STATE OF MAHARASHTRA Vs. SADASHIV GANPAT AVHAD

JUDGEMENT

(1.) HEARD. A preliminary objection is sought to be raised on behalf of the respondent-State Government to the effect that the reference in the matter was bad in law and, therefore, the award passed by the reference court is without jurisdiction and therefore needs to be quashed since the reference application under Section 18 of the Land Acquisition Act, 1894, hereinafter called as "the said Act", was filed beyond the period of limitation prescribed thereunder.

(2.) THE learned Government Advocate submitted that the award in the case in hand was passed on 12-2-1986. Admittedly, the Notice under Section 12 (2) of the said act was issued and served on 19-2-1986. However, the application under Section 18 for reference of the matter to the reference Court for enhancement of the compensation was filed by the claimants on 5-6-1986. As there was a delay of 65 days in filing the application under Section 18 and the Collector/land Acquisition officer, who received the application, not being a court, had no authority or jurisdiction to condone the delay and to refer the matter to the reference Court and, therefore, the reference itself was without jurisdiction and hence the reference Court could not have entertained the reference application nor could have proceeded with the matter. For the same reason, the impugned award is without jurisdiction. Reliance is placed in the decision of the Full Bench in Suresh Marutrao Jadhav v. State of Maharashtra and Anr. , reported in 2001 Vol. 103 (4) Bom. L. R. 897 = Officer on special Duty (Land Acquisition) and another v. Shah manilal Chandulal Etc. , reported in 1996 (1) Mh. L. J. 609. The period of limitation contemplated under section 18 would commence strictly from the date of service of the Notice under Section 12 (2) or from the date of knowledge of the award. In the case of the former, the limitation being of six weeks and in the case of the latter, the limitation being of six months. Attention is drawn to the decision of the Apex Court in the matter of State of Punjab and another v. Satinder bir Singh, reported in (1995) 3 SCC 330 while placing reliance in the decision of the Apex Court in the matter of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal Etc. , reported in 1996 (1) Mh. L. J. 609. Further, referring to the decision of the Apex Court in Mahadeo Bajirao Patil v. State of Maharashtra and others, reported in (2005) 7 scc 440, it is argued that irrespective of the fact whether the claimant has full knowledge about the award or not, the commencement of the limitation for the purpose of filing of the reference application under section 18 will not be obstructed or be affected in any manner on the ground of the Notice under Section 12 (2)being incomplete in relation to the contents of the award.

(3.) ON the other hand, learned Advocate appearing for the appellants/claimants has submitted that the issue regarding limitation was never raised at any point of time, even at the time of filing of the appeal and even today the memo of the appeal has not been amended incorporating any such ground and the point is sought to be taken only in the course of the arguments. The point of limitation is not a pure question of law and in order to enable a party to raise such point, same should be reflected from the pleadings of the party and there must be an opportunity for the opposite party to know in advance about such defence to be raised in the matter so that the party approaching the Court gets the opportunity to satisfy the Court that the proceedings have not been initiated beyond the period of limitation or that there is sufficient cause for the delay in filing the proceedings. There is no affidavit filed on behalf of the State disclosing the date of service of notice under Section 12 (2 ). In any case, at the relevant time i. e. when the matter was referred to the reference Court, the Collector had found the reference application having been filed within time and therefore it was referred to the reference Court and this is further confirmed from the fact that the plea of limitation was never taken till it was raised by the learned Advocate for the Government in the course of the arguments. In order to consider the point regarding limitation, necessary issue in that regard has to be be framed before the reference Court and opportunity to be given to the parties to lead evidence on such issue and it cannot be taken by way of surprise in the course of the arguments in the appeal. Considering the fact that there were more than one claimant in the matter, there could be a possibility of service of notice on different claimants on different dates and certainly the period of limitation would differ in respect of each of the claimants. These aspects can be dealt with only when the question of limitation is raised at the right stage and opportunity is given to the parties to lead evidence in that regard. As the law stood at the relevant time, the parties were entitled to have the copy of the award in order to enable them to file an effective reference application under Section 18 and mere Notice under section 12 (2) was not sufficient without detail information about the award. Reliance is sought to be placed in the decisions in the matters of Banarsi Das v. Kanshi Ram, reported in AIR 1963 SC 1165, State of punjab v. Qaisar Jehan Begum, reported in AIR 1963 SC 1604, Raja Harish Chandra Raj Singh v. Deputy Land acquisition Officer, reported in AIR 1961 SC 1500 and state of Punjab v. Darshan Singh, reported in (2004) 1 scc 328.