(1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 1/8 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1. S.B. CIVIL MISC. APPEAL NO.42/1996 Mukh Ram & Anr. Vs. State of Rajasthan & Ors. 2. S.B. CIVIL MISC. APPEAL NO.296/1996 Katar Singh Vs. State of Rajasthan. 3. S.B. CIVIL MISC. APPEAL NO.292/1996 Tara Singh Vs. State of Rajasthan & Ors. 4. S.B. CIVIL MISC. APPEAL NO.453/1996 Anop Singh Vs. State of Rajasthan. 5. S.B. CIVIL MISC. APPEAL NO.550/1996 Sukhdeo Singh Vs. State of Rajasthan. 6. S.B. CIVIL MISC. APPEAL NO.43/1996 Harbans Singh Vs. State of Rajasthan. 7. S.B. CIVIL MISC. APPEAL NO.179/1996 Level Singh Vs. State of Rajasthan & Ors. 8. S.B. CIVIL MISC. APPEAL NO.269/1996 Gurumail Singh Vs. State of Rajasthan & Ors. 9. S.B. CIVIL MISC. APPEAL NO.661/1996 Lichman Singh Vs. State of Rajasthan. Date of order : 21st May, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. S.L. Jain for the appellants. Mr. Ravi Bhansali ) Mr. DLR Vyas for Mr. B.M. Bora ) Mr. Rajesh Choudhary for L.R. Choduahry) for the respondents. Mr. Ravi Panwar for Rajesh Panwar ) Mr. Manju Choudhary ) ----- BY THE COURT:- (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 2/8 1. These appeals arise out of different awards passed by the Land Acquisition Officer for the land in question acquired under the provisions of Land Acquisition Act, 1893 for Union of India for defence establishment in 10 L.L.G. Lalgarh Barani Sercond, Kikar Chak Barani, 21 S.D.S. 22, 23, 24 S.D.S. under which a large chunk of land was acquired by the State Government for Union of India for defence establishment. 2. The land owners filed the reference application under Section 18 of the Act. The facts of the appeal No.42/1986 -Mukh Ram & Anr. Vs. State of Rajasthan & Ors. are taken here into account. The award in the present case appears to have been made on 24.12.1977 as noted on page No.2 of the impugned order dated 22.9.1995 whereas the reference application under Section 18 of the Act was filed by the land owners, the present appellants, before the learned Land Acquisition Officer, S.D.O., Hanumangarh on 9.6.1983. The learned S.D.O., Hanumangarh appears to have forwarded the said reference application to the learned Civil Court, who decided the said reference application by the impugned order dated 22.9.1995 deciding the both the issues against the land owners. The issue No.1 on the merit of enhancement of compensation for the land acquired and the issue No.2 of the reference being barred by limitation. (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 3/8 3. Mr. S.L. Jain, learned counsel appearing for the appellants submitted that the reference application was filed before the Land Acquisition Officer along with an application under Section 5 of the Limitation Act for condonation of delay, if any, in filing the said reference application. He submitted that though the land owners were not present at the time when the award in question was made by the Land Acquisition Officer nor any notice under Section 12(2) of the Act was served upon them and since they came to know of the award and contents thereof only on 6.6.1983, the reference application could not have been rejected as time barred by the learned court below. He further submitted that since a large chunk of land was acquired by the State in some of the cases of the persons similarly situated given the compensation and then enhanced by this Court. In other cases, the delay in filing the reference application was also condoned by the learned court below and the appeals filed by the respondents State / Union of India has been dismissed by this Court. He, therefore, prayed that the impugned order of learned Civil Court (Senior Division), Sri Ganganagar dated 22.9.1995 rejecting the reference application deserves to be set aside and treating the reference as within limitation the enhanced compensation deserves to be awarded to the land owners as has been done in other cases. (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 4/8 4. On the side opposite learned counsels for the respondents Mr. Ravi Bhansali, Mr. DLR Vyas for Mr. B.M. Bora, Mr. Rajesh Choudhary for L.R. Choduahry, Mr. Ravi Panwar for Rajesh Panwar and Mr. Manju Choudhary have contended that the reference was barred by limitation and the issue No.2 has been rightly decided against the land owners as the land owners had accepted the compensation without any demur under the said award way back in the year 1978-79 itself and, therefore, they should be deemed to have knowledge of the award in those years and the reference application filed in the year 1983 on 9.6.1983 in the present case cannot be said to be within limitation. The learned counsels relied upon the judgment of Hon'ble Supreme Court in case of Land Acquisition Officer Vs. Shivabai & Ors – (1997)9 SCC 710 and a judgment of coordinate Bench of this court in S.B. Civil Misc. Appeal No.166/1996 – Jagdeepkaur Vs. State of Rajasthan & Anr. Dismissing the appeal of the land owners. 5. In order to decide the controversy in hand, Section 18 of the Act deserves to be noticed as under:- “18. Reference to Court.-(1) Any person (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 5/8 interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation amongst the persons interest. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award. (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” 6. The reference by any person interested can be filed to the Collector on various issues as to measurement of land, the amount of compensation, the persons to whom such compensation is payable or apportionment of such compensation. The proviso to sub-section (2) of Section 18 prescribes the limitation of 6 weeks and 6 months respectively for two situations in clause (a) and (b) thereof. In clause (a) if the person making such reference application was present or (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 6/8 represented before the Collector then such application has to be filed within 6 weeks from the date of Collector's award. In another situation when such person is not present or represented before the Collector then within 6 weeks from the date of service of notice under Section 12(2) of the Act or within 6 months from the date of Collector's award whichever period was expired first. The question of limitation is always a mixed question of law and fact and it i also beyond the pale of doubt that provisions of Section 5 of the Limitation Act applies to the reference application filed under Section 18 of this Act. 7. In the present case, it is not clear from the record available before this Court nor from the impugned order as to whether any notice under Section 12(2) of the Act was served on the present appellant or not. This is so because the land owners have stated in their application that they were not present or represented before the Collector at the time of passing of the award and their averments in the reference application is that they came to know of the contents of the award only on 6.6.1983 and the reference application was filed on 9.6.1983. The mere fact as the counsel for the respondents pointed out that the land owners had accepted the compensation under the award without a demur in the year 1978-79 cannot, in the opinion of (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 7/8 this Court, deprive the land owners for their case to be considered on merits about correct amount of compensation to be paid to such land owners. It is true that though the land owners accepted such compensation in the year 1978-79, they may not have raised any grievance about the amount of compensation but in view of the submission of the learned counsel for the appellants Mr. S.L. Jain that in various cases either the delay in such cases in filing reference application were condoned either by the Collector himself or by the Civil Court and in other cases the enhanced compensation was awarded by this Court also, this Court is inclined to remit the matters back to the learned Civil Court to decide the reference under Section 18 of the Act afresh on merits. The question of limitation cannot be decided in straight jacket against the land owners in such cases particularly when the respondents have failed to show to this Court that a notice under Section 12(2) of the Act which is mandatory in nature, was served upon these land owners and they kept silent even after that for a considerable period that may be 3 to 4 years. Otherwise filing of reference application in the year 1983 also deserves to be entertained on merits provided sufficient cause for condonation of such delay was shown before the Civil Court. In the present case while deciding issue No.2, the Civil Court has not dealt the sufficiency of reasons as given by the appellant in the application (1) CMA -42/96 - Mukh Ram & Anr. Vs. State of Rajasthan & Ors.(2)cma.296/96-Katar Singh Vs. State of Rajasthan.(3) CMA.292/96 -Tara Singh Vs. State of Rajasthan & Ors. (4)CMA.453/96-Anop Singh Vs. State of Rajasthan, (5).550/96- Sukhdeo Singh Vs. State of Rajasthan, (6)cma.43/96-Harbans Singh Vs. State of Rajasthan, (7).179/96-Level Singh Vs. State of Rajasthan & Ors., (8)CMA.269/96-Gurumail Singh Vs. State of Rajasthan & Ors. and (9)cma.661/96-Lichman Singh Vs. State of Rajasthan. Judgmetn dt.21.5.09 8/8 under Section 5 of the Limitation at all and such application cannot be deemed to have been impliedly rejected by deciding issue No.2 against the land owners. 8. Consequently these appeals are allowed and the impugned order passed by the learned Civil Court on 22.9.1995 and such orders passed in other cases on different dates are set aside and the matter is restored back to the learned Civil Court, Sri Ganganagar for deciding the application under Section 18 of the Act afresh on merits after giving an opportunity of hearing to the concerned parties and decide the reference application on merits in accordance with law. The said reference may be decided within a period of 6 months from today in view of the long pendency of the matters before this Court from the year 1996. No order as to costs. [ DR. VINEET KOTHARI ], J. itemNo.2, 3, 7, 13, 20 to 24 babulal