Shri Vasant Gulabrao Dhoke vs State Of Maharashtra Through ...
2017 Latest Caselaw 9857 Bom

                                                  1




        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

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

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

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

(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

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

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