1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 246/2000 with MISC. CIVIL APPLICATION NO.146/2010 Goa Industrial Development Corporation, constituted under the provisions of the Goa Industrial Development Corporation Act, having Office at Panaji, Goa. ...... Appellants. V/s. (1)Smt. Hirabai Sripad Naik, resident of Bhiturli Peth, Bicholim, Goa. (2) Shri Vaikunth Shripad Naik, resident of Bhiturli Peth, Bicholim, Goa. (3) Smt. Anuradha Vaikunth Naik; (4) Shri Subray Sripad Naik; (5) Smt. Indira Subray Naik; (6) Shri Datta Sripad Naik, All residents of Gonsalves House, Kerant, Catranzalem-Goa. (7) Smt. Pratibha Datta Naik, resident of Gonsalves House Kerant, Caranzalem- Goa. (8) Shri Keshav Sripad Naik; (9) Smt. Geeta Keshav Naik; (10) Shri Prakash Sripad Naik; 2 (11) Smt. Sandhya Prakash Naik; (12) Shri Gopal Sripad Naik; (13) Shrimati Roshan Gopal Naik All residents of Bhiturli Peth, Bicholim-Goa. (14) Smt. Usha Damodar Naik; (15) Shri Damodar Hiru Naik, Both residents of 5-Rukmini Niwas, S.S. Wagh Road, Dadar, Mumbai – 14. (16) Smt. Kala Govind Joshi; (17) Shri Govind Ramkrishna Joshi (expired) through legal heirs : (a) Shri Ramesh Govind Joshi; (b) Smt. Reshma Ramesh Joshi; (c) Shri Jeewan Govind Joshi; (d) Smt. Vandana Jeevan Joshi; (e) Shri Mohan Govind Joshi; (f) Smt. Medha Mohan Joshi; (g) Smt. Anjali Pradeep Bhobe; (h) Shri Pradeep Janardhan Bhobe, All residents of Krishna Kunj, Tilawadi, Khanapur Road, Belgaon. (18) Smt. Anusuya Datta Naik Panvelkar, Dongrim, Goa. (19a) Smt. Sunil Ramchandra Keny; (19b) Shri Ramchandra Keny, Both residents of Kundaikar Nagar, 3 Panaji, Goa. (19c) Smt. Anila Srivallabh Pai Fondekar; (19d) Shri Srivallabh Pai Fondekar, Both residents of Margao, Goa. (19e) Smt. Nanda Pramod Kamat; (19f) Shri Pramod Kamat, Both residents of Neura, Goa. (19g) Shri Jyoti Datta Panvelkar, 19h) Smt. Rekha Jyothi Panvelkar, Both residents of Dongrim, Goa. (19i) Miss Mala Datta Panvelkar, resident of Dongrim-Goa. (20) Smt. Nila Moreshwar Desai (21) Shri Moreshwar Vaman Desai; Both residents of G-3, Golden Summit Apartments, Opposite Regina Mundi High School, Chicalim-Goa. (22) Smt. Shailaja Radhakrishna Sakhalkar; (23) Shri Radhakrishna Shivaji Sakhalkar, Both residents of C/o. Chemicals & Fibre India Lt. (CEL), Post Box No.87, Cafi Housing Colony, Belapur Road, Thana District, Maharashtra. (24) Smt. Sunita Shrikrishna Sakhardande; (25) Shri Shrikrishna Vaman Sakhardande, 4 Both residents of Gayaneshwari Building, Block No.57, First Floor, Opposite Aarey Road, Goregaon (East), Mumbai – 63. 26) Deputy Collector (LA & Land Acquisition Officer, Panaji, Goa. ......... Respondents. Mr. M. S. Sonak, Advocate for the appellant. Mr. R. G. Ramani, Advocate for respondents No.2 to 13, 20, 21. CORAM :- A.S. OKA, J. DATE :- 18th June, 2010. P.C. :- The appellant has taken an exception to the Judgment and Award dated 16th August, 2000 passed by the learned Addl. District Judge, Panaji in a reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). The reference was made at the instance of the first to twenty fifth respondents. At the outset, the learned Counsel appearing for the appellant invited attention of this Court to Misc. Civil Application No.146/2010. The said application is made for grant of leave to amend the memorandum of appeal for adding grounds. In the 5 alternative it is contended that a leave may be granted to urge the grounds set out in paragraph 5 of the said application at the time of the hearing of the appeal. 2. The learned Counsel appearing for the appellant pointed out that the award under Section 11 of the said Act was made on 20th July, 1984 and the notice under Section 12(2) of the said Act was duly served to the original claimants on 11th February, 1985. His submission is that the rubber stamp affixed on the original application under Section 18 of the said Act shows that it was filed on 2nd April, 1985. He submitted that the reference application was not filed within the stipulated period of six weeks from the date on which the notice under Section 12(2) of the said Act was served to the claimants. He invited attention of this Court to the order dated 19th February, 1990 passed by the reference Court on the office objections raised by the Office of the District Court that the reference was not within time. He submitted that as the original application shows that it was filed on 2nd April, 1985, the same is clearly barred by limitation and the reference itself was not competent. 6 3. The learned Counsel appearing for the original claimants submitted that the reference was made in the year 1988 and in the year 2010 for the first time at the time of final hearing of the appeal, the appellant has belatedly raised a contention regarding bar of limitation. He submitted that the said contention was not raised by the appellant before the reference Court. Inviting attention of the Court to the Roznama of the reference application, he submitted that on the date on which the order dated 19th February, 1990 was passed by the reference Court, the appellant was represented by an Advocate and after hearing the parties, objection regarding bar of limitation was overruled. He submitted that thereafter the appellant participated in the proceedings of the reference without raising any objection as regards bar of limitation. He submitted that even in the memorandum of appeal filed in the year 2000, the said ground has not been taken and at the fag end of the proceedings, the appellant cannot be permitted to raise the ground. 4. The learned Counsel appearing for the claimants invited attention of the Court to the reply filed by the claimants to the Misc. Civil Application. He pointed out that Annexure R-1 shows that the 7 reference application was filed on 21st March, 1985 and office copy of the reference bears acknowledgment recording the said date. He invited my attention to Annexure R-2 which shows that on 10th March, 1986 deficit Court fee was paid by the claimants. He invited attention of the Court to the letter dated 21st January, 1988 sent by one of the claimants to the Collector in which the date of filing reference is specified as 21st March, 1985. Lastly, he invited attention of the Court to the letter dated 6th September, 1988 sent by the Dy. Collector and Land Acquisition Officer to one of the claimants, in which he clearly admitted that the application under Section 18 of the said Act was filed on 21st March, 1985. He submitted that all these documents were considered by the reference Court and after being satisfied that the application for reference was filed on 21st March, 1985, the objection raised regarding bar of limitation was overruled. He submitted that now it is too late in the day to allow the appellant to raise the objection, especially when some of the original claimants have expired. 5. The learned Counsel appearing for the claimants submitted that now the appellant is estopped from raising the contention of bar of limitation. He submitted that after having participated in the 8 proceedings of the reference, without raising any objection, now the appellant is precluded from raising the said objection. He placed reliance on the decision of the Apex Court in the cases of State of Maharashtra vs. Hindustan Construction Company Limited, ((2010) 4 SCC 518); M/s. Sathyanarayana Brothers (P) Ltd., vs. T.N. Water Supply and Drainage Board, (AIR 2004 SC 651); Inder Sain Mittal vs. Housing Board, Haryana and ors., (AIR 2002 SC 1157) and State of Rajasthan v. M/s. Nav Bharat Construction Co., (AIR 2005 SC 2795). 6. I have given careful consideration to the submissions. I have perused the record of the reference Court. It must be noted here that the original reference application made by the claimants is on record on which the rubber stamp of the Collectorate of Goa has been affixed which records that the application was received on 2nd April, 1985 under Reg. No.6922. None of the documents annexed to the reply of the claimants to the Misc. Civil Application, except the application dated 10th March, 1986 (Annexure R-2 of the reply to civil application), form part of the record. The documents marked as Annexures R-1, R-3 and R-4 annexed to the reply of the 9 respondents do not form part of the papers forwarded by the Land Acquisition Officer to the reference Court or the record of the reference Court. The reference was forwarded by the Land Acquisition Officer along with covering letter dated 5th September, 1988. There is a specific entry against column no.7 in the said letter that the said reference application was not within time. The said letter does not incorporate the date on which the reference application was filed. It appears that the Superintendent of the District Court raised an objection on 14th November, 1988 as regards bar of limitation on the basis of the said remark in the letter of the Land Acquisition Officer. The order dated 19th February, 1990 does not refer to the fact that the reference application was filed on 21st March, 1985. The said order does not refer to the date of filing or any other document on which now the respondents are placing reliance. Thus, the issue of bar of limitation was raised before the reference Court in the form of an objection which has been decided by the reference Court by the aforesaid order. If the reference application is not filed within the limitation, the reference itself is incompetent and the reference Court does not get jurisdiction to decide the reference on merits. 10 7. Section 105 of the Code of Civil Procedure Code, 1908 (hereinafter referred to as “the said Code”) reads thus : “ 105. Other orders. - (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.” In view of sub-section (1) of Section 105 of the said Code, in an appeal which may be preferred against an award passed in a reference under Section 18 of the said Act, an order made during the pendency of the reference can be subjected to a challenge. Sub-section (2) of Section 107 of the said Code provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the said Code on Courts of original 11 jurisdiction in respect of suits instituted therein. The present appeal is continuation of the original proceedings of reference before this Court. 8. This is a case where the issue of limitation was raised in the form of an office objection which has been decided. It was not necessary for the contesting parties to immediately challenge the order passed on the objection regarding bar of limitation, as the said challenge could have been agitated in an appeal, which may be filed against the said award in case the said award was adverse to them. 9. Rule 2, of Order XLI of the said Code, reads thus : “2. Grounds which may be taken in appeal. - The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.” 12 There is abundant power vested in the Court of appeal to permit the appellant to urge a ground of objection which is not set forth in the memorandum of appeal. Even if an issue of limitation is not raised in the appeal, once it is brought to the notice of this Court that the issue arises, this Court is not precluded from considering the said issue as the same goes to the root of the matter inasmuch as if the reference application was not within limitation, the reference Court could not have considered the reference application on merits. This is not the case where the claimants were never put to notice that the issue of bar of limitation arises. When the issue was brought to the notice by the office objection raised by the Superintendent of the reference Court, an opportunity was available to the claimants to satisfy the reference Court that the reference application was within limitation. There is no specific averment in the reply of the claimants to the Misc. Civil Application that the documents marked as Annexures R-1, R-3 and R-4 were produced before the reference Court when the reference Court dealt with the objection regarding limitation. What is on record of the reference Court is the original application under Section 18 of the said Act which, on the face of it, shows that it was filed on 2nd April, 1985. 13 If the application was filed on 2nd April, 1985, it was clearly barred by limitation. 10. In the decision relied upon by the learned Counsel appearing for the applicants in the case of Hindustan Construction Company Limited (supra), the matter before the Apex Court arose out of an application for setting aside award under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter, referred to as “the Act of 1996”). In the case before the Apex Court, it appears that a ground which was not urged in the application under Section 34 of the Act of 1996 was sought to be urged by seeking an amendment in the memorandum of arbitration appeal by adding a new ground. In the said context, the appellant was not permitted to urge the said ground. The other decisions of the Apex Court cited by the learned Counsel appearing for the claimants are in support of the contention that after having participated in the proceedings without raising any objection to proceedings before the arbitrator, the party was precluded and estopped from raising the objection to the limitation while challenging the award. In the present case, this Court is dealing with an appeal against an award under Section 18 of the said Act. Before the reference Court, issue of bar of limitation arose and has been purportedly decided. The 14 said issue has to be considered by the appellate Court, inasmuch as even if the opponents to the claim application under Section 18 of the said Act do not raise the said issue, it is the duty of the Court to consider the said issue. Apart from all this, there is an order passed by the reference Court holding that the reference application was within the limitation. 11. The claimants have come out with a new documents at Annexures R-1, R-3 and R-4 in support of their contention that the reference application was filed on 21st March, 1985. Since the said documents are not on the record of the reference Court, in my view, an opportunity deserves to be granted to the parties to adduce evidence on the issue of bar of limitation. This is a case where this Court will have to exercise powers under Rule 25 of Order XLI of the said Code. The issue which arises for consideration is “whether the application for reference under Section 18 of the Land Acquisition Act, 1894 is filed within limitation?” To avoid prejudice to the claimants, considering the fact that the acquisition proceedings were initiated nearly 20 years back, the appeal will have to be kept pending and finding of the reference Court will have to be invited on the said issue. The Misc. Civil Application made by the appellants will have to be allowed in 15 terms of prayer clause (b) in view of Rule 2 of Order XLI of the said Code. 12. Hence the following order is passed : (A) Misc. Civil Application No.146/2010 is allowed in terms of prayer clause (b). (B) The parties are directed to appear before the learned District Judge, North Goa, at Panaji on 26th July, 2010 at 10.00 a.m.. (C) The reference Court will record a finding on the following issue “whether the application for reference under Section 18 of the Land Acquisition Act, 1894 is filed within limitation ? (D) Needless to say that the reference Court will permit the parties to adduce the evidence on the said issue. (E) The finding on the said issue shall be recorded by the reference Court on or before 30th October, 2010. (F) The record of the reference Court shall be forwarded by the Registry to the reference Court to enable the reference Court to decide the issue. (G) The reference Court will forward the finding along with evidence recorded together with the record of the case to this Court on or before 16th November, 2010. 16 (H) The Advocates on record appearing for the parties in this appeal shall be provided with true copies of the finding recorded by the reference Court on the said issue. It will be open for the parties to raise objections to the finding of the reference Court by filing affidavits before this Court. (I) It is clarified that the observations made in this order are for limited purposes of issuing a direction to the reference Court to decide the issue of limitation. None of the observations shall be construed as any finding by this Court on the issue of bar of limitation. All contentions of the parties, on the issue of bar of limitation, are expressly kept open. A.S. OKA, J. ssm.