1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.120 OF 1999 Prabhakar Govind Gokhale & Ors. .....Appellants V/s. The State of Maharashtra and Anr. ..... Respondents WITH FIRST APPEAL NO.121 OF 1999 Vijaysingh Shripatrao Shinde, since deceased through Legal Heirs and Ors. ..... Appellants V/s. The State of Maharashtra and Anr. ..... Respondents WITH FIRST APPEAL NO.928 OF 1999 The State of Maharashtra ..... Appellant V/s. Chief Engineer, Prabhakar Govind Gokhale and Ors. ..... Respondents WITH CIVIL APPLICATION NO.750 OF 1999 IN FIRST APPEAL NO.928 OF 1999 The State of Maharashtra ..... Appliant V/s. Chief Engineer, Prabhakar Govind Gokhale and Ors. ..... Respondents 2 WITH CROSS OBJECTION NO.1417 OF 2005 IN FIRST APPEAL NO.928 OF 1999 The State of Maharashtra ..... Appellant V/s. Chief Engineer, Prabhakar Govind Gokhale and Ors. ..... Respondents WITH FIRST APPEAL NO.1114 OF 1999 The State of Maharashtra ..... Appellant V/s. Chief Engineer, Vijaysingh S. Shinde and Ors. ..... Respondents WITH CROSS OBJECTION NO.1419 OF 2005 IN FIRST APPEAL NO.1114 OF 1999 The State of Maharashtra ..... Appellant V/s. Chief Engineer, Vijaysingh S. Shinde and Ors. ..... Respondents Mr.S.R.Ganbavale, Advocate, for the appellants in FA No.120/99 and 121/99 and for respondent Nos.2 to 8 in F.A.No.928/99 and 1114/99. Mrs.Kiran Bhagalia, for respondent No.2 in F.A.No.120/99 and 121/99 and for respondent No.1 in FA No.928/99 and 1114/99 and for the applicants in Cross Objections. 3 Ms.S.P.Manchekar, A.G.P., for the State-appellant in FA No.928/99 and 1114/99 and for respondent No.1 in F.A.No.120/99 and 121 of 1999. CORAM :P.B.MAJMUDAR & R.V.MORE, JJ. DATE : JULY 21, 2009 ORAL JUDGMENT : (Per P.B.Majmudar, J. ) 1. Since the point involved in all these appeals and cross objections are common, with the consent of the learned Advocates appearing in the matter, they are taken up for hearing together. 2. These appeals are directed against the judgment and order passed by the Additional District Judge, Sindhudurg, at Oros, dated 29-10-1998, by which the learned Judge partly allowed L.A.R.No. 102/1997 and 103 of 1997 with proportionate costs. The referee was directed to pay enhanced compensation to the claimants as per the final award. The land in question was acquired by the Government for the Konkan Railway project. The land in question is situated at Kokisare, Tal. Vaibhavwadi, District – Sindhudurg. Accordingly, notification under Section 4 of the Land Acquisition Act, was issued on 21-01-1992, which was published on 05-02-1992. Claimants were awarded compensation of Rs.7.04,296/- and Rs.79,846/- towards acquired land of Survey Nos.44 and 43 respectively. The claimants have received the said amount under 4 protest and subsequently sought for a reference under Section 18 of the Act, for enhanced compensation. By the order impugned, the Reference Court partly allowed the References. Against the order of the Reference Court, First appeal No.120/99 has been filed by the claimants of Reference No.102/97 and First Appeal No.121/99 has been filed by the claimants of Reference No.103/1997. The State of Maharashtra has also filed appeals bearing First Appeal No.928/99 against the award passed in Reference No. 102/97 and First Appeal No.1114 of 1999 against the award in Reference No.103 of 1997. 3. The learned A.G.P., appearing for the State, has submitted that the References before the Trial Court were barred by limitation as the same were not filed within the prescribed time limit. On behalf of the acquiring body, the learned counsel submitted that at the relevant time, the acquiring body was not aware about the pendency of the References, as according to her, even though, hamdust was given, such service was never effected on the acquiring body and virtually ex-parte order is passed so far as the acquiring body is concerned. She has supported the argument of the learned A.G.P., that the References were time barred and Section 5 of the Act is not applicable in the facts and circumstances of the case. 4. Mr.Ganbavale, learned counsel appearing for the appellants 5 submitted that it may be true that the References is time barred so far as Mr.Vidyadhar Manave is concerned. He further submitted that so far as other claimants are concerned, they were not given any intimation of award by the Collector and subsequently, having come to know about the award passed, the Reference was sought for and therefore, regarding the other claimants, it cannot be said that the reference was time barred. In this connection, our attention is drawn by the learned A.G.P., and the counsel appearing for the acquiring body to the averments made in the application submitted by the claimants under Section 18 of the Act. As per the said averments, it is the case of the claimants that the award was passed on 20-08-1994 and Mr.Vidyadhar Manavi, one of the claimants had received an intimation of award on 30-10-1994. However, the other claimants have not received such intimation. Certified copy of the award was received by the claimants on 29-11-1994 and reference have been filed on 06-03-1995. Relying on the judgment of this Court in the case of Keshav Patil V/s. State of Maharashtra, AIR 1978 Bombay 289, it is submitted on behalf of the claimants that notice of the award not only mean notice of the essential contents of the award. 5. It is submitted by the learned A.G.P., and the acquiring body that even though in the delay condonation application, it is clearly mentioned that the award in question is dated 20-08-1994 and the 6 intimation was received by the applicants on 30-10-1994 and the application for the certified copy was filed on 15-11-1994 and the same was received on 29-11-1994. It is also averred in the application that there was some delay in filing the reference which is about 5 to 6 weeks. The learned A.G.P., for the State submitted that the application is signed by applicant No.7 for himself as well as for power of attorney of applicant No. 1 to 6. On this aspect, the learned counsel for the claimants submitted that the power of attorney was not given by the concerned persons at the relevant time. 6. We have heard the learned counsel appearing in the matter and have gone through the record and proceedings. In our view, the learned trial judge has committed an error of law in holding that the provision of Section 5 of the Limitation Act, is applicable. It is now well settled that Section 5 of the Limitation Act, is not applicable so far as the Reference under Section 18 is concerned. The point which is argued by the learned counsel for the claimant that the power of attorney was not given at the relevant time to Mr.Manavi, was not argued before the Reference Court, nor any finding has been given by the Reference Court in this behalf. He further submitted that at the relevant time, when the award was passed, except Mr.Manavi, no other claimants were intimated, and therefore, at the most, the reference can be said to be time barred 7 only against Mr.Manavi and not against the other claimants. This court in the case of Shantaram Ganesh Shenoy V/s. Special Land Acquisition Officer, Ratnagiri, 2006(6) ALL MR 167, has held that time spent for obtaining certified copy of the award cannot be excluded in computing the period of limitation. 7. Since the Reference Court has committed an error in applying Section 5 of the Limitation Act, we deem it proper to remand the matter back to the Reference Court to decide both the References afresh. Since the aforesaid points were not argued before the Reference Court, the Reference Court shall decide the question of limitation in the light of the law declared by the Supreme Court and this Court in this behalf. In case the Reference Court comes to the conclusion that the Reference is within the period of limitation, then the acquiring body shall be permitted to lead evidence on merits before the Reference Court. The acquiring body may appear before the Reference Court and the Reference Court shall allow the acquiring body to file written statement on all points including the point of limitation and after hearing the parties, fresh orders may be passed in accordance with law. 8. In view of what is stated above, the Award passed in the aforesaid References are hereby set aside and the matter is remanded back to the Reference Court to decide the same in accordance with law as 8 indicated above. The Reference Court shall decide the References within a period of six months from the receipt of the Writ from this Court. The parties may appear before the Reference Court on 24-08-2009, as agreed by the learned Advocates appearing in this matter. It is agreed by the learned counsel appearing in the matter that they will intimate their respective clients to appear before the Reference Court on the aforesaid date and thereafter, the Reference Court shall fix the appropriate date for taking the References for hearing. This date is fixed with the consent of the learned counsel appearing in the matter and in consonance with the provisions of Order 41 Rule 26(A) of C.P.C. 9. In view of what is stated above, the First Appeal No.928 of 1999 and 1114 of 1999 are partly allowed by setting aside the order of the Reference Court. First appeal No.120 of 1999 and 121 of 1999 along with Civil Application No.750 of 1999 and Cross Objections No.1417 of 2005 and 1419 of 2005 also stand disposed of in terms of the aforesaid order. ( R.V.MORE, J. ) (P.B.MAJMUDAR, J.)