Ashok S/O Namdevrao Nagpure vs State Of Mah. & Ors
2017 Latest Caselaw 3165 Bom

 fa-804-06.J.odt                                 1


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH, NAGPUR

                      FIRST APPEAL NO.804 OF 2006

          Ashok s/o Namdeorao Nagpure
          (Since deceased through LRs)

 1-a] Smt. Padmashri wd/o Ashok Nagpure   ...(Amended as 
      Aged about 52 years, Occ.: Agriculturist   per order 
      R/o 31, Ganesh Colony, Pratap Nagar     dtd. 5.12.14)
      Ring Road, Nagpur-22.

 1-b] Nayan s/o Ashok Nagpure
      Aged about 15 years, Occ.: Student
      Through its natural guardian
      Applicant No.1-Mother
      C/o Applicant No.1.          ....... APPELLANTS.

                   ...V E R S U S...

 1]       State of Maharashtra,
          Department of Irrigation
          Through its Secretary, Mantralaya
          Mumbai-32.

 2]       Special Land Acquisition Officer 
          Pench Project, Office of the Collectorate
          Compound, Civil Lines, Nagpur.

 3]      Executive Engineer 
         Lower Vena Project Divn. No.2
         Nagpur.                                 ....... RESPONDENTS
 -------------------------------------------------------------------------------------
         Shri A. R. Patil, Advocate for Appellant.
         Shri M.A. Kadu, AGP for Respondent No.1 & 2.
         Shri. V. G. Wankhede, Adv. for respondent No.3
 -------------------------------------------------------------------------------------
 CORAM:  SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

h JUNE, 2017.

 DATE:      14







 ORAL JUDGMENT

Reference petition filed by the appellant under

Section 18 of the Land Acquisition Act, being not satisfied

with the Award dated 13.12.1996 passed by the Collector,

came to be dismissed by the Court of 3rd Ad-hoc Additional

District Judge, Nagpur vide its judgment dated 11.8.2006 in

L.A.C. No. 147 of 1997. Hence, he has preferred this appeal.

2] The only ground on which the Reference Court

has dismissed the petition is that it was barred by limitation.

It was held by the Reference Court that the appellant-claimant

has received the notice dated 17.12.1996 issued by Land

Acquisition Officer under Section 12(2) of the Land

Acquisition Act. Appellant received the compensation amount

under protest on 2.1.1997. The Award was passed on

13.12.1996 and the Reference was filed on 20.2.1997. Hence,

it held that Reference was filed on 63th day after receipt of

notice and on 49th day after receipt of compensation. Hence,

as the reference was filed after six weeks from the date of

notice under Section 12(2) of the Land Acquisition Act and

also after receipt of compensation, it was barred by limitation.

In arriving at this conclusion, the Reference Court placed

reliance on the judgment of the Hon'ble Apex Court Mahadeo

Bajirao Patil Vs. State of Maharashtra and others, 2006(1)

Mh.L.J. 28 and held that as the period of limitation for filing

application under Section 18 of the Land Acquisition Act

would be six weeks from the date of receipt of notice and six

months from the date of knowledge of Award, whichever is

earlier and as in this case the Reference was not filed within

six weeks from the receipt of notice, it was barred by

limitation.

3] However, as rightly submitted by learned counsel

for appellant, now legal position has undergone substantial

change. As enunciated by the Hon'ble Apex Court in the case

of Premji Nathu Vs. State of Gujarat and Anr., AIR 2012

Supreme Court 1624, "unless it is proved that notice issued

by the Collector under Section 12(2) was accompanied with

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. Therefore,

what is essential for the respondents is to show that the notice

issued under Section 12(2) of the Act was accompanied with

the copy of Award.

4] However, in this case on behalf of the respondent,

absolutely no evidence is produced on record to that effect to

controvert the statement on oath made by the appellant, with

positive assertion that notice issued to him under Section

12(2) was not accompanied with the copy of the Award.

Hence, he has to apply for certified copy of the Award. On the

receipt of notice, he has applied for certified copy on

8.1.1997. It was received by him on 20.1.1997 and

immediately thereafter on 22.2.1997 he has filed reference.

There is no denial about these facts on record.

5] In such situation, it necessary follows that

reference filed before the Court was within the period of

limitation. Though the appellant was served with notice, as he

could not effectively make the reference without the copy of

the Award and only on the receipt of the certified copy of the

Award, he could assert his right of reference, it has to be held

that Reference filed before the trial Court reference was not

barred by limitation. The impugned judgment and order of

the Reference Court therefore of dismissing the Reference on

the sole ground that it is barred by limitation cannot be

sustained. Hence, it is quashed and set aside. The appeal is

allowed accordingly. The matter is remanded to the

Reference Court for fresh hearing. Both the parties are

directed to appear before the trial Court on 30.6.2017. The

trial Court to decide the Reference as expeditiously as possible

and preferably within a period of six months.

JUDGE

RGIngole