1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION FIRST APPEAL NO.894 of 1996. The Akkalkot Municipal Council, through its Chief Executive Officer, Akkalkot, Dist: Solapur ..Appellant (Original Opponent No.3) versus 1. Shri Vasantrao Tulsiram Kharade Age 55 years, Occupation Agriculturist & Service. 2. Shri Ashokrao Tulshiram Kharade, Age 53 years, Occupation Agriculturist and Service. 3. Shri Ugrasen Tulshiram Kharade, Age 48 years, Occupation Agriculturist and service. 4. Shri Rajesh Tulshiram Kharade, Age 43 years, Occ: Agriculturist 5. Shri Vivekanand Tulshiram Kharade, Age 30 years, Occupation Agriculturist and service. 2 6. Shri Girajabai Tulshiram Kharade, Age 76 years, Occ: Household, all resident of Kharade Galli, Akkalkot, District Solapur. 7. The State of Maharashtra, through the Collector of Solapur Solapur. 8. The Land Acquisition officer No.3,Solapur. ..Respondents (Orig. Petitioners & Respondent Nos.1 & 2 respectively) Mr. A.P.Kulkarni for the Appellants. Mr. V.A.Thorat for the Respondents. ALONGWITH FIRST APPEAL NO.1330 OF 1996 1. Shri Vasant Tulshiram Kharade Age 55 yrs. Occup. Agriculturist & Service. 2. Shri Ashokrao Tulshiram Kharade, Age 53 years, Occupation 3 Agriculturist and Service. 3. Shri Ugrasen Tulshiram Kharade, Age 48 years, Occupation Agriculturist and service. 4. Shri Rajesh Tulshiram Kharade, Age 43 years, Occ: Agriculturist 5. Shri Vivekanand Tulshiram Kharade, Age 30 years, Occupation Agriculturist and service. 6. Shri Girajabai Tulshiram Kharade, Age 76 years, Occ: Household, all resident of Kharade Galli, Akkalkot, District Solapur. Versus 1. The State of Maharashtra, (through the Collector of Solapur) Solapur. 2. The Land Acquisition officer No.3, Solapur. 3. The Akkalkot Municipal Concil, through CEO, Akkalkot, District Solapur ..Respondents 4 Mr.V.A.Thorat for the Appellants Mr.A.P.Kulkarni for the Respondents CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATED : 4TH SEPTEMBER, 2009. JUDGMENT (Per S.J. Vazifdar, J.) :- 1. Both the appeals have been filed against the judgment of the learned District Judge, Solapur, in a reference under Section 18 of the Land Acquisition Act, 1984. The Appellant in Appeal No. 894 of 1996 is the acquiring body and the Appellants in First Appeal No.1330 of 1996 are the claimants. The Appellants in First Appeal No.894 of 1996 have challenged the judgment contending that the compensation granted by the trial Court is too high. The Appellants in First Appeal No.1330 of 1996 have challenged the judgment on the ground that the trial court ought to have granted their entire claim and not only a part thereof. 2. The Acquiring Body and the State Government, apart from contesting the merits of the claim have also contended that the reference was barred by the law of limitation. It is necessary therefore, to set out the facts leading to the 5 reference. It is also necessary for us to set out certain facts which transpired thereafter as the same are also relevant on the question of limitation in the facts of the present case. 3. The land in question comprises of 5 hectares and 58 ares. The development plan of the acquiring body is dated 1.6.1973 and was published in the Government Gazette on 18.8.1973. The same came into effect on 13.10.1973. There was a notification under Section 37 of the Maharashtra Regional and Town Planning Act regarding the modifications. The land was reserved for hospital staff quarters and road. 4(A). The notification of the acquisition of the entire land under section 126(4) of the MRTP Act was published for the first time on 25.11.1991 and in the gazette on 26.12.1991. (B). Subsequently, there was a modification issued on 29.9.1992 and published in the gazette on 22.10.1992 whereby an area of 57 ares out of the said land was deleted from the acquisition. This assumes significance in view of the contention as to the relevant date for the purpose of valuation namely whether it ought to be 26.12.1991 or 22.10.1992. 6 5. The Claimants challenged the notification and acquisition by filing Writ Petition No.1499 of 1993 on 12.4.1993 in this Court. By an order dated 19.4.1993 this court ordered the parties to maintain status quo as regards possession. By an order dated 24.10.1993 the writ petition was dismissed. 6. The award was made on 24.12.1993. There is no dispute that the Claimants were neither present nor represented before the Land Acquisition Officer when the award was made. The Acquiring Body and the State Government contend that the award was served on the Claimants on 29.12.1993 by making panchanama. There is considerable dispute on this question which we will deal with while considering the issue of limitation. 7. According to the Claimants they were not served with the notice and the award, as required under Section 12. We will deal with this aspect later. 8. The possession of the property was taken on 23.12.1993. 9. The Claimants filed a petition for special leave to appeal to the Supreme Court on 3.1.1994 against the order of this Court dated 24.10.1993 dismissing their said Writ Petition. 7 10. According to the Claimants, pursuant to their application dated 4.1.1994 they received the copies of the panchanama and the award on 14.2.1994. However, the award, according to the Claimants was incomplete. This is also an important aspect which will fall for our consideration while dealing with the question of limitation. 11. On 19.4.1994, the Claimants filed an application for reference under Section 18 of the Act. The same was , according to Mr. Thorat, the learned Senior Counsel appearing on behalf of the Claimants, without prejudice to the pending SLP. 12(A). The SLP was finally disposed of by the following Order :- ORDER Delay Condoned. Leave granted. It is not necessary for us to go into the controversy. The High Court in the impugned order has held that though the resolution was passed on 22.1.1988 and moved the Government on 21.7.1989, the declaration having been published U/s. 126(4) of MRTP Act on 18.11.1991 the case of the Appellants has not been prejudiced. Accordingly, it rejected the W.F. Filed by the appellants. It is now brought to our notice that possession has already been taken after the award has been made. In that view, it may be open to the appellants 8 to take steps within a period of four weeks from today to tile and application to the matter referred under section 18 of the Land Acquisition Act and compensation would be determined in accordance with law. The appeal is disposed of accordingly. No costs. (B). Pursuant to the order of the Supreme Court, a supplemental reference/affidavit was filed by the Claimants before the reference Court on 12.12.1994 i.e. within four weeks of the order of the Supreme Court. 13. The State Government and the Acquiring Body have contended that the original reference filed on 19.4.1994 and the supplemental reference filed pursuant to the order of the Supreme Court are barred by limitation. 14. The trial court framed the following issues :- ISSUES 1. What is the true and correct market price of acquired land on the date of notification? 2. Whether the compensation awarded by opponent is correct and proper? 3. Is the reference barred under the law of limitation? 4. Does opponent NO.3 prove that the area of 57R has been excluded from the acquisition proceeding by 9 the State? 5. Do applicants prove that they are entitled for the additional compensation of Rs.1,31,13,300/-? 6. Whether they are entitled for solatium ? 7. What relief and costs? 15. The State Government did not examine any witness. The Acquiring Body examined one M.P. Wagdarikar, its overseer in support of the award. The Claimants examined two witnesses in support of the sale instances relied upon by them. They also examined an Architect, one Mr.A.M. Valsangikar and a Government Authorised Valuer, one Mr.Dilip Shah, who had also tendered his valuation report. Re: Issue No.3 16. Mr.Kulkarni, learned Counsel appearing on behalf of the acquiring body submitted that the reference was barred by limitation. He submitted that the award was made on 24.12.1993 and was served upon the Claimants on 29.12.1993. The reference, however, was filed on 19.4.1994 which was beyond the period prescribed under the Act. Thus, according to Mr.Kulkarni there was a delay of 22 days in filing the reference under Section 18. Section 12 and Sections 18 of the Act read as under: 10 12. Exclusion of time in legal proceedings. (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment 1[on which the decree or order is founded] shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation.In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. 18. Effect of acknowledgment in writing.(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period 11 of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation. For the purposes of this section, (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (b) the word signed means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 17. We are unable to agree with Mr.Kulkarni both on merits as well as in view of the order of the Supreme Court. 18. Mr.Thorat submitted that in view of the order of the Supreme Court dated 14.11.1994, there is no question of the reference being barred by limitation. We have earlier set out the Order of the Supreme 12 Court dated 14.11.1994. It would be convenient to reproduce the relevant portion thereof again. It reads as under :- ....................................In that view, it may be open to the appellants to take steps within a period of four weeks from today to file an application to the matter referred under section 18 of the Land Acquisitions Act and compensation would be determined in accordance with law. 19. We agree with Mr. Thorat that the order of the Supreme Court specifically entitled the Claimants to file an application under Section 18 of the Land Acquisition Act within four weeks from the date of the order. This infact, the Claimants had already done. Further, pursuant to the said order the Claimants filed the further affidavit/reference On 12.12.1994. 20. It was not seriously disputed that the Supreme Court had granted leave to the Claimants to file a reference within four weeks. It was however contended that the order of the supreme Court is of no consequence and without jurisdiction. To use the words in the written submission filed on behalf of the acquiring body: In any event, the Court of law can not extend the period of limitation fixed by the Statute. It is humbly submitted that the Hon. Supreme Court also has no 13 jurisdiction to extend the period of limitation fixed by a statute. Thus, apart from the fact that there is no extension as such granted by the Hon. Supreme Court, the aforesaid order can not be interpreted to mean that any such extention has been granted and that therefore the original reference- application is in time. 21. We are unable to accept this contention. Admittedly, there has been no application to review or modify the order of the Supreme Court. It is not open to the High Court to sit in appeal over the judgment of the Supreme Court. We are bound by the order of the Supreme Court. 22. Even assuming that Mr.Kulkarni s contention regarding the Honourable Supreme Court lacking jurisdiction to extend the period of limitation is well founded on the basis of the statute, namely the Land Acquisition Act, it would make no difference so far as we are concerned. We cannot presume that the power under Article 142 of the Constitution of India available to the Supreme Court was not exercised. 23. Even otherwise on merits we have come to the conclusion that the reference is not barred by limitation. 24. It is necessary first to see the pleadings. 14 (A). In the claim in the land reference the claimants stated as under: A) The claimants were not served with the notices of the award. The Claimants were not present or were not represented before No.2 at the time, when the Award was made. B) The Award has been declared exparte and the notices are also served indirectly by making purported panchanama on or about 29-12-2003, The information and the notice of panchanama became available after the copy was applied on 4.1.1994 and received the same on 14.2.1994 (B). In paragraph 7 the Claimants further stated that the copy of the award supplied was incomplete. Annexures A and C were not supplied inspite of an application for a complete award. The Claimants referred to four letters dated 22.2.1994, 1.3.1994, 19.3.1994 and 11.4.1994 addressed by them requesting that they be furnished with a complete copy of the award. (C). It is further important to note that pursuant to the order of the Supreme Court, the Claimants filed a supplementary application for reference under Section 18. In paragraph 7 therein also the Claimants had reiterated that they had not been supplied the complete copy of the award. 15 25. In reply to paragraphs A and B of the original reference, the Acquiring Body in their written statement merely stated that the Claimants had been served by making a panchanama of service on 29.12.1993. They further stated that the Claimants should prove that the information and notice of panchanama became available on 14.2.1994 as alleged in the reference. 26. The reference was filed after more than six weeks even from 14.2.1994. Thus, even if the award had been furnished on 14.2.1994 the reference would be beyond time. The question which falls for consideration therefore is whether the complete award was served on the Claimants and if so when it was so served. 27. It is important to note that in the written statement while dealing with the contention that the Claimants had not been furnished with a complete copy of the award, it was merely stated that the contents of paragraph 7 of the reference are not relevant for determining the amount of compensation. In other words there is no denial of the fact that a complete copy of the award was not furnished to the Claimants. 28. The claimants have expressedly stated that they were not served with the copy of the award on 29.12.1993. 16 They could not prove the negative. Neither the State Government nor the Acquiring Body have led any evidence to establish that the award was served by panchanama on 29.12.1993. No witnesses were examined by them in this regard. The onus of proving the service indirectly by making the purported panchanama was on the Acquiring Body and the State Government. They failed to discharge this onus. 29. We have referred to the pleadings in detail regarding the Claimants allegations that the complete copy of the award was not served upon them despite repeated requests. We have also indicated that there was no denial of this allegation in the written statement. In fact, the written statement filed by the State Government is absolutely silent regarding the service of the award either on 29.12.1993 or otherwise. The written statement comprises of only 5 paragraphs, none of which deals with this issue. This is important as proof of service of the award complete or otherwise could only be furnished by the State Government whose duty it was to serve the award and who claimed to have served the award. The acquiring body in this regard relied upon the panchanama of purported service of notice under Section 12 of the Act, but this panchanama 17 was not proved either by examining one of the panch witnesses or the Talathi/Tahsildar, before the Reference Court. Consequently the said document was not placed before the Court and it remained in the S.L.A.O s file. 30. In the circumstances, even on merits we are of the view that the reference is not barred by limitation. Issue No.3 is therefore answered in the negative. Re: Issue No.4 31. The issue is not framed correctly. There is no dispute that the area of 57 ares had been excluded from the acquisition. What fell for the consideration of and was considered by the trial court and was even argued before us was the material date for fixing the market value of the acquired property on account of the corrigendum deleting the area of 57 ares from the acquisition. We, therefore proceed to consider the same. 32. As we stated earlier, the notification under Section 4 was published in the gazette on 26.12.1991. This was in respect of the entire land admeasuring 5 hectare and 58 ares. Thereafter a corrigendum was issued on 22.10.1992 by which an area of 57 ares was deleted from acquisition. The question that falls for our consideration is whether 26.12.1991 or 22.10.1992 is the relevant date for fixing 18 the market value of the acquired property. 33. The learned Judge has come to the conclusion that the former date, namely 26.12.1991 is the relevant date. The learned Judge held that it is not in every case where there is an amendment to the Section 4 notification that the relevant date is the date on which the amendment was issued. He held that in the present case the Claimants had not indicated how they were mislead by the first notification or that it was not possible for them to know the description of the land to be acquired by the original notification dated 22.12.1991. The description of the land in both the notifications was the same except to the extent of the area deleted by the corrigendum. He further held that the corrigendum did not have the effect of changing the entire complexion of the matter or the nature or the description of the land in question or the name of the owners. The learned Judge therefore rejected the Claimants contention and held that the material date for valuation is the date of the original notifications namely 26.12.1991. 34. In Raghunath vs. State of Maharashtra, (1988) 3SCC 294 the Supreme Court held as under: 9. Before concluding we must refer to one circumstance which was brought to our notice by learned counsel for the 19 petitioners and which has also been noticed in the judgment of the High Court. It appears that, between the date of withdrawal of the earlier writ petition (namely, August 23, 1983) and the issue of the second declaration under Section 6 (namely, April 4, 1985), the government had issued a fresh notification under Section 4 for the acquisition of certain lands. The lands in the two notifications under Section 4 do not completely overlap but it appears that some fields are common in both. No declaration under Section 6 appears to have been issued in furtherance of the second notification under Section 4 when the High Court heard the matter. Learned counsel for the petitioner points out that, at least in respect of such of the lands comprised in the Section 4 notification dated June 22, 1982 as are also covered by the subsequent notification under Section 4, it is legitimate to infer that the State Government has superseded the earlier notification by the later one. This contention is clearly well founded. We would, therefore, like to make it clear that in respect of the lands covered by the first notification under Section 4 which are also covered by, or comprised in, the second notification under Section 4, further proceedings regarding acquisition should be taken, in accordance with law, only in pursuance of the later notification and the proceedings initiated in respect of such lands by the first notification dated June 22, 1982 should be deemed to have been superseded. 35. In Hindustan Oil Mills Ltd. V/s. Special Dy. Collector (Land Acquisition)(1990) 1 SCC 59 it was 20 contended that the compensation awarded on the basis of the market value of the lands on the date of notification was incorrect and that it should have been awarded on the basis of the date of the publication of the subsequent notification. As all the counsel relied upon paragraphs 8 and 9 of the judgment in support of their respective submissions which were also based on the facts of the case before the Supreme Court, we will set them out in their entirety :- 8. Shri Sachhar submits that of the three notifications issued by the government, it is really the third dated February 28, 1963 that is the effective notification under Section 4. He points out that the notice under Section 4 read with Section 5-A issued to the company on March 8, 1963, refers to the notification dated February 28, 1963, as the one in pursuance of which that notice has been issued. He also points out that, while the first two notifications referred only to Sampatlal s lands (and that too inaccurately) it was only the third notification which for the first time mentioned the name of the company. He also submits that, as the notifications dated November 22, 1962 and February 28, 1963 purport to be by way of amendment to the notification of May 11, 1961, they should be treated as fresh notifications under Section 4. He refers to the language of Section 21 of the General Clauses Act, that any amendment can only be effected in the like manner and subject to like sanctions and 21 conditions, if any as the original notification that is sought to be amended. He, therefore, argues that the notification dated February 28, 1963 is the real and effective notification under Section 4, applicable to this case, in respect of both the lands belonging to the company and the lands belonging to Sampatlal. On the other hand, on behalf of the respondent, the point taken is that the intention of the government, even at the time of the first notification, was to acquire the entirety of survey No. 135/1. However, the government committed certain mistakes in describing the extent and ownership of these lands necessitating the subsequent amendments.