1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR First Appeal No. 115 of 1999. Baban Balaji Pokale and others vs. The Collector and others. ------------------------------------------------------------------------------------ ----------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. -------------------------------------------------------------------------------- CORAM : A.P. Lavande & R.V.More,JJ DATE : 22.8.2007 Heard Mr. S.V.Manohar, learned counsel for the appellants, Mrs. Jog, learned A.G.P. for respondent no.1 and Mr. G.E.Moharir, learned counsel for respondent no.2. None for respondents 3 to 7. This appeal is directed against the Judgment and order dated 6th October, 1988 passed by the Joint Civil Judge, Senior Division,Nagpur in Land Acquisition Case No. 10/90 dismissing the reference on the ground of limitation. The reference was sought by the appellants and respondents 3 to 7. The reference court held that the reference was not sought within the time prescribed under section 18 of the Land Acquisition Act (hereinafter called as 'the Act') and consequently rejected the reference. This appeal was admitted by this court on 2 22.4.1999 without any notice to the respondents more particularly respondents 1 and 2. Mrs. Jog, learned, A.G.P. appearing for respondents 1 and 2 states that the appeal preferred by the appellant is not maintainable since the impugned Judgment and order is not an award in terms of section 26 of the Act and, therefore, the appeal under section 54 of the Act is not maintainable. She has placed reliance on the judgment of this court in Mangilal Jawanmal and others vs. The Spl. Land Acquisition Officer, Thane (AIR 1978 Bombay 325). In the said case Division Bench of this court has held that if reference is rejected on the ground of limitation the award in terms of section 26 of the Act does not come into existence. Therefore, an appeal under section 54 of The Act which only lies against an award is not maintainable. Mr. Manohar, the learned counsel appearing for the appellants upon taking instructions from the appellant no.1 who is present in the court seeks leave to withdraw the appeal with liberty to file appropriate proceedings. Mr. Manohar submits that the delay in filing appropriate proceedings be condoned by this court. Mrs. Jog, the learned A.G.P. objects to the prayer for condonation of delay. 3 In view of the legal position as held in Mangilal Jawanmal's case (supra) we deem it appropriate to permit the appellant to withdraw the appeal with liberty to file appropriate proceedings against the impugned Judgment and order. Since the appellants have been prosecuting the appeal in good faith which was also admitted we hope that if the appellants file appropriate proceedings against the impugned Judgment and order the concerned Court/ authority shall take this factor into consideration while considering the prayer for condonation of delay. The appeal is allowed to be withdrawn with liberty as mentioned above. The Registrar (J) to refund court fees to the appellants if permissible under the rules. Judge Judge patle