Babulal Ramsing Tagor vs The State Of Maha., Thr Collector & ...
2017 Latest Caselaw 3417 Bom

                                                                                                    FAJ 73-06.odt
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                            FIRST APPEAL NO.73 OF 2006

               Babulal s/o Ramsing Tagor
               Aged about 58 years
               Occupation: Agriculturist
               R/o Tembhari, Tah. Arvi
               District-Wardha.                                     .......             APPELLANT

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

1]             The State of Maharashtra
               Represented by the Collector
               Wardha Tahsil & District- Wardha.

2]             The Executive Manager
               Minor Irrigation
               Tah. Arvi, District-Wardha.                          ......              RESPONDENTS

-------------------------------------------------------------------------------------------
         Shri. Sachin Sambre, Advocate for Appellant.
         Shri. M. A. Kadu, AGP for Respondent No. 1.
-------------------------------------------------------------------------------------------

               CORAM :  SMT. DR. SHALINI PHANSALKAR-JOSHI, J. 

               DATE    :  21 st
                                JUNE, 2017.


ORAL JUDGMENT

This appeal is preferred against the judgment and order dated

23.9.2005, passed by 2nd Ad-hoc Additional District Judge, Wardha, in

Land Acquisition Case No. 1 of 1998. By the impugned judgment and

order, the Reference Court has been pleased to dismiss the Reference on

FAJ 73-06.odt

the count that it is barred by limitation. Though in its impugned

judgment the Reference Court has noted the submissions of learned

counsel for the parties, as regards the adequacy or inadequacy of

amount of compensation awarded by the Special Land Acquisition

Officer, Reference Court has not dealt with those submissions, nor given

any finding to that effect, fixing the enhanced amount of compensation,

however at the same time holding that the applicant has proved that the

compensation, awarded by the Special Land Acquisition Officer is

inadequate. In these peculiar circumstances, the present appeal needs to

be decided, only as regards the point of limitation.

2] It was specifically pleaded by the appellant in his Reference

that award in question came to be passed on 31.1.1995. However, he

has not received any notice asking him to remain present on the date of

passing of award. The amount of compensation was paid to him on

21.2.1995. He accepted the same under protest and thereafter he

applied for certified copy of award on 10.4.1995. The copy of the award

was received by him on 3.6.1995 and thereafter on 30.7.2003 he has

filed the Reference before the Court.

3] There was no denial to these averments made in the

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Reference, in the written statement of respondent no.1. There was not

even the contention to the effect that Reference was not filed within

limitation.

4] Therefore, it appears that Reference Court has not even

framed the issue as to whether the Reference was barred by limitation.

However, in evidence affidavit filed before the Reference Court, on

behalf of respondents by S.L.A.O. Shri. Ganvir it was mentioned in last

but one para that appellant has received the notice under Section 12(2)

of the Land Acquisition Act on 21.2.1995. On the same date he has

received the compensation also and therefore, he should have filed the

Reference within six weeks from the date of receipt of notice and the

compensation on 21.2.1995. He should have filed the Reference on

4.4.1995. However, as it was filed on 30.7.2003, it was delayed by 91

days.

5] On the basis of this evidence affidavit of S.L.A.O. Shri.

Ganvir, learned Reference Court, even in the absence of any issue

framed about the Reference being barred by limitation, in its impugned

judgment and order decided the said issue and dismissed the Reference

only on the ground that reference is filed beyond limitation. Hence,

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barred by law. Therefore, as rightly submitted by learned counsel for

appellant, the Reference Court has committed a grave error of law by

rejecting the appellant's Reference petition, without framing any issue to

that effect only on the ground that it is barred by limitation and that too,

under misconceived notion of law.

6] It is pertinent to note that the notice under Section 12(2) of

the Land Acquisition Act was issued to the appellant on same date on

which the compensation was paid to him. There are specific averments

made by appellant in his Reference that the said notice was not

accompanied with the copy of the award and he had to apply for

certified copy of the award have remained unchallenged on record.

Further the specific note made by him in the Reference petition on the

last page that award in question came to be passed on 31.1.1995

without issuing any notice to him to remain present on the date of

passing of the award has also remained unchallenged.

7] In view thereof, if the copy of the award was not

accompanied with notice issued under Section 12(2) and the appellant

had to apply for certified copy of the award, as per the settled legal

position, mere receipt of notice under Section 12(2) of the Act cannot be

FAJ 73-06.odt

sufficient in order to enable the appellant to exercise his right of appeal

effectively unless such notice must be accompanied with the copy of the

award herein in the case. There is no averment, even for the sake of it,

raised by respondent no. 1 or 2 that the copy of the award was sent

along with the notice under Section 12(2). Therefore, as per the well-

crystalized legal position, it has to be held that as appellant was not

aware of the essential contents of the award and mere knowledge of the

fact that the award has been made, being not sufficient, the period of

limitation has to commence from the date when he received the certified

copy of the award. It is pertinent to note that he has applied for the

certified copy of the award immediately after obtaining the amount of

compensation under protest and since the date of receipt of the certified

copy of the award, as the reference was filed within six months, it has to

be held said Reference was within limitation. The impugned finding of

the learned Reference Court that reference is barred by limitation is,

therefore, required to be quashed and set aside.

8] As the learned Reference Court has not considered the matter

on merits, except for noting submissions advanced by the learned

counsel for the parties, the matter is required to be remanded to the

learned Reference Court, for deciding fair and just amount of

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compensation, as claimed in the Reference application.

9] As a result, the appeal is allowed.

The impugned order passed by the Reference Court,

dismissing the Reference Petition of the appellant is hereby quashed and

set aside.

The matter is remanded to the Reference Court for deciding it

afresh.

Reference Court to decide it within a period of six months

from the date of receipt of this order and record and proceedings from

this Court.

Appellant is permitted to amend the Reference petition, if

found necessary.

Both the parties are at liberty to adduce additional evidence.

Office is directed to send record and proceedings forthwith.

Both the parties to appear before Reference Court on

7.7.2017.

Appeal is disposed of in above terms.

JUDGE RGIngole