1 THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1024 OF 1996 Atmaram Chima Mhatre Since deceased through legal heirs & Ors. ...Appellants (Org.Claimants) Versus The Special Land Acquisition Officer, Panvel ...Respondents. WITH FIRST APPEAL NO. 17 OF 1996 The State of Maharashtra ....Appellant Versus Atmaram Chima Mhatre, Since deceased through legal heirs & Ors. ....Respondents (Org. Claimants) Mrs. G.P. Mulekar, AGP for the Appellant in FA.17 of 1996 Mr. R. S. Datar, Advocate for Respondent Nos. 1/1 to 1/3 and 1/3 to 9 in First Appeal No.17 of 1996 and for Appellants in First Appeal No.1024 of 1996. Mr. D. S. Sawant for Respondent Nos. 1/6, 1/7 and 1/8 in First Appeal No.17 of 1996 and for Appellants in First Appeal No.1024 of 1996. CORAM : A.P. DESHPANDE & R. V. MORE, JJ. DATE : 18th MARCH, 2010. P.C.: The Appeal No.1024 of 1996 is filed by the Claimants seeking enhancement of the compensation awarded by the Reference Court. 2 Whereas Appeal No.17 of 1996 is filed by the State of Maharashtra, questioning the correctness of the award passed by the Reference Court awarding compensation @ Rs.5/- per square metre. The Special Land Acquisition Officer has granted the compensation @ Rs.1.50 paise, per square metre. The learned AGP appearing for the State has invited our attention to the application moved by the Claimants under section 18 of the Land Acquisition Act, 1894 (herein after referred to as “ the Act”) before the Collector, wherein, the following statement is made: “ That notice under section 12(2) of the Act was received to the Petitioner on 13-8-1986 and immediately approached and protested and the Petitioner has accepted the amount on .... - .... - 1986 under severe protest”. 2. The award is passed on 4th July, 1986 whereas, according to the said statement made by the Claimants’ Advocate in the application moved under section 18 of the Act, notice under section 12(2) was served on 13th August, 1986 and, if that, be taken to be correct, the Reference itself is barred by limitation, as the same is filed on 12th December, 1986, the limitation being of six weeks. Per contra, the learned Counsel for the Claimants has invited our attention to the Reference Order passed by the 3 Special Land Acquisition Officer referring the dispute to the District Judge, Raigad, dated 15th December, 1986, wherein it is observed by the Special Land Acquisition Officer that: “ The Award is declared on 4th July, 1986. The notice under section 12(2) of the said Act was issued on 21st July, 1986 and was received by the person concerned on 30th July, 1986. The Application is received on 12th December, 1986 and the same is in time”. 3. Thus, the reference was made by the Special Land Acquisition Officer as he perceived the application to be within limitation. There appears to be difference in the date of receipt of notice under section 12(2) of the Act, as mentioned in the Application under section 18 of the Act, by the Claimants, so also, one mentioned in the communication dated 15th December, 1986 from the Land Acquisition Officer addressed to the District Judge. According to the learned Counsel for the Claimants, the issue of limitation was never raised either before the Collector or before the District Judge and hence, parties did not have any opportunity to contest the said issue. Perusal of the documents referred to herein above indicate that different dates are mentioned in regard to the date of service of notice under section 12(2) of the Act. Copy of the notice and its acknowledgment 4 are not filed on record. The learned Counsel for the Claimants has placed a reliance on a judgment in the case of State of Maharashtra & Anr. Versus Sadashiv Ganpat Avhad reported in 2007 (6) Bom. C.R. 430 to contend that if objection in regard to limitation is permitted to be raised belatedly, the Claimants cannot be taken by surprise. The learned Judge, to whom reference was made on account of conflicting views expressed by the two learned Judges of the Division Bench, concurred with the view expressed by Justice Kanade. It is observed in paragraph 14 of the said judgment (supra) that the learned Judge is in agreement with the view expressed by Justice Kanade. The relevant observations in paragraph 14 read thus: “ I fully agree with the view taken by learned Brother Kanade J., in paragraph No.58 of the aforesaid judgment that "even if the State is permitted in a given case to raise an objection regarding delay in filing of reference after a lapse of nearly 19 to 20 years, the claimants cannot be taken by surprise and merely by referring to certain averments in the claim applications which are on record, an inference cannot be drawn without giving a reasonable opportunity to the 5 claimants, particularly when the limitation is a mixed question of fact and law".” 4. We are fully in agreement with the view expressed in paragraph no.14 of the said judgment. As we are of the view that the Claimants need to be afforded an opportunity to contest the objection in relation to the reference application being barred by limitation, we deem it appropriate to remand the matter back to the Reference Court for de novo inquiry touching objection in relation to the bar of limitation. Hence, we dispose of the appeals, by passing the following order : 1. The Appeals are partly allowed and the impugned Judgment and Award passed by the Reference Court is quashed and set-aside. 2. The matter is remanded to the Reference Court for de novo inquiry in regard to the objection raised by the State about reference being barred by the limitation. 3. The Reference Court shall, after affording an opportunity of hearing to the Claimants to contest the objection, decide the reference on merits, in accordance with law. 6 5. The learned Advocate appearing for the Claimants undertakes that the Claimants will appear before the Reference Court on 19th April, 2010. As the Claimants have undertaken to appear before the Reference Court, the notices from the Reference Court to the Claimants, stands dispensed with. 6. The learned AGP to communicate this Order to the Officers concerned in regard to the next date fixed before the Reference Court being 19th April, 2010. 7. Record and proceedings, be sent back immediately. 8. We hope and trust that the Reference Court will decide the matter as expeditiously as possible. Sd/- Sd/- (R.V. MORE, J.) (A.P. DESHPANDE, J.)