what<\/p>\n
    would be the limitation for filing the reference applications under<\/p>\n
    Section 18 of the Land Acquisition Act. The Reference Court has held
\n    that the limitation would be 42 days and thus, dismissed the<\/p>\n
    references.\n<\/p>\n
    5.        Learned counsel for the appellants contended that if the
\n    basis for adjudicating the issue is “constructive knowledge” then the<\/p>\n
    limitation would be six months from the date of the “constructive<\/p>\n
    knowledge” and not 42 days as held by the Reference Court. It is
\n    undisputed that the present appeals are not covered by Section 18(2)\n<\/p>\n
    (a) or the first part of sec. 18(2)(b), but squarely fall within the later<\/p>\n
    part of sub-section (2)(b) of Section 18. For proper appreciation of
\n    Section 18 of the Land Acquisition Act, it is reproduced below :-\n<\/p>\n
                       “18.   Reference   to   Court:- (1) Any person<\/p>\n
             interested who has not accepted the award may, by
\n             written application to the Collector, require that the
\n             matter be referred by the Collector for the
\n             determination of the Court, whether his objection be to
\n             the measurement of the land, the amount of the
\n             compensation, the persons to whom it is payable, or<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n              the apportionment of the compensation among the
\n             persons interested.\n<\/p><\/blockquote>\n
                        (2) The application shall state the grounds
\n             on which objection to the award is taken:\n<\/p><\/blockquote>\n
                        Provided that every such application shall be
\n             made:-\n<\/p><\/blockquote>\n
                        (a) if the person making it was present or
\n             represented before the Collector at the time when he
\n             made his award, within six weeks from the date of the
\n             Collector’s award;\n<\/p><\/blockquote>\n
                        (b) in other cases, within six weeks of the
\n             receipt of the notice from the Collector under Section
\n             12, sub-section (2), or within six months from the date
\n             of the Collector’s award, whichever period shall first<\/p>\n
             expire.”\n<\/p><\/blockquote>\n
    6.<\/p>\n
              Learned counsel for the appellants in support of their
\n    contentions have placed reliance on the judgment in case of<\/p>\n
    Parsottambhai Maganbhai Patel and another vs. State of Gujarat,
\n    2005(7)SCC 431 and to be more precise on paragraph Nos.6 and 7,
\n    wherein it is observed thus :-\n<\/p>\n
                          “6.         Learned   counsel   for   the   appellants<\/p>\n
             rightly placed reliance upon the judgment of this Court in
\n             Raja Harish Chandra Raj Singh v. Dy. Land Acquisition
\n             Officer and<\/a> submitted that since the appellants were not
\n             present when the award was made, and no notice was<\/p>\n
             given   to   them   under   Section   12(2)   of   the   Act,   the
\n             application for making a reference under Section 18 of
\n             the Act must be held to be within time if it is filed within
\n             six months of the date of knowledge of the declaration of
\n             the award. In our view, the submission is sound and must<\/p>\n
             be   accepted.   This   Court   in   Raja   Harish   Chandra   Raj
\n             Singh was dealing with a case in which an award was
\n             declared under the Act on 25.03.1951. No notice under
\n             Section 12(2) of the Act was given to the claimants. It
\n             was   only   on   12.01.1953   that   the   claimants   came   to<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n      know about the declaration of the award whereafter they
\n     filed an application claiming a reference under Section 18
\n     of the Act on 24.02.1953. The High Court of Allahabad
\n     held that the case fell under the latter part of clause (b)<\/p>\n
     of   the   proviso   to   Section   18   and   since   the   application
\n     made   by   the   appellants   before   the   Land   Acquisition<\/p>\n
     Officer   for   claiming   a   reference   under   Section   18   was
\n     made beyond six months from the date of the award in
\n     question, it was beyond time. This view of the High Court
\n     was overruled by this Court and in doing so the Court<\/p>\n
     made the following pertinent observations:\n<\/p><\/blockquote>\n
                   “Therefore, if the award made by the Collector
\n     is in law no more than an offer made on behalf of the
\n     Government   to   the   owner   of   the   property   then   the<\/p>\n
     making of the award as properly understood must involve
\n     the communication of the offer to the party concerned.\n<\/p><\/blockquote>\n
     That is the normal requirement under the contract law
\n     and its applicability to cases of award made under the<\/p>\n
     Act cannot be reasonably excluded. Thus considered the
\n     date   of   the   award   cannot   be   determined   solely   by
\n     reference to  the  time  when  the  award  is  signed by  the
\n     Collector or delivered by him in his office; it must involve<\/p>\n
     the   consideration   of   the   question   as   to   when   it   was
\n     known   to   the   party   concerned   either   actually   or<\/p>\n
     constructively. If that be the true position then the literal
\n     and mechanical construction of the words ‘              the date of the
\n     award’      occurring   in   the   relevant   section   would   not   be
\n     appropriate.\n<\/p>\n
                   There is yet another point which leads to the
\n     same   conclusion.   If   the   award   is   treated   as   an
\n     administrative   decision   taken   by   the   Collector   in   the
\n     matter   of   the   valuation   of   the   property   sought   to   be<\/p>\n
     acquired   it   is   clear   that   the   said   decision   ultimately
\n     affects the rights of the owner of the property and in that
\n     sense,   like   all   decision   which   affect   persons,   it   is
\n     essentially fair and just that the said decision should be
\n     communicated  to  the said party.  The  knowledge of the
\n     party   affected   by   such   a   decision,   either   actual   or<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n      constructive,   is   an   essential   element   which   must   be
\n     satisfied   before   the   decision   can   be   brought   into   force.
\n     Thus considered the making of the award cannot consist
\n     merely in the physical act of writing the award or signing<\/p>\n
     it or even filing it in the office of the Collector; it must
\n     involve the communication of the said award to the party<\/p>\n
     concerned either actually or constructively. If the award
\n     is pronounced in the presence of the party whose rights
\n     are   affected   by   it,   it   can   be   said   to   be   made   when
\n     pronounced.   If   the   date   for   the   pronouncement   of   the<\/p>\n
     award is communicated to the party and it is accordingly
\n     pronounced on the date previously announced the award
\n     is said to be communicated to the said party even if the
\n     said   party   is   not   actually   present   on   the   date   of   its<\/p>\n
     pronouncement. Similarly if without notice of the date of
\n     its pronouncement an award is pronounced and a party<\/p>\n
     is not present the award can be said to be made when it
\n     is communicated to the party later. The knowledge of the<\/p>\n
     party affected by the award, either actual or constructive,
\n     being an essential requirement of fair play and natural
\n     justice the expression ‘      the date of the award’          used in the
\n     proviso   must   mean   the   date   when   the   award   is   either<\/p>\n
     communicated   to  the  party   or  is   known  by   him  either
\n     actually   or   constructively.   In   our   opinion,   therefore,   it<\/p>\n
     would be unreasonable to construe the words ‘                    from the
\n     date   of   the   Collector’s      award’    used   in   the   proviso   to
\n     Section 18 in a literal or mechanical way.”\n<\/p>\n
                   7.            This Court, therefore, held that the<\/p>\n
     limitation under the latter part of Section 18(2)(b) of the
\n     Act   has   to   be   computed   having   regard   to   the   date   on
\n     which the claimants got knowledge of the declaration of
\n     the   award   either   actual   or  constructive.   This   principle,<\/p>\n
     however, will apply only to cases where the applicant was
\n     not present or represented when the award was made, or
\n     where   no  notice   under   Section   12(2)   was   served   upon
\n     him. It will also apply to a case where the date for the
\n     pronouncement   of   the   award   is   communicated   to   the
\n     parties   and   it   is   accordingly   pronounced   on   the   date<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n              previously announced by the Court, even if, the parties
\n             are   not   actually   present   on   the   date   of   its
\n             pronouncement. Coming to the facts of the instant case
\n             the High Court has not rejected the plea of the appellants<\/p>\n
             that   they   came   to   know   of   the   award   only   when
\n             compensation was being paid to them in July 1988. They<\/p>\n
             had admittedly no notice under Section 12(2) of the Act.
\n             They had therefore filed the application under Section 18
\n             of   the   Act   on   22.09.1988   well   within   the   period   of
\n             limitation.   The   Reference   Court   recorded   a   finding   in<\/p>\n
             favour of the appellants but the High Court has reversed
\n             that finding without applying the principle laid down in
\n             Raja   Harish   Chandra.   Moreover,   we   find   from   the
\n             grounds  of appeal filed  before the  High  Court that the<\/p>\n
             assertion of the claimants that they came to know of the
\n             declaration  of  the  award   only  when   compensation was<\/p>\n
             being   paid   to   them   in   July   1988   has   not   even   been
\n             challenged.”\n<\/p>\n
    7.        From the above observations, it is amply clear that if the
\n    case falls within the later part of Section 18(2)(b), the limitation would<\/p>\n
    six months. Section 18(2)(b) clearly reveals that when it is a case of<\/p>\n
    “constructive knowledge”, the limitation would be six months. Thus,
\n    the Trial Court has committed an illegality in dismissing the references<\/p>\n
    on the ground that the same are barred by limitation.\n<\/p>\n
    8.        Both the learned counsel appearing for the respective
\n    parties contended that as the issue of limitation has not been properly
\n    considered and as the references are decided mainly on the point of<\/p>\n
    limitation, the matters need to be remanded back.\n<\/p>\n
    9.        Hence, the impugned awards are quashed and set aside.
\n    The cases are remanded back to the Reference Court for retrial. It is
\n    made clear that the parties shall be entitled to lead the further<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span>
\n     evidence if any touching the question of limitation. The Reference
\n    Court shall decide the Land References Nos. 404, 405, 407, 408,
\n    409, 410, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423,<\/p>\n
    424, 425, 426, 427, 428, 429 & 430 all of 1996 as expeditiously as<\/p>\n
    possible and preferably within a period of six months from today.
\n    There shall be no order as to costs.\n<\/p>\n
    10.       In view of the disposal of the appeals Civil Application does<\/p>\n
    not survive and the same is also disposed of.\n<\/p>\n
                                                    (A. P. DESHPANDE, J.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:17:54 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rambhau Bandu Gawane vs The State Of Maharashtra Through on 2 February, 2009 Bench: A.P. Deshpande 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-57488","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRambhau Bandu Gawane vs The State Of Maharashtra Through on 2 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rambhau-bandu-gawane-vs-the-state-of-maharashtra-through-on-2-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rambhau Bandu Gawane vs The State Of Maharashtra Through on 2 February, 2009 - 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