Bombay High Court
Mt Hariyabai Jiwanlal Bhutada vs State Of Mah & Another on 5 May, 2016
Bench: Ravi K. Deshpande
fa168.05.J.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.168 OF 2005
Smt. Hariyabai wd/o Jiwanlal Bhutada
dead through legal heir Dr. Ramesh
s/o Onkardas Gandhi, Aged - Adult,
Occ: Cultivator, R/o Tq. & Dist. Nagpur
through his power of attorney Onkardas
Paramsukhdasji Gandhi. ....... APPELLANT
...V E R S U S...
1]
State of Maharashtra through
the Collector, Wardha.
2] The Special Land Acquisition Officer,
Sub-Divisional Officer, Tq. Arvi,
District Wardha. ....... RESPONDENTS
----------------------------------------------------------------------------------------------------
Shri K.J. Topale, Advocate h/f for Shri S.D. Chopde for Appellant.
Shri M.A. Kadu, AGP for Respondents.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th MAY, 2016.
DATE: 5
ORAL JUDGMENT
1] The land admeasuring 1.62 HR out of Survey No.13 was
acquired by issuing notification under Section 4 of the Land Acquisition
Act for the purposes of extension of gaothan. The Land Acquisition
Officer awarded compensation at the rate of Rs.48,750/- per hectare.
Though the Reference Court recorded the finding that compensation is
required to be enhanced to Rs.60,000/- per hectare, it dismissed the
fa168.05.J.odt 2/8
reference on the ground that it is barred by the law of limitation.
2] The claimant has approached this Court challenging the
dismissal of the reference by the Reference Court.
3] The points for determination are as under:
[a] igWhether the Reference Court has committed an error
in dismissing the reference under Section 18 of the
Land Acquisition Act as barred by time?
[b] Whether the claimant has established his claim for
enhancement of compensation?
4] In the decision of this Court in the case of Maharashtra State
Power General Co. Ltd., Chandrapur v. Dr. Sheshrao Baliram Ingole and
another reported in 2016 (2) ABR 681, it has been held in paragraph
Nos.51, 52 and 53 as under:
51. Coming to the second question of law regarding
burden of proof, no doubt the normal principle is that the
burden to prove that the claim is within limitation is upon
the person or party, who comes before the Court, to
establish it and it is only upon leading evidence that the
fa168.05.J.odt 3/8
onus shall shift upon the respondent or the other side. The
Apex Court in the cases of Laxman Lal (AIR 2013 SC
1578) and K.P. Plantation Private Limited (AIR 2011 SC
3430), has held, as has been pointed out in the initial
paras, that it is the constitutional obligation upon the
State to pay the compensation at a rate which is not less
than the market value of the land, as prescribed under the
second proviso to clause (1) of Article 31A of the
Constitution of India. It is, therefore, for the State to
justify its stand that all the steps, as are required to be
taken under sub-section (2) of Section 12 read with
Section 18 of the said Act, have been followed, and that
the claimant has failed to approach the Court within the
time prescribed under clauses (a) and (b) below proviso to
sub-section (2) of Section 18 of the Land Acquisition Act.
If the Collector or the State wanted to prevent the
claimant from seeking enforcement of constitutional
obligation or fundamental right, then the initial burden is
upon it to make out a case by necessary pleadings and
proof by leading evidence to show that the claim is barred
by the law of limitation, as prescribed under clauses (a)
and (b) below sub-section (2) of Section 18 of the said
Act, which shall be subject to evidence in rebuttal.
52. Even the language of the clauses (a) and (b) below
sub-section (2) of Section 18 of the said Act requires the
Collector to establish the fact that the claimant, as
contemplated by clause (a), was present or represented
before him at the time when the award was made, and in
other cases covered by clause (b), that the claimant had
fa168.05.J.odt 4/8
actual or constructive knowledge of the essential contents
of the award and that the reference was not preferred
within a period of six weeks or six months, as the case
may be, from the date of such knowledge. The Collector
being in custody of the entire record, it is for him to plead
and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation. It is,
therefore, for the State, acting through the Collector, to
discharge its burden if it wanted to deny a fundamental
right to the claimant to get the market value of the land
acquired determined by the Court, by seeking reference
under Section 18 of the said Act.
53. It is not expected from the claimant to plead and
prove the negative facts that he was not present or was
not represented before the Collector when the award was
made, as contemplated by clause (a) below sub-section (2)
of Section 18 of the Land Acquisition Act, or any other
cases covered by clause (b) therein, that he was not
having the actual or constructed knowledge of the
essential contents of the award so as to prefer a reference
under Section 18 of the said Act either within a period of
six weeks or within a period of six months, as the case
may be. No doubt, that it would be advisable for the
claimant to make such pleading in the reference petition
under Section 18 of the said Act, but absence of such
pleading would not be enough to deprive the claimant of a
right to seek a reference for compensation at a market
value of the land under acquisition. The question No.(ii) is
answered accordingly.
fa168.05.J.odt 5/8
5] On the question of limitation the averment in the reference
under Section 18 of the Land Acquisition Act ("said Act" for short) needs
to be seen in paragraph 14. The claimant has made averment as under:
14) That the cause of action arose when the applicant came
to know about the award in the first week of the month May
98, but her only daughter was died on 26-4-98 due to long
illness. Hence she could not attained the authority as soon as
she came to know about the awards. And thereafter she
applied for the certified copy of the award on 15-5-98 and
received the same on 2-6-98. The reference and claim of the
applicant is within limitation.
The fact that the claimant was not present or was not
represented before the Collector when the award was made is not in
dispute. The claimant has averred in the aforesaid paragraph that she
came to know about the award for the first time in the month of May,
1998, she applied for certified copy of the award on 15.05.1998, which
she received it on 02.06.1998, the reference was filed on 10.06.1998.
It is apparent that from the date of knowledge of the essential contents
of award, the reference is preferred within a period of limitation as
specified under Section 18 of the said Act.
6] In view of the aforesaid law laid down the basic facts which
fa168.05.J.odt 6/8
required to be pleaded are found in the application for reference under
Section 18 of the said Act, so as to bring the reference within a period of
limitation in terms of Section 18(2) of the said Act. The burden is upon
the Collector, who is the custodian of the record to come forward with
the case that the reference preferred was barred by the law of limitation
and in the absence of any such pleading and proof on the part of the
Collector, the claimant is not expected to plead and prove the negative
facts that he was not present or was not represented before the Collector
when the award was made or that he was not having the actual or
constructive knowledge of the essential contents of award so as to prefer
a reference under Section 18 of the said Act either within a period of six
weeks or within a period of six months, as the case may be.
7] There is no finding in the present case by the Reference
Court that the appellant - claimant was having knowledge of the
essential contents of award on or before receipt of the certified copy of
award on 02.06.1998. In the absence of such finding the Reference Court
could not have dismissed the reference as barred by law of limitation as
prescribed under Section 18(2) of the said Act. In the facts and
circumstances of this case, it has to be held that the reference preferred
by the claimant was within a period of limitation.
8] On merits of the matter there is absolutely no evidence on
fa168.05.J.odt 7/8
record to seek further enhancement of compensation for acquisition of
land. The reliance is placed upon the sale-deed in respect of sale of 1015
sq.ft. of land for Rs.20,000/- out of Survey No.166 converted for
non-agricultural purpose. On the basis of such sale instance the claim for
enhancement of compensation at Rs.2 lacs per hectare has been made.
Except the oral evidence of one of the witness examined by the claimant
who states to the effect that Survey No.166 is the adjacent to the land
under acquisition, there is no other evidence placed on record. The maps
placed on record at Exhibit 34 and 38 no were indicate that Survey
No.166 is adjacent to Survey No.13. In spite of this, the Reference Court
has recorded the finding in para 12 on the basis of some guess work that
the claimant is entitled to enhancement of compensation by Rs.11,250/-
per hectare along with other benefits. The increase is marginal and
cannot be said to be unjustified. Thus, the rate for acquisition of land
would be of Rs.60,000/- per hectare. In view of the fact that the finding
of the Reference Court on the ground of limitation is set aside, the
claimant would be entitled to enhancement in the rate. The appeal is
therefore, required to be partly allowed.
9] In the result, the first appeal is partly allowed and the
following order is passed:
[i] The claimant is held entitled to enhancement at the
fa168.05.J.odt 8/8
rate of Rs.60,000/- per hectare for 1.62 HR of land
acquired out of Survey No.13.
[ii] The claimant would be entitled to all statutory
benefits as are available in terms of the provisions of
the Land Acquisition Act.
[iii] igThe judgment and order dated 04.12.2004 passed by
the Reference Court in Land Acquisition Case No.29
of 1999 dismissing the reference is hereby quashed
and set aside. The reference is allowed in the
aforesaid terms. No order as to costs.
JUDGE
NSN
