SHARADCHANDRA GANESH MULEY A v.

STATE OF MAHARASHTRA AND ORS.

AUGUST 14, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Land Acquisition Ac~ 1894:

Sections 4(1), 11(2), 11-A, 12(1)-Notification u/s. 4(1)-Cltallenge to in writ petition before High Court-Dismissal of-Award by Land Acquisition C Officer--Period of Limitation for-Computation of-Held, award is conclusively made on the date Land Acquisition Officer signed and sealed it, and not when claimant received copy thereof

Code of Civil Procedure, 1908 :

Section 11; Explanation IV-Constructive resjudicata-Doctrine of 'might and ougltt'-Landowner's Writ challenging notification u/s. 4(1) of Land Acquisition Act pendin~Amendment Act 68 of 1984 coming into force meanwhile-Held, defence of bar u/s. 11-A being available to land owner but not availed of, doctrine of constructive res judicata applies in subsequent writ petition.

The Land-owner-claimant, after unsuccessfully challenging before the High Court initially the notification under section 4(1) of the Land Acquisition Act, 1894 and later the award made by the Land Acquisition Officer after the decision of the High Court in the earlier writ petition, F tiled the appeals by special leave against both the judgments of the High Court.

Tht! appellant contended that the award made by the Land Acquisition Officer, was without jurisdiction as the same was not made within two years from the date of decision of the High Court in the earlier writ G petition.

Dismissing the appeals, this Court

HELD: 1.1. The award was clearly made within two years from the judgment of the High Court. The High Court gave its judgment on H 693

A 31.3.1992 whereas the Land Acquisition Officer made the award on March 30, 1994 under his signature and seal. Under s.12(1) of the Land Acquisition Act, 1894, it is conclusive evidence of making of the award. Because of the mere fact that the appellant had received the copy of the award on April 12. 1994, it cannot be said that the award was made on the date.

[696-B; 695-A-B; 695-G]

1.2. Under s.11(2) of the Act, it is mandatory that the authorities shall obtain prior approval of the comptent authority or the State Government in case where the value of the lands exceeds the value prescribed under the rules made by the appropriate Government. The award clearly indicates that on May 17, 1993 endorsement was made C "subject to prior approval". Obviously, the award was made on May 17, 1993 and after obtaining the prior approval, it was signed by the Land Acquisition Officer on March 30, 1994. [695-H; 696-A-B]

2. The bar under s.llA of the Act, was available to the appellant when D the first writ petition was filed, since the Amendment Act 68 of 1984 had come into force on September 24, 1984 during the pendency of the writ petition. He did not raise the point. Therefore, the doctrine of "might any ought" engrafted in Explanation IV to s.11 of the CPC would come into play and the appellant is precluded to raise the controversy once over.

Therefore, the doctrine of constructive res judicata puts an embargo on his right to raise the plea of bar of limitation under s.llA. [695-E]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7565-66 of 1995.

From the Judgment and Order dated 31.3.92 and 30.6.94 of the Bombay High Court in W.P. No. 649 of 1984 and W.P. No. 2249/94.

U.R. Lalit and A.M. Khanwilkar for the Appellant.

A.S. Bhasme, Rajiv Masodkar and D.M. Nargolakar for the Respon- G' dents.

The following Order of the Court was delivered :

Delay of 840 days condoned.

H _, Leave granted.

S.G. MULEY v. STATE 695

The appellant is challenging the notification under s.4(1) of the Land A Acquisition Act published on February 3, 1970. Initially, he filed W.P. 649/84 and obtained stay of dispossession of February 16, 1984. That writ petition was dismissed on merits on March 31, 1992. The Land Acquisition officer made the award on March 30, 1994 which was challenged in W.P.

No. 2249 of 1994, but without success. Thus these appeals by special leave B against the original writ petition as well as the second writ petition.

Shri Khanwilkar, learned counsel for the appellant, has stated in fairness that in the first petition he could not canvas the bar of limitation under s.llA of the Act for the reason that the appellant had obtained an order through the court on February 16, 1984 injuncting dispossession of C the land from him; and in view of the judgments rendered by this Court that direction would be an impediment for the authorities to make the award within two years. Therefore, he raised a further contention that since the award has not been made within two years from the date of the decision of the High Court, namely, March 31, 1992, the award passed under s. 11 D is without jurisdiction. We find no force in the contention.

It is seen that the bar under s.llA was available to the appellant when the first writ petition was filed, since the Amendment Act 68 of 1984 had come into force on September 24, 1984 during the pendency of the writ petition. He did not raise the point. Therefore, the doctrine of "might E and ought" engrafted in Explanation IV to s.11 of the CPC would come into play and the appellant is precluded to raise the controversy once over.

Therefore, the doctrine of constructive res judicata puts an embargo on his right to raise the plea of bar of limitation under s.llA.

Further, we have seen the xerox copy of the award, copy of which had been supplied to the appellant. It clearly indicates that the Land Acquisition Officer made the award on March 30, 1994 under his signature and seal. Under s.12(1) of the Act it is conclusive evidence of making of

the award. Because of the mere fact that the appellant had received the G copy of the award on April 12, 1994, it cannot be held that the award was made on that date. There are no interpolations in the signature made by the officer along with the date. It is seen that the over-writing is only in respect of some other matters. Under s.11(2), it is mandatory that the authorities shall obtain prior approval of the competent authority or the State Gove!"nment in case where the value of the land exceeds the value H

A prescribed under the rules made by the appropriate Government. In fact the award clearly indicates that on May 17, 1993 endorsement was made "subject to prior approval". Obviously, the award was made on May 17, 1993 and after obtaining the prior approval, it was signed by the Land Acquisition Officer on March 30, 1994. Therefore, the award was clearly

B made within two years from the date of the judgment of the High Court.

We do not, therefore, find any illegality warranting interference. The appeals are accordingly dismissed. No costs.

R.P.

Appeals dismissed.