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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 701 of 2017
Appellant : Vasant Gulabrao Dhoke, aged about 47 years,
Occ: Agriculturist, resident of Bamarda, Tahsil
Warora, District Chandrapur
Versus
Respondents: 1) State of Maharashtra, through
District Collector, Chandrapur
2) Executive Engineer, Patbandhare Division,
Medium Project No. I, Chandrapur
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Shri Ranjit Bhuibhar, Advocate for appellant Shri M. A. Kadu, Asst. Govt. Pleader for respondent no. 1 Shri K. D. Deshpande, Advocate for respondent no. 2 Coram : S. B. Shukre, J Dated : 6th December 2017 Oral Judgment
1. Heard. Admit. Shri M. A. Kadu, learned Assistant Government Pleader waives notice for respondent no. 1 while Shri K. D. Deshpande, learned counsel waives notice for respondent no. 2. There is ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 ::: 2 no need to call for Record and Proceedings. Heard finally by consnt of parties.
2. The only point that arises for determination is as under :
Whether the Reference Application filed under Section 18 of the Land Acquisition Act was barred by limitation ?
3. On going through the impugned judgment and order, I find that the Reference Court has misdirected itself in dealing with the issue of limitation. The Reference Court in the impugned judgment and order dated 24th February 2017 has observed that as the appellant failed to adduce any evidence to prove his contention that the notice issued to him under Section 12 (2) of the Land Acquisition Act was not accompanied by the copy of impugned Award, there was no substance in the said statement and as such, the learned Civil Judge, Senior Division has found that the Reference Application was beyond limitation, having been filed almost a year after passing of the Award.
4. This observation of the Reference Court is not consistent with the pleadings of the parties as well as evidence available on record. It was specifically pleaded by the appellant that the notice issued under Section 12 (2) of the Act was received by him, but it was not ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 ::: 3 accompanied by any copy of the Award and, therefore, he was required to take inspection of the record of the Land Acquisition officer on 20.11.1999 when he came across the Award passed by the Land Acquisition Officer and thereafter on 2.12.1999 i.e. in or about two weeks, appellant preferred an application under Section 18 of the Act. The pleading that notice issued under Section 12 (2) of the Act was not accompanied by the Award, was not specifically denied by the respondents. The law is that whenever any pleading is not specifically denied, it is deemed to be admitted. Even in this backdrop, a contention has been raised by the respondents that copy of the notice was indeed accompanied by Award. This contention is worthy of rejection forthwith for three reasons. There was no specific denial of appellant's pleading that no award copy was sent along with the notice. Secondly, there was no such pleading specifically made by the respondent to support the contention, now made. Thirdly, evidence whatsoever, was also not adduced by the respondents.
5. In Premji Nathu v. State of Gujarat & anr reported in 2012 (5) Mh. L. J. (SC) 514, it is held by the Hon'ble Supreme Court that unless it is proved that notice issued by the Collector under Section 12 (2) was accompanied by copy of Award, the claimant would not be in a position to effectively exercise the right vested in him to seek reference ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 ::: 4 under Section 18 (1) of the Land Acquisition Act. The law settled by the Apex Court is followed by this Court in Ashok s/o Namdeorao Nagpure (D), through L.Rs. v. State of Maharashtra & ors reported in 2017 (6) Mh. L. J. 73 where it is held that what is essential for the respondents (the State), is to show that the notice issued under Section 12 (2) of the Act was accompanied by copy of Award and where there is absence of copy of Award, it is no notice under Section 12 (2) of the Act in the eye of law.
6. In the present case also, the facts being what they are, as just discussed, would show that the law as laid down by the Hon'ble Apex Court in Premji's case (supra) and followed by this Court in Ashok (supra) squarely applies to them and, therefore, this Court has no other option than to find that the Section 18 Reference Application which was filed on 2.12.1999, in about two weeks after acquiring knowledge of the Award, passed on 14.7.1999, was well within limitation.
7. Learned counsel for the appellant has invited my attention to the common judgment in LAC No. 625 of 2008 and other cases rendered on 24th February 2017 by the same Court and the same Judge in respect of the same Award wherein a contrary view has been taken. On going through this common judgment, I find that the learned Judge was well aware of the legal position settled by the Hon'ble Apex Court in Premji ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 ::: 5 (supra) and applying that legal position, he arrived at a conclusion that those Land Acquisition Cases were well within limitation. In paragraph 73 of the said common judgment, the same learned Judge has held that now it is settled law that date of passing of the Award is not at all material in computing the period of limitation. It is further held that if the person aggrieved is not present before the Collector at the time of passing of the Award, then there must be proof tendered by the State about receipt of notice along with copy of Award by the land-owner. However, in the impugned judgment and order herein, the same learned Judge took a contrary view, inspite of being aware of the correct legal position that the burden of proof in this regard is on the non-applicant or the State, but the appellant or the land-owner. The reasons for taking such diametrically opposite views in two different judgments delivered on the same day, are not known, though must be known to the learned Judge, which any prudent man would expect to be revealed least now by the learned Judge in order to do justice according to law, and not according to whims, at least to avoid a repeat of such an unpleasant situation. After all, litigants should not be made to face the double whammy of fanciful justice and long delay, inevitable as it is, when appeal is required to be filed, in getting what is due to them as of right.
8. Having found that the Reference Application has been filed ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 ::: 6 within the period of limitation, the point is answered as in the affirmative. It would then follow that this appeal deserves to be allowed and the matter remitted back to the Reference Court for a decision afresh. Point is answered accordingly.
9. The appeal is allowed. Impugned judgment and order are quashed and set aside. The matter is remitted back to the Reference Court for a decision afresh. The Reference Court shall decide the Reference Application within six months from the date of appearance of the parties. Parties shall appear before the Reference Court on 14 th January 2018. Record and Proceedings be sent back immediately. No order as to costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 04/01/2018 ::: Downloaded on - 04/01/2018 23:04:57 :::