-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION FIRST APPEAL NO. 1119 OF 1997 IN L. A. R. NO. 158 OF 1989 The State of Maharashtra ) (Through the Special Land Acquisition Officer, ) Metro Centre No.4, Panvel ).. Appellant (Vaitarna Hydro Electric Project , Nasik is deleted and substituted by Metro Centre No.4, Panvel by order dated 10th July, 2009 (Coram: Swatanter Kumar,C.J. & A.P.Deshpande, J.) Versus Shri Ashok Laxman Wani ) R/o Padaghe, Taluka Panvel, District Raigad ).. Respondent ALONG WITH FIRST APPEAL NO. 867 OF 1997 Ashok Laxman Wani ).. Appellant Versus Special Land Acquisition Officer, Metro ) Centre No.4, Panvel and another ).. Respondents ALONG WITH FIRST APPEAL NOS. 1199 OF 1996, 829, 866, 1118, 1120 OF 1997, 98/2000, 1510, 1511, 1512, 1513 OF 2006, 2051, 2052, 2053, 2054, 2055, 2056, 2057, 2058, 2059, 2060, 2061, 2062 OF 2007, 402, 403, 404 OF 2008, ALONG WITH CROSS OBJECTIONS (STAMP) NOS. 5817, 5818, 5819, 5826, 5828, 7415, 7416, 7417, 7419, 7421, 7423, 7424, 7426, 7427, 8203 OF 2008 AND -2- CIVIL APPLICATION NOS. 7209 OF 1997, 2565, 2566, 3441, 3481, 3482, 3483 of 2004 , 2677 OF 2006, 3421, 3783, 3784 OF 2007, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 3476, 3477, 3478, 3479, 3480, 3481, 3482, 3483, 3682, 3683, 3684, 3685 OF 2008 (C.A. Nos. 3484/2004 & 3784/2008 deleted and C.A. Nos. 3783/2007 and 1992/2008 added by order dated 10th July, 2009 (Coram: Swatanter Kumar,C.J. & A.P.Deshpande, J.) Mrs G P Mulekar, Assistant Government Pleader, for the State. Mr R V Pai with Mr S S Kulkarni for the Respondent-Claimant and Cross-Objectionists. Mr S G Surana for the Appellants-Claimants in F.A. Nos.1510 to 1513 of 2006. CORAM: SWATANTER KUMAR, C.J. AND A. P. DESHPANDE, J. JUDGMENT RESERVED ON : 16TH JULY 2008 JUDGMENT PRONOUNCED ON : 31ST JULY 2008 JUDGMENT : (PER SWATANTER KUMAR, C.J.) Common, but, question of some significance in law arises for consideration of the court in all these Appeals. Despite liberal construction of application of law of amendment in Appeals before the Court of competent jurisdiction, we are called upon to determine the issue, as to whether the provisions of Order 6 Rule 17 of the Code of -3- Civil Procedure, 1908 are applicable to the proceedings including the Appeal proceedings arising under the Land Acquisition Act, 1894 and if the answer is in the affirmative, what is the scope and limitation of such application. To examine various facets of this, reference to the facts giving rise to these Appeals would be necessary. 2. Vide its judgments dated 4th May 1996, 17th January 1997, 22nd August 2005 and 29th August 2005, the Joint District Judge, Raigad at Alibaug, answered 23 Land References made to it by the Collector under Section 18 of the Act. Aggrieved from the enhancement granted under the impugned judgments, the State filed present Appeals for reduction of the compensation awarded, while the Claimants being dissatisfied from the compensation awarded to them by the learned Court, have come before this Court for enhancement of compensation. 3. Government of Maharashtra issued a Notification under Section 4 of the Act on 24th September 1986 proposing to acquire huge chunk of land from revenue estate of Village -4- Padaghe, Taluka Panvel, District Raigad for a public purpose, namely, New Bombay Project. Declaration under Section 6 was issued on 10th May 1987. The SLAO exercising the powers of the Collector made and published his Award under Section 11 of the Act on 18th September 1989 awarding compensation to the Claimants at the rate of Rs.4/- per sq. mtr. The Claimants appeared to have accepted the compensation without prejudice and filed References under Section 18 of the Act claiming compensation at the rate of Rs. 50/- per sq. mtr. which was subsequently amended to Rs. 500/- per sq. mtr. These claim petitions, presented before the S.L.A.O. on 8th November 1989, were referred to the Reference Court by the Collector on 29th November 1989. The parties produced documentary and oral evidence before the Reference Court. The Reference Court pronounced its judgments and answered the Reference in L A R Nos.158 of 1989, 145 of 1989, 147 of 1989 and 148 of 1989 on 4th May 1996 enhancing the compensation payable to the Claimants at the rate of Rs.160/- per sq. mtr. While awarding this compensation to the Claimants, the Reference Court primarily relied upon the report of the Valuer which was prepared by -5- Economist of CIDCO, Exhibit 53, and calculated the cost of the land in proportion to the cost of project. While relying upon the cost in the area of steel market which was developed as Kalamboli. The Valuer arrived the price of the developed plot was fixed at Rs.475/- per sq. mtr. It also noticed the fact that the price of the developed land in the year 1986-87 was about Rs.346/- per sq. mtr. Reliance was also placed upon the land sold by CIDCO and MIDC. After the appreciation of this evidence, the Reference Court awarded the compensation taking it to be the just and fair market value of the land prevalent at the relevant time i.e. as on 24th September 1986. 4. In all, 23 References were answered by the Reference Court. Against the judgment of the Reference Court, 19 Appeals have been preferred by the State praying for reduction of compensation and/or restoration of the Collector's Award, while in 15 State Appeals the Claimants have filed Cross-Objections claiming enhancement of the awarded amount. The Claimants have also filed 8 Appeals claiming the same relief. During the pendency of these proceedings, 19 Civil Applications have been filed by the -6- Claimants for amendment either in their respective Appeals or in the Cross-Objections filed by them primarily praying for substituting the amount of Rs.500/- per sq. mtr. claimed by them on account of compensation for acquisition of their lands to Rs.5000/- per sq. mtr. Furthermore, 10 Civil Applications also have been filed by the Claimants in some of the Appeals/Cross Objections seeking leave of the Court to place additional documents, i.e Exhibits “A” to “D” to their respective applications, on record. These documents are (i) the judgment of the court in the case of State of Maharashtra vs. Trimbak J. Thakur, 2008 (1) AIR Bombay Reporter 196 (First Appeal No.646 of 1995 decided on 21st June 2007); (ii) plan showing acquired land and its surrounding areas prepared on the basis of the visit of the Architect on 24th March 2008; (iii) letter of allotment dated 16th October 1984 allotting the land for a weight bridge in truck terminal at Kalamboli; and (iv) letter dated 18th August 1997 allotting land for shopping-cum-residential use.. It may also be mentioned that in some of the cases, a common prayer has been made for amendment and for leading additional evidence limited to placing the judgment in Trimbak Thakur (supra) on record. -7- 5. Civil Application Nos. 2677 of 2006, 3421 of 2007, 3784 of 2007 and 3783 and 3784 of 2008 are for bringing the legal representatives of the deceased Claimants/ Respondents on record. There is a delay in filing the Applications. The Applicants have also prayed for setting aside the abatement. There is no objection. Delay in filing the Civil Applications is condoned. Abatement is set aside. There is no opposition to the Civil Applications for bringing the legal representatives on record and consequently they are allowed. The legal representatives of the deceased Respondents/ Claimants would be entitled to the benefit of this order in accordance with law and subject to just exceptions. These Civil Application are accordingly disposed of. 6. Civil Application No. 7209 of 2007 has been filed by the State for praying for stay of the judgment and award of the learned Reference Court. As the main judgment in the Appeal itself is being pronounced, this Civil Application does not survive for consideration and is accordingly disposed of. -8- Scheme of the Act in relation to matters in controversy in the present Appeals. 7. Let us first examine the relevant provisions and scheme of the Land Acquisition Act. A Notification under Section 4 of the Act is commences a definite step towards acquisition proceedings which in its nature and substance is compulsory acquisition proceedings. After following the prescribed procedure under Sections 5A, 6 and 9 of the Act, the Collector exercises his powers to conduct complete enquiry and makes an Award under Section 11 of the Act. The enquiry by the Collector as contemplated under Section 11, relates to measurements, value, claims and all other ancillary matters thereto. The Award so made by the Collector attains a status of finality and is status of conclusive evidence between the Collector and the persons interested of true area and value of the land and apportionment of compensation amongst the interested persons in terms of Section 12 of the Act. In determining the amount of compensation, the Court is to be guided by provisions contained in Sections 23 and 24 of the Act except to the extent of making a correction of clerical errors under the scope of Section 13A of the Act. Once the -9- Collector forwards the application under Section 18 to the Reference Court for determination, becomes functus officio in regard to acquisition proceedings in so far as his power and authority under Part II of the Act is concerned. 8. Part III of the Act deals with reference to the Court, procedure to be followed thereupon, and rights of interested persons under Section 18 of the Act who has not accepted the Award or accepted it without prejudice to his rights enabling him to move an application to the Collector with the matter or reference by the Collector for determination of the Court, his objections as to measurement of land, amount of compensation and the person to whom it is payable or apportionment of such compensation amongst the interested persons. In other words, in an application under Section 18(1) of the Act, the Applicant is expected to raise a challenge to the awarded compensation by the Collector in his Award under Section 11 of the Act and in terms of Section 18(2) of the Act, the application shall state the grounds on which the objection to the Award is being taken. In other words, application under Section 18 is not a mere formality but is exercise of a -10- substantive legal right in the manner specified in the provisions. 9. Once the provisions of law states how a right is to be exercised, then the right should normally be exercised in that manner alone and no other. The expression “shall'' has been cautiously used by the Legislature which indicates its intent that the application should state grounds on which objection or exception to the Award is being taken. It is expected of the Applicant to be aware of what was the value of his land at the time of issuance of the Notification under Section 4 of the Act as that date alone is relevant for determining compensation payable to the Claimants. He is at liberty to raise all factual and legal objections. This is a reference by the Collector to the Court of competent jurisdiction and proceedings of reference are expected to be carried out in accordance with law. Proviso to Section 18(2) spells out a limitation within which the application contemplated under Section 18 of the Act is to be filed. The period of limitation depending on the facts of a given case would be six weeks to six months. Six months being the outer case limit, in either of the events, -11- where the Applicant was present before the Collector at the time when the Award was made or where he was served with a notice under sub-section (2) of Section 12 of the Act. This specific period of limitation is mandatory and is not flexible either in its term or by any enunciated principles of necessary implication. In fact, this legal issue is no more res integra and stands finally settled by the judgment of the Supreme Court in the case of Mahadeo B. Patil vs. State of Maharashtra, 2006 Mh. L. J. SC 206, where referring to Raja Harish Chandra Raj Singh vs Dy. Land Acquisition Officer, AIR 1961 SC 1500 and State of Punjab vs Satinder Bir Singh, (1995) 3 SCC 330, the Court held as under :- “ 14. We are here not concerned with the correctness of the decision, but the fact remains that having considered the claim of the appellant for compensation, the Special Land Acquisition Officer rejected the claim. This does amount to the making of an award, commonly described as “nil award”. If the appellant was aggrieved by such an award, it was open to him to seek reference under section 18 of the Act which the appellant actually did. We, therefore, cannot hold that no award as envisaged by section 11 of the Act was declared on 29/8/1994, since the claim of the appellant was considered and was totally rejected. There was, therefore, no question of giving any calculation of the -12- manner in which the compensation was computed. Since, the application under section 18 was not filed within six weeks of the receipt of notice under section 12(2) of the Act, the High Court did not commit any error in holding that the application was barred by limitation. It was not disputed before us that the Land Acquisition Officer making a reference, or the Court considering a reference under section 18 of the Act has no power of condonation of delay in making an application under the aforesaid section.” 10. Even a Division Bench of this Court while following the above principles, held in the case of The State of Maharashtra vs. Sadashiv Ganpat Avhad and others, First Appeal No.251 of 1996, decided on 31st January 2008, as under :- “ 18. We are unable to find any merit in the contention raised on behalf of the claimants. It is neither disputed before us nor was disputed before any other for a that in the applications filed by the claimants under Section 18 of the Acquisition Act they had categorically and specifically admitted that they had received the notices under Section 12(2) of the Acquisition Act on 31.3.1986. The applications under Section 18 of the Acquisition Act are dated 5th June, 1986. No purpose would be served by remanding the matter to the Reference court inasmuch as the claimants cannot be permitted to go back from their admission of receipt of a -13- statutory notice. Furthermore, it is not for any other purpose that the dates were mentioned in the application. The applicants were fully aware that they are filing applications under Section 18 of the Acquisition Act and had already received the notices under Section 12(2) of the Acquisition Act. These applications are signed by the applicants and that fact is also not in dispute. That being so, it is not necessary for us to set aside the judgments of the Reference Court and remand the matters to that Court. It is settled principle of law which in fact was not even disputed before us that the Collector and for that matter any other Court has no power to condone the delay in filing an application under Section 18 of the Acquisition Act. That being the settled position of law, again it will be futile for the Courts to accept the contentions raised on behalf of the claimants for remanding the matter to the Court of the learned Joint District Judge. .... 19. In the light of the enunciated principles and the documents available on record before us, it is not required of this Court to remand the matter to the learned Joint District Judge. The reference applications have thus been erroneously decided by the learned Joint District Judge, in fact, under a mistaken impression of fact and law both. All the above appeals of the State thus necessarily should be allowed and we hereby allow the same, set aside the judgment of the reference Court in favour of the appellants in the above noticed appeals, while leaving the parties to bear their own costs.” -14- 11. From the above analysis of the above settled principles of law, it is clear that the limitation prescribed under Section 18 of the Act is inflexible, uncondonable and is capable of rigid interpretation. Its effect on the merits of the case, we shall proceed to discuss shortly. 12. The requirement of law is that in a application under Section 18 of the Act, the Claimant should state the grounds on which objection to the Award is taken and it should be comprehensive enough to require the Applicant to state with exactitude what compensation he desires to receive as a result of disposal of his objection and particularly what is the deficiency in amount of compensation awarded to him, guided by the requirement of determination of compensation under Sections 23 and 24 of the Act. This view would find support from the language of Section 19 of the Act where the Collector while making a reference has to provide information to the Court in writing, amongst others, stating the details of land, names of persons interested, amount awarded and particularly give the grounds on which the amount of compensation was -15- determined if whether the objections raised by the applicant relating to deficiency or otherwise of the amount of compensation determined. The language of these two provisions clearly indicate that the requirement is not a mere formality or expects the applicant to make vague averments. The applicant as well as the Collector is expected to adhere to the requirements of law in this regard. 13. The Claimants get two opportunities before the Collector to clearly state the amount of compensation which they actually claim for acquisition of their respective lands. They are within their rights to lead such evidence and raise such objection in regard to measurement, valuation or otherwise in pursuance to the notice issued under Section 9 and prior to passing of an Award under Section 11 of the Act. The Collector is to form a distinct opinion as to what compensation, in his opinion, should be allowed for the land acquired, where after he has to send such an Award for approval to the appropriate Government and then alone would make the Award public. Secondly, after the pronouncement of the Award, while making an application under Section 18 of -16- the Act, the Claimants can state the amount which they wish to claim while raising an objection with regard to quantum of compensation awarded to them and the grounds in support thereof that too within the period of limitation prescribed under those provisions. Once that stage is over, the Claimants would be bound by the amount stated by them in their reference application. In the scheme, the legal provisions, it appears to us that the Claimants may not be bound by their admission made in response to Section 9 notice in regard to quantum of compensation claimed in an application under Section 18 of the Act. 14. Section 25 of the Act places an obligation upon the Reference Court that it cannot award an amount less than the amount awarded by the Collector. In other words, so to say, the Award made by the Collector is final in absolute terms vis- a-vis the Government and Court can only enhance it to the extent of the amount claimed by the Claimants in the reference petition under Section 18 of the Act. The Award so made by the Court in its judgment would then become a decree within the meaning of Section 2 clause (2) and Section -17- 2 clause (9) of the Code of Civil Procedure. 15. By the Act of 68 of 1984, Section 25 of the Act was amended with effect from 24th September 1984. The unamended provisions of Section 25 placed an embargo upon the authority of the Court to award excess compensation to the amount awarded by the Collector, in some cases. It provides that when an applicant has made a claim for compensation pursuant to any notice given under Section 9, then the amount awarded to him by the Court shall not exceed the amount so claimed or be less than amount awarded by the Collector under Section 11 of the Act. Secondly, when the applicant has refused to make any such claim or has omitted without sufficient reason to make any such claim, the amount awarded by the Court shall not exceed the amount awarded by the Collector. Still further, when the applicant has omitted for sufficient reason to make such a claim, the amount awarded by the Court shall not be less than the amount awarded by the Collector. All these three stages were relatable to the claim made by the Claimant in furtherance to a notice under Section 9 of the Act. The purpose was not to -18- grant amount higher than the amount awarded by the Collector except in one case where it could exceed the amount awarded by the Collector. 16. By amendment of Section 25, the restriction placed upon the power of the Court to award limited compensation has been removed. Thus, determination of compensation in excess of the amount awarded under Section 11 award is permissible. What amount is now claimed by the Claimants for acquisition of their lands may be much in excess to the amount claimed by them before the Collector in response to the notice issued under Section 9 and the Court can award an amount in excess thereof. However, the extent of claim obviously would be controlled by the amount stated by the Claimants in their reference petition under Section 18 of the Act. The proceedings before the Court are initiated by virtue of a reference made under Section 18 of the Act, as a reference proceedings. The Claimants have no right to commence the proceedings before the Reference Court directly on their own within the ambit and scope of Section 18 of the Act. The Collector is expected to comply with the -19- requirements of Section 19 before he forwards a reference while ensuring that the reference has been filed within the prescribed period of limitation and thus satisfying the requirements of provisions of Section 18(1) of the Act. The Scheme of the Act appears to be that the Claimant would be bound by the amount claimed in his Reference Petition, it being remedy of limited jurisdiction and being initiable only upon a reference in accordance with law. There may be cases where the Claimants have not been able to take advantage of this channel of legal remedy and could not file References under Section 18 of the Act, in that event they could take recourse to the proceedings under Section 28A of the Act praying before the Court for re-determination of the compensation. In terms of Section 28A, where the Court allows to an applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same Notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they have not made an application to the Collector under Section 18, by written application within three months from -20- the date of the Award of the Court, claim that amount upon re- determination. 17. Section 28A thus was introduced in the Statute book to provide a kind of alternative remedy and an opportunity to all aggrieved parties whose lands have been acquired by the same Notification even if they were not able to invoke the remedy of Section 18 and where one or more persons relating to some Notification of acquisition of same lands have received higher compensation by award of the Court. It introduces a kind