1 FA 102.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 102 OF 2010 1. Bansidhar S/o Jaivantrao Dhonde, Age : 65 Years, 2. Madhukar S/o Jaiwantrao Dhonde, Age : 46 Years, 3. Rangnath S/o Rama Gore, Age : 40 Years, 4. Dinesh S/o Baban Gore, Age : 22 Years, 5. Santosh S/o Baban Gore, Age : 19 Years, All Occu. : Agril., R/o Ashti, Tq. Ashti, Dist. Beed .. .. Appellants Versus 1. The State of Maharashtra Through The Collector, Beed. 2. The Krishi Utpanna Market Committee, Kada, Tq. Ashti, Dist. Beed. .. .. Respondents 2 FA 102.10 WITH FIRST APPEAL NO. 103 OF 2010 Hafejabi W/o Syed Jakeriya, Age : 90 Years, Occu.: Household, through General Power of Attorney, Rafee Jakeriya Shaikh, Age : 60 Years, Occu. : Pensioner, R/o Bawan Path, Police Line, Room No. 35, Old Puna - 2. .. .. Appellant Versus 1. The State of Maharashtra Through The Collector, Beed. 2. The Krishi Utpanna Market Committee, Kada, Tq. Ashti, Dist. Beed. .. .. Respondents Shri S. L. Bhapkar,, Advocate for Appellants. Shri V. A. Dhakne, Advocate for the Respondent No. 2. CORAM : S. V. GANGAPURWALA, J. DATE : 27TH APRIL, 2011. JUDGMENT : . The appellant in Appeal No. 103/2010 has filed petition bearing No. 97/2005 U/Sec. 18 of the Land Acquisition Act for enhancement of compensation being dissatisfied with the amount 3 FA 102.10 of compensation awarded by the Special Land Acquisition Officer on account of the acquisition of land bearing gut No. 923/1 to the extent of 3H 80R situated Mauje Ashti. The said land was acquired by the respondent No. 1 for the respondent No. 2. 2. The appellants in First Appeal No. 102/2010 have filed petition bearing No. 98/2005 for compensation on account of the acquisition of the said land bearing gut No. 923/1 admeasuring 3H 80R contending that they are the tenants over the suit property and are also entitled for compensation. They claimed 60% share in the amount of compensation. Both the claim petitions were tried jointly by the District Judge - 2, Beed. 3. The District Judge - 2, Beed decided both the claim petitions vide his judgment and award dated 12.03.2009. The District Judge - 2, came to the conclusion that the market value of the acquired property on the date of publication of notification U/Sec. 4(i) of the Land Acquisition Act is at the rate of Rs. 10,000/- per R and the market value of the acquired land would be Rs. 22,27,432/- along with all other statutory benefits, such as 30% solatium, interest U/Sec. 34 and U/Sec. 23(1-A). The District Judge, however, rejected the claim petitions on the 4 FA 102.10 ground of limitation. Aggrieved thereby the claimants in both the claim petitions have filed the present appeals. 4. Shri S. L. Bhapkar, the learned counsel for appellants/claimants submits that the Court has come to the conclusion that the market value determined by the Special Land Acquisition Officer was too inadequate and has also determined the market value of the land acquired. But has erroneously rejected the said reference on the ground of limitation only. According to the learned counsel, though the award was passed on 10.03.1995, the notice U/Sec. 12(2) of the Land Acquisition Act was issued on 03.12.2003, same was served upon the claimants on 23.12.2003 and the reference was filed on 23.01.2004 well within the period of limitation. It was erroneous on the part of the Court to come to the conclusion that as within six months of the award the references were not filed, they were barred by limitation. According to the learned counsel, the District Judge has misinterpreted the provisions of Section 18(1) and 18(2) of the Land Acquisition Act. Only because the Collector did not issue notice U/Sec. 12(2) of the Act immediately when the award was passed, the Court has declined to compute the period of six weeks from the notice U/Sec. 12(2) and has just relied on Clause 5 FA 102.10 B of Sub Section 2 of Section 18 of the L. A. Act. From the date of service of notice U/Sec. 12(2), the Reference was well within limitation. The award was not passed in presence of the claimants. The learned counsel relies on the judgment of the Apex Court in a case of Raja Harishchandra Vs. Deputy Land Acquisition Officer reported in AIR 1961 S.C. 1500. 5. Per contra, Shri Dhakane, the learned counsel for the acquiring body supports the judgment of the Reference Court and contends that the Reference Court has correctly come to the conclusion that the References were barred by limitation. The award was passed in the year 1995. The claimant Hafijabee has executed the power of attorney on 22.01.2004 on a stamp purchased on 20.12.2003. As such, she was aware of the award passed even prior to the service of notice U/Sec. 12(2) of the Act. According to the learned counsel, even the court fees stamps were purchased on 29.06.2004. As such, the said application will be deemed to have been filed on 29.06.2004 i. e. after the laps of period of six weeks. 6. I have heard the learned counsel and have gone through the judgment and the record and proceedings. 6 FA 102.10 7. The undisputed facts are that claimant Hafijabee of F. A. No. 103/2010 is the owner of the property and the claimants Bansidhar and others of First Appeal No. 102/2010 are the tenants over the land gut No. 923/1 which is acquired to the extent of 3H 80R situated at Mauje Ashti, Tq. Ashti. The notification U/Sec. 4 of the Land Acquisition Act was issued on 28.03.1991. The possession was taken on 11.03.1985. The award was passed on 10.03.1995. The notice U/Sec. 12(2) of the said Act was issued on 03.12.2003. The same was served upon the claimants on 23.12.2003 and the reference U/Sec. 18 of the said Act was filed on 22.01.2004. 8. The Reference Court decided the market value at the rate of Rs. 10,000/- per R for the land acquired excluding the area of open space and road. The Reference Court has taken into consideration various sale instances submitted by the claimants prior to the date of notification U/Sec. 4 for finalising the award. The notification U/Sec. 4 of the said Act was published on 13.11.1980, but the same was not proceeded and thereafter fresh process commenced and subsequently a fresh notification U/Sec. 4 of the Act was issued on 28.03.1991 and published. The 7 FA 102.10 material date for ascertaining the market value would be the date of publication of notification U/Sec. 4 of the Act i. e. 28.03.1991. Various sale instances of similarly situated lands were considered by the Reference Court. The same are detailed in para 11 and 17 of the judgment delivered by the Reference Court. The Reference Court after considering all the relevant factors had determined the market value at Rs. 10,000/- per R excluding the area for roads and open spaces and came to the conclusion that for the plot area the total market value would be Rs. 22,27,432/- and the same is detailed in para 25 of the judgment of the Reference Court, the Reference Court has also awarded the statutory benefits i. e. solatium and interest. 9. The acquiring body nor the State has filed any cross objection challenging the said findings. Even no arguments were advanced by the learned Assistant Government Pleader and the learned counsel for the acquiring body about valuation made by the Reference Court. Shri Dhakane, the learned counsel has only submitted that, the acquiring body may file separate appeal, but has not canvased any arguments regarding the validity of the market value determined by the Reference Court. The market value as determined by the Reference Court shall have to be 8 FA 102.10 accepted, which is based on various sale instances. 10. The parties have argued about the limitation. Sec. 18 of the Land Acquisition Act lays down the period of limitation to file the reference in case of various eventualities. Section 18(2-A) lays down that the application for Reference shall be made within six weeks from the date of Collectors award, if the person filing reference was present or represented before the Collector at the time when he made his award. Further Section 18(2-B) lays down that in other cases within six weeks from the receipt of the notice U/Sec. 12(2) of the said Act or within six months from the date of Collector's award whichever period shown is expired. Here, it is not disputed that the claimants were not present nor represented before the Collector, when the award was passed. It has also come on record that notice U/Sec. 12(2) of the said Act was served upon the claimants on 23.12.2003. The reference is filed on 22.01.2004. It is also not the case of the respondents that the copy of award was served to the claimants at any time prior to the notice U/Sec. 12(2). As such, there was no reason for the claimant to have the knowledge of the award, though the award was passed on 10.03.1995, still the notice U/Sec. 12(2) was issued for the first time on 03.12.2003 and served upon the claimants on 9 FA 102.10 23.12.2003. The Apex Court in a case of Raja Harishchandra Vs. Deputy Land Acquisition Officer referred supra has interpreted proviso B to section 18(2) of the said act wherein, "date of Collectors award" means the date of award either communicated to or is known by party whether actually or constructively. The Reference Court only on the ground that the applications were moved upto 30th May, 1994 by the claimants enquiring about the progress, in the course of enquiry within the scope of Section 9 of the Act has inferred that the claimants may have the knowledge about the progress of acquisition proceedings and has further inferred about the presence of the parties before the Land Acquisition Officer and so has arrived at a conclusion that notice of the award within meaning of Sec. 12(2) of the Act would not be necessary. Merely, on the basis of application submitted, it cannot be said that the claimants had the knowledge of the award passed on 10.03.1995. One of the circumstance relied by the Reference Court to come to the conclusion that the claimants had the knowledge of award, is the power of attorney executed by Hafijabee in January 2004 of which stamps were purchased in December, 2003. Simply because power of attorney was executed on a stamp purchased in December, 2003 would not be sufficient to attribute the knowledge of the award. As such, it cannot be 10 FA 102.10 said with certainty that the claimants had the knowledge of the award prior to the receipt of notice U/Sec. 12(2) of the Act. The Court has also come to the conclusion that the reference is barred by limitation on the count that the Court fees stamps are paid on 29.06.2004 i. e. after the lapse of six weeks from the date of receipt of notice U/Sec. 12(2) and on that ground has also held that the reference is barred by limitation. 11. The claimants had filed the reference on 22.01.2004 and presented the court fees stamp on 29.06.2004. The presentation of court fees stamp on 29.06.2004 would not render the reference as barred by limitation. The learned Single Judge of this Court in a case of Laxmibai Parke Vs. State of Maharashtra reported in 2010(6) All M. R. page 735 relying on the earlier Division Bench judgment of this Court in a case of Sambhaji Chate Vs. State of Maharashtra and another reported in 2003 (2) Mh. L. J. 661 has held that the reference cannot be refused only on the ground that the proper court fees stamp is not affixed to the application and that would not be a ground to come to the conclusion that the reference is barred by limitation. As such, mere fact that the court fees is deposited late would not render the application time barred as from the date of service of 11 FA 102.10 notice U/Sec. 12(2) the reference was filed well within the prescribed period of limitation. 12. In view of above conspectus it will have to be held that the Reference filed by the claimants was well within prescribed period of limitation. As such, the judgment and order passed by the Reference Court holding the reference as barred by limitation is quashed and set aside. 13. The claimants in First Appeal No. 103/2010 are the landlords and the claimants in First Appeal No. 102/2010 are the tenants. As per the judgment of the Reference Court the compromise application was submitted by them, whereby the landlords agreed to accept 3/4th of the amount and 1/4th amount was agreed to be accepted by the tenants. As such, the amount awarded shall be distributed in accordance with compromise i. e. 3/4th amount to the landlords and 1/4th amount to the tenants. 14. The market value is already determined by the Reference Court. The same is legal and proper, as such, it is held that the respondents are jointly and severally liable to pay the amount of Rs. 22,27,432/- to the claimants along with all other statutory 12 FA 102.10 benefits as is determined by the Reference Court in the impugned judgment. The appeal is accordingly allowed. The award be passed in view of the observations made above. [ S. V. GANGAPURWALA, J. ] bsb/April 11