Sunday 17 July 2016

Whether appeal filed by acquiring body in land acquisition case is tenable in absence of his written statement in reference court

Shri Maheshwari, the learned counsel appearing for
the claimant, has urged that the appellant – Maharashtra State
Electricity   Board   (now   Maharashtra   State   Power   General
Company Limited) had failed to file written statement to oppose
the   claim   for   enhancement   of   compensation   made   in   the
reference.   He has, therefore, urged that the appellant was not
entitled to file an appeal challenging such enhancement.   The
contention cannot be accepted.  It is for the claimant to establish
the entitlement for the market value of the land.   Even if the
appellant had failed to file written statement opposing the claim
for enhancement, that by itself would not be enough to deny the
appellant   the   right   of   appeal,   which   is   available   in   law,   as
provided under Section  54 of the  Land Acquisition  Act.   The
appellant is entitled to point out to the Court that the claimant
has to stand on his legs, and in the absence of any evidence in

support   of   the   findings   recorded,   the   appellant   is   entitled   to
challenge such findings by filing an appeal.  The appeal cannot be
dismissed   on   that   ground,   and   the   contention   is,   therefore,
rejected.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.518 OF 2003
Maharashtra State Power Generation Co. Ltd.,
(Formerly known as Maharashtra State
Electricity Board),

Versus
Dr. Sheshrao Baliram Ingole,

Coram : R.K. Deshpande, J.
Dated  : 2nd February, 2016
Citation: 2016(3) MHLJ 786



1. In Land Acquisition Reference Case No.28 of 1991, the
Reference Court, acting under Section 18 of the Land Acquisition
Act,   1894   (hereinafter   referred   to   as   “the   said   Act”),   has
enhanced the compensation from Rs.1,75,000/­ to Rs.9,25,650/­
per   hectare,   after   deducting   the   amount   already   paid   to   the
respondent No.1/claimant.  Apart from this, the claimant is also
held entitled to the statutory benefits consequently available in
law.  This first appeal has been preferred by the acquiring body,
challenging the enhancement of compensation.
2. Shri Moharir, the learned counsel appearing for the
appellant­acquiring body, has urged :
(1) that   the   matter   be   remanded   back   to   the
Reference   Court,   as   the   appellant   was   not
permitted to file written statement and was not

joined in the reference as party­respondent;
(2) that the reference should have been dismissed as
barred by limitation; and
(3) that the Reference Court has committed an error
in enhancing the compensation.
3. The points for determination are as under :
(a) Whether the matter is required to be remanded
back   to   the   Reference   Court   to   provide   an
opportunity   to   the   appellant   to   file   written
statement   and   further   to   participate   in   the
proceedings to defend the claim for enhancement
of compensation?;
(b) Whether the reference was liable to be dismissed
as   barred   by   time,   as   provided   under
Section 18(2) of the said Act?;
(c) Whether   the   enhancement   of  compensation   by
the   Reference   Court   from   Rs.1,75,000/­   to
Rs.9,25,650/­   per   hectare   is   supported   by   the
relevant and admissible evidence on record?; and

(d) What should be the order?
As to Point No.(a) :
4. The undisputed factual position is that an application
under   Order   I,   Rule   10   of   the   Code   of   Civil   Procedure   was
preferred   by   the   appellant   for   being   joined   as   the
party­respondent on 25­6­1992, and it was marked as Exhibit 10.
It was opposed by the claimant by filing the reply at Exhibit 13.
In view of the provision of Section 50(2) of the said Act, the
Reference   Court   allowed   the   said   application   by   an   order
dated 19­10­1994.  However, it is an undisputed position that ­
(i)   actual   amendment   was   not   carried   out   by   joining   the
appellant as the party­respondent in the appeal; (ii) the appellant
did   not   file   the   written   statement   on   record;   and   (iii)   the
appellant has extensively cross­examined the witnesses examined
by the claimant.
5. Mere technicalities of failure to join the appellant as
the party­respondent in the reference proceedings cannot defeat

the ends of justice.  The application was allowed for joining the
appellant as the party­respondent in the reference proceedings by
an order dated 19­10­1994.  The appellant was thus well aware
that it is permitted to defend the proceedings and was required to
file the written statement.  The appellant has not chosen to file
the   written   statement,   but   has   chosen   to   participate   in   the
proceedings   by   merely   cross­examining   the   witnesses.     The
appellant has not chosen to lead any evidence – either oral or
documentary.  In these facts and circumstances, it cannot be said
that the order suffers from miscarriage of justice on account of
the  fact that the  amendment for joining the  appellant as the
party­respondent was not carried out till the date on which the
matter was closed for judgment.   The contention is, therefore,
rejected.   
As to Point No.(b) :
6. Since lot of debate, supported by the decisions on the
question of bar of limitation, as provided under sub­section (2) of
Section 18 of the Land Acquisition Act, 1984, has taken place, it

will have to be discussed in detail.
The relevant provisions of the Constitution and of 
the Land Acquisition Act :
7. Article 300A of the Constitution of India states that no
person shall be deprived of his property save by authority of law.
Article 31­A deals with saving of laws providing for acquisition of
estates,   etc.     In   terms   of   sub­clause   (a)   under   clause   (1)   of
Article 31­A, notwithstanding anything contained in Article 13,
no law providing for the acquisition by the State of any estate or
of any rights therein or the extinguishment or modification of any
such right shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights
conferred by Article 14 or 19.   The second proviso therein is
relevant and the same is reproduced below :
“Provided   further   that  where   any   law   makes   any
provision for the acquisition by  the  State  of any estate
and where any land comprised  therein is held by a
person under his personal cultivation, it shall not be
lawful for the State to acquire any portion of such land
as is within the ceiling limit applicable to him under
any law for the time being in force or any building or

structure   standing     thereon   or   appurtenant   thereto,
unless the law relating to the acquisition of such land,
building   or   structure,  provides   for   payment   of
compensation at a rate which shall not be less than the
market value thereof. ” 
(Emphasis supplied)
In terms of the aforesaid proviso, it shall not be lawful for the
State to acquire any land or any portion thereof held by any
person   under   his   personal   cultivation   within   the   prescribed
ceiling limit with or without any building or structure thereon or
appurtenant thereto, unless the law relating to such acquisition
provides for payment of compensation at a rate which shall not
be less than the market value thereof.
Law laid down on the constitutional provisions by
the Apex Court :
8. In the decision of the Constitution Bench of the Apex
Court in the case of Dattatraya Govind Mahajan and others v. The
State   of   Maharashtra   and   another,   reported   in
AIR 1977 SC 915, the question of constitutional validity of the
provisions   of   the   Maharashtra   Agricultural   Lands   (Ceiling   on
Holdings) Act, 1961 was considered on the touchstone of the

proviso to clause (1) of Article 31­A of the Constitution of India
and the validity was upheld.  The Apex Court has held in para 7
that the object and purpose of introducing Articles 31­A of the
Constitution of India was to protect agrarian reform legislation
from   its   invalidation   on   the   ground   of   being   violative   of
Articles 14 and 19 of the Constitution of India.   It is held that
Article   31­A   carves   out   an   exception   to   the   applicability   of
Article 31 and also Articles 14 and 19 and immunizes certain
categories   of   agrarian   reform   legislation   from   attack   on   the
ground that they violate any of these three articles.  Even if any
agrarian reform legislation falling within the specified categories
infringes Articles 14, 19 and 31, it would not be invalid.
9. While dealing with Article 31­A of the Constitution of
India, the Apex Court in para 8 of the aforesaid judgment holds
that the second proviso says that even where a law makes any
provision for acquisition by the State of any estate and thus falls
within one of the categories specified in Article 31­A, it would not
qualify for immunity under the provisions of that Article, if it

seeks to acquire any portion of the land held by a person under
his   personal   cultivation   which   is   within   the   ceiling   limit
applicable to him under any law for the time being in force and
such   a  law,   in   order   to  be   valid,   would  have   to   provide   for
payment of compensation at a rate which shall not be less than
the market value of the land sought to be acquired.   If further
holds that this provision is couched in negative language and it
imposes a fetter on the exercise of the legislative power of the
State, and this limitation is the measure of fundamental right
conferred on the owner of the land.  It holds that the restriction
on legislative competence and conferment of right on the holder
of the land within the ceiling limit are complementary to each
other,   and   they   are   merely   two   different   facets   of   the   same
provision.  
10. The   Apex   Court,   in   the   aforesaid   decision,   clearly
expressed   the   view   that   the   second   proviso   to   clause   (1)   of
Article   31­A   does   confer   a   fundamental   right   to   provide   for
payment of compensation at a rate not less than the market value

of the land thereof.   Shri Justice V.R. Krishna Iyer (as he then
was),   who   wrote   separate   but   concurring   judgment,   also
expressed   the   view   that   the   second   proviso   to   clause   (1)   of
Article 31­A creates a fundamental right.  In the same para of the
aforesaid judgment, the Apex Court also rejected the contention
that   but   for   the   second   proviso   even   if   a   law   authorizing
acquisition of land within the ceiling limit did not provide for
payment   of   compensation,   it   would   be   protected   from
invalidation under Article 31­A.   The Court held that, that was
not the result, which the Parliament favoured.
11. In the decision of the Apex Court in the case of K.P.
Plantation   Private   Limited   and   another  v.  State   of   Karnataka,
decided   by   the   Constitution   Bench   and   reported   in
(2011) 9 SCC 1, the question involved was regarding validity of
Section 110 of the Karnataka Land Reforms Act, 1961, which
empowered the authority to issue the notification withdrawing
the exemption granted from acquisition under Section 107(1)(vi)
of the said Act.  While considering such challenge, the Apex Court

decided   the   question   as   to   whether   the   concept   of   eminent
domain has to be read into Article 300­A of the Constitution of
India  and in  the  Statutes  enacted  to deprive  a person  of his
property.  
12. In   para   164   of   the   aforesaid   decision   of   the   Apex
Court, the Objects and Reasons to introduce Article 300­A of the
Constitution of India by way of the Forty­fourth Amendment, are
reproduced as under :
“3. In view of the special position sought to be given to
fundamental  rights,  the right to property, which  has
been the occasion for more than one amendment of the
Constitution, would cease to be a fundamental right and
become only a legal right.   Necessary amendments for
this purpose are being made to Article 19 and Article 31
is being deleted.  It would, however, be ensured that the
removal of property from the list of fundamental rights
would not affect the right of minorities to establish and
administer educational institutions of their choice.
4. Similarly,   the   right   of   persons   holding   land   for
personal   cultivation   and   within   the   ceiling   limit   to
receive compensation at the market value would not be
affected.
5. Property, while ceasing to be a fundamental right,
would, however, be given express recognition as a legal

right,   provision   being   made   that   no   person   shall   be
deprived of his property save in accordance with law.”
13. In   para   166   of   the   aforesaid   decision   of   the   Apex
Court, it is stated that Article 300­A of the Constitution of India
reveals as under :
“1. Right to acquire, hold  and  dispose  of  property has
ceased to be a fundamental right under the Constitution
of India.
2. Legislature can deprive a person of his property only
by authority of law.
3. Right to acquire, hold and dispose of property is not
a   basic   feature   of   the   Constitution,   but   only   a
constitutional right.
4. Right   to   property,   since   no   more   a   fundamental
right,   the   jurisdiction   of   the   Supreme   Court   under
Article 32 cannot be generally invoked, aggrieved person
has to approach the High Court under Article 226 of the
Constitution.”
14. In the case of eminent domain, two tests are required
to be satisfied, viz. ­ (i) the acquisition is for public purpose, and
(ii) the payment of adequate compensation.   In para 178, the
Apex Court held in the aforesaid decision that the principles of

eminent   domain   as   such,   are   not   seen   incorporated   in
Article 300­A, as we see, in Article 30(1­A), as well as in the
second   proviso   to   Article   31­A(1)   though   we   can   infer   those
principles in Article 300­A.   In para 181, it is held that public
purpose   is,   therefore,   a   condition   precedent   for   invoking
Article 300­A. It holds in para 178 that the second proviso to
Article 31­A(1) prohibits the legislature from making a law which
does not contain a provision for payment of compensation at a
rate not less than the market value which follows that a law
which does not contain such provision shall be invalid and the
acquisition proceedings would be rendered void. 
15. Para 189 of the aforesaid decision is most relevant,
and it is reproduced below :
“189. Requirement   of   public   purpose,   for
deprivation   of   a   person   of   his   property   under
Article 300­A, is a precondition, but no compensation or
nil compensation or its illusiveness has to be justified by
the State on judicially justiciable standards.   Measures
designed to achieve greater social justice, may call for
lesser compensation and such a limitation by itself will
not   make   legislation   invalid   or   unconstitutional   or

confiscatory.     In   other   words,   the   right   to   claim
compensation   or   the   obligation   to   pay,   though   not
expressly included in Article 300­A, it can be inferred in
that article and it is for the State to justify its stand on
justifiable   grounds   which   may   depend   upon   the
legislative policy, object and purpose of the statute and
host of other factors.” 
It is held by the Apex Court that the right to claim compensation
or   the   obligation   to   pay,   though   not   expressly   included   in
Article 300­A, it can be inferred in that article and it is for the
State to justify its stand on justifiable grounds which may depend
upon the legislative policy, object and purpose of the statute and
host of other factors.
16. In para 192, the Apex Court has made a distinction
between the cases of “no” compensation and “nil” compensation.
It has been held that a law seeking to acquire private property for
public purpose cannot say that “no compensation shall be paid”.
However, there could be a law awarding “nil” compensation in
cases   where   the   State   undertakes   to   discharge   the   liabilities
charged on the property under acquisition and onus is on the

Government to establish validity of such law.
17. In   para   221,   the   Apex   Court   has   answered   the
reference, and clause (e) therein being relevant, is reproduced
below :
“221(e) Public   purpose   is   a   precondition   for
deprivation   of   a   person   from   his   property   under
Article 300­A and the right to claim compensation is
also   inbuilt   in   that   article   and   when   a   person   is
deprived of his property the State has to justify both
the   grounds   which   may   depend   on   scheme   of   the
statute, legislative policy, object and purpose of the
legislature and other related factors.”
18. In   the   decision   in   the   case   of  Laxman   Lal   (Dead)
Through   LRs.   and   another  v.  State   of   Rajasthan   and   others,
reported in (2013) 3 SCC 764, the Apex Court has explained the
doctrine of eminent domain to mean that it is the right or power
of a sovereign State to appropriate the private property within
the territorial sovereignty to public uses or purposes, which is
inherent in the Government.  Article 300­A of the Constitution of
India states that no person shall be deprived of his property save

by authority of law.  The Apex Court has held in para 16 of the
said decision that though the right to property is no longer a
fundamental   right   but   the   constitutional   protection   continues
inasmuch as without the authority of law, a person cannot be
deprived of his property.  If the State intends to appropriate the
private property without the owners' consent by acting under the
statutory   provisions   for  compulsory   acquisition,  the  procedure
authorized   by   law   has   to   be   mandatorily   and   compulsorily
followed.
19. The law laid down by the Apex Court in the aforesaid
judgments can be summarized as under :
(1)  Right   to   acquire,   hold   and   dispose   of   the
property has ceased to be a fundamental right under
the Constitution of India, but it continues to be a legal
or a constitutional right, namely that no person can be
deprived of his property save and except by and in
accordance   with   law,   which   can   be   enforced   by
invoking   jurisdiction   under   Article   226   of   the
Constitution of India and not under Article 32.

(2) Article   300­A   as   well   as   Article   31­A   with
second proviso in the Constitution of India contain a
power of eminent domain to appropriate the private
property,   which   should   satisfy   two   tests   ­   (i)   the
acquisition is for public purpose, and (ii) the payment
of adequate compensation, which should not be less
than the market value of the land.
(3) The   second   proviso   below   clause   (1)   of
Article 31­A of the Constitution of India confers an
independent fundamental right to get the payment of
compensation at a rate not less than the market value
of   the   land   thereof,   and   if   the   law   authorizing
acquisition   of   the   land   does   not   make   any   such
provision, then it would not qualify for protection or
immunity under Article  31­A of the  Constitution  of
India and it can be declared as void.
(4) There is a distinction between the cases of “no”
compensation   and   “nil”   compensation.   The   law
seeking   to   acquire   the   private   property   for   public
purpose   cannot   say   that   no   compensation   shall   be
paid.   However, there could be a law awarding nil
compensation in cases where the State undertakes to

discharge the liabilities charge on the property under
acquisition.
(5) It is the constitutional obligation upon the State
to see that a person gets compensation at a rate not
less than the market value of the land acquired, and if
it wanted to defend the enforcement of fundamental
right under the second proviso below clause (1) of
Article 31­A of the Constitution of India, it is for the
State to justify its stand on justifiable grounds.  Thus,
the burden of proof lies upon the State.
20. The Land Acquisition Act, 1894 is a piece of legislation
enacted to exercise the power of eminent domain to compulsorily
acquire the land by extinguishing the rights therein of the persons
or the owners.   Section 4 deals with publication of preliminary
notification and inviting objections, the consideration of which is
done under Section 5­A of the said Act by granting hearing on the
objections, if any, raised and the ultimate declaration that the
land is required for public purpose is done by issuing declaration
in the notification, as required by Section 6 of the said Act.  

21. Section 11 deals with the enquiry and passing of the
award by the Collector and it contemplates that while making the
award, the Collector needs to determine ­ (i) the true area of the
land,   (ii)   the   compensation   which   in   his   opinion   should   be
allowed for the land, and (iii) the apportionment of the  said
compensation among all the persons known or believed to be
interested   in   the   land,   of   whom,   or   of   whose   claim,   he   has
information,   whether   or   not   they   have   respectively   appeared
before him.
22. Section   12   of   the   said   Act   is   relevant   and   it   is
reproduced below :
“12. Award   of   Collector   when   to   be   final.­­(1)
Such award shall be filed in the Collector's office and
shall,   except   as   hereinafter   provided,   be   final   and
conclusive  evidence,  as  between  the  Collector and the
persons   interested,   whether   they   have   respectively
appeared before the Collector or not, of the true area
and value of the land, and the apportionment of the
compensation among the persons interested.
(2) The Collector shall give immediate notice of his

award   to   such   of   the   persons   interested   as   are   not
present personally or by their representatives when the
award is made.”
The   provision   states   that   the   award   shall   be   filed   in   the
Collector's office and shall, except as provided in the Act, be final
and   conclusive   evidence,   as   between   the   Collector   and   the
persons   interested,   whether   they   have   respectively   appeared
before the Collector or not, of the true area and value of the land,
and the apportionment of the compensation among the persons
interested.  Sub­section   (2)   of   Section   12   mandates   that   the
Collector shall give immediate notice of his award to such of the
persons   interested   as   are   not   present   personally   or   by   their
representatives when the award is made.  
23. Section 18 of the Land Acquisition Act gives a right to
the owner or person interested, who has not accepted the award
may, by written  application  to the  Collector, require  that  the
matter be referred by the Collector for the determination of the
Court, whether his objection be to the measurement of the land,

the   amount   of   the   compensation,   the   persons   to   whom   it   is
payable, or the apportionment of the compensation among the
persons interested.  Section 18 of the Land Acquisition Act being
relevant is reproduced below :
“18. Reference to Court.­­(1) Any person interested
who   has   not   accepted   the   award   may,   by   written
application to the Collector, require that the matter be
referred by the Collector for the determination of the
Court, whether his objection be to the measurement of
the land, the amount of the compensation, the persons
to whom it is payable, or the apportionment of the
compensation among the persons interested.
(2) The application shall state the grounds on which
objection to the award is taken:
(3)
Provided   that   every   such   application   shall   be
made,­­
(a) if   the   person   making   it   was   present   or
represented before the Collector at the time when he
made his award, within six weeks from the date of the
Collector's award;
(b) in   other   cases,   within   six   weeks   of   the
receipt of the notice from the Collector under section
12, sub­section (2), or within six months from the date
of the Collector's award, whichever period shall first
expire.”

It   would   thus   be   clear   that   the   person   interested,   who   has
received the compensation under protest, is required to state in
his application for reference the grounds on which he objects to
the   compensation   awarded   by   the   Collector   within   six   weeks
from   the   date   of   the   award   when   either   he   was   present   or
represented by a counsel or an agent, or within six weeks from
the date of receipt of the notice from the Collector sent under
Section 12, sub­section (2) or within six months from the date of
the award made by the Collector, whichever period shall first
expire.
24. Section 23 of the Land Acquisition Act deals with the
matters   to   be   considered   in   determining   compensation,   and
sub­section (1) therein states that in determining the amount of
compensation to be awarded for the land acquired under this Act,
the Collector  shall  take  into  consideration  –  first,  the  market
value of the land at the date of the publication of the notification
under Section 4, sub­section (1).   The said provision also deals

with the other aspects of the matter, which are not relevant for
the purposes of the present case.
25. Sections   4,   6,   11,   12,   18   and   23   of   the   Land
Acquisition Act have been enacted to discharge the constitutional
obligation of the State under Article 300­A of the Constitution of
India to provide for payment of the compensation for acquisition
of land, which shall not be less than the market value of the land
and to effectuate the fundamental right conferred by the second
proviso below Article 31­A of the Constitution of India to get the
market value of the land in the mode and manner prescribed
under the provisions of the Land Acquisition Act.  If the Collector
wanted   to   urge   that   ­   (i)   the   procedure   prescribed   under
Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act has
been mandatorily and compulsorily followed, and (ii) the person
is   not   entitled   to   seek   enforcement   of   the   constitutional
obligation   under   Article   300­A   or   the   fundamental   right
conferred by the second proviso below Article 31­A, the burden
of   proof   shall   be   upon   the   Collector   to   justify   its   stand   by

necessary pleading and proof.   
Law laid down by the Apex Court on the question
of bar of limitation under  the provisions of the
Land Acquisition Act :
26. In the backdrop of the aforesaid provisions of the law
and   the   decisions   of   the   Apex   Court,   the   question   of   bar   of
limitation, as prescribed in clauses (a) and (b) of the proviso
below sub­section (2) of Section 18 of the Land Acquisition Act,
will have to be considered.   The decisions of the Apex Court
construing the expression “from the date of the Collector's award”
need to be seen.
27. In the decision of the Apex Court in the case of Raja
Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer
and Anr., reported in AIR 1961 SC 1500, the award was passed
under Section 11 of the Land Acquisition Act on 25­3­1951.  No
notice of this award was given to the appellant, as required by
Section   12(2)   of   the   said   Act   and   it   was   only   on   or   about
13­1­1953 that he received information about the making of the

said award, the appellant filed an application under Section 18 of
the said Act for determination of market value of the land on
24­2­1953.  The case of the appellant before the Apex Court fell
under the later part of clause (b) of the proviso, as is clear from
para 4 of the judgment.   The Land Acquisition Officer took the
view that the application was barred by time under the proviso to
Section 18 of the said Act and he rejected it.  In a writ petition,
the   learned   Single   Judge   set   aside   this   order   and   directed
consideration of the application on its own merits in accordance
with law.  In appeal before the Division Bench, the decision of the
learned Single Judge was set aside and the application under
Section 18 of the said Act was dismissed as barred by time.  This
was the subject­matter of challenge before the Apex Court and
the   appeal   was   allowed   by   setting   aside   the   decision   of   the
Division Bench and restoring the decision of the learned Single
Judge.   The   question   was   whether   the   application   filed   under
Section 18 of the said Act was in time or not.
28. In the aforesaid decision, the Apex Court considered the

question as to what is the meaning of the expression “the date of
the Collector's award” used in clauses (a) and (b) in the proviso
below sub­section (2) of Section 18 of the Land Acquisition Act.
The Apex Court considered the provisions of Sections 11, 12(2)
and 18 of the said Act.  In the cases falling under clause (a) of
the proviso, it is held that if the award is pronounced in the
presence of the parties whose rights are affected by it, it can be
said   to   be   made   when   pronounced.   If   the   date   for
pronouncement of the award is communicated to the party and
it is accordingly pronounced on the date previously announced,
the said award is said to be communicated to the said party,
even if the said party is not actually present on the date of its
pronouncement.   In the cases falling under clause (b) of the
proviso,   it   is   held   that   if   without   notice   of   the   date   of   its
pronouncement   the   award   is   pronounced   and   a  party   is   not
present,   the   award   can   be   said   to   be   made   when   it   is
communicated to the party later.   The knowledge of the party
affected   by   the   award,   either   actual   or   constructive,   being   an
essential   requirement   of   fair   play   and   natural   justice,   the

expression “date of the award” used in the proviso must mean the
date when the award is either communicated to the party or is
known by him either actually or constructively.   The Apex Court
has opined that it would be unreasonable to construe the words
“from the date of the Collector's award” used in the proviso to
Section 18 in a literal or mechanical way.
29. The   view   taken   by   the   Apex   Court   in   the   aforesaid
decision   in   the   cases   covered   by   clause   (b)   is   supported   by
reasons.  The Apex Court considered that the award made by the
Collector is in law no more than an offer made on behalf of the
Government to the owner of the property, then the making of
the   award   as   properly   understood   must   involve   the
communication of the offer to the party concerned, that is the
normal requirement under the Contract Law, and its applicability
to the cases of award made under the Act cannot be reasonably
excluded.   The Apex Court holds that the date of the award
cannot be determined solely by reference to the time when the
award is signed by the Collector or delivered by him in his office;

it must involve the consideration of the question as to when it
was   known   to   the   party   concerned   either   actually   or
constructively.   The   Apex   Court   held   that   the   Legislature
recognized that making of the award under Section 11 followed
by   its   filing   under   Section   12(1)   would   not   meet   the
requirements of justice before bringing the award into force.  It
thought   that   the   communication   of   the   award   to   the   party
concerned   was   also   necessary   and   the   obligation   upon   the
Collector   tends   to   show   that   the   literal   and   mechanical
construction of the said clause would be wholly inappropriate
and failure of the Collector to discharge his obligation under
Section 12(2) produce curious result of making ineffective, the
right of the party to make an application under Section 18, and
this   result   could   not   possibly   have   been   intended   by   the
Legislature.
30. A three Judges' Bench of the Apex Court in the case of
State of Punjab v. Mst Qaisar Jehan Begum and another, reported
in AIR 1963 SC 1604, it was a case where the Collector made an

award on 25­10­1953, the amount of compensation was paid on
22­7­1955,   and   on   30­9­1955,   the   respondents   made   an
application to the Collector for reference under Section 18 of the
Land Acquisition Act, alleging that they knew about the award on
22­7­1955 when they received the compensation amount.   The
Civil   Court   to   which   the   reference   was   made,   came   to   the
conclusion that the reference was barred by time by expressing a
doubt as to whether the respondents were entitled to count the
period of limitation from the date of knowledge, but even if it is
assumed to be so, the date of knowledge must be taken to be
24­12­1954,   when   the   respondents   made   an   application   for
interim payment and, therefore, the reference sought was barred
by time.  The High Court allowed the revision application and set
aside the order of the Civil Court and directed dealing of the
reference   on   its  own   merits.     This   was   the   subject­matter   of
challenge before the Apex Court.
31. A   three   Judges'   Bench   of   the   Apex   Court   in   the
aforesaid judgment considered the provisions of Section 12 of the

Land Acquisition Act and the decision in Raja Harish Chandra Raj
Singh's case, cited supra, earlier decided by it.  On interpretation
of clause (a) in the proviso under Section 18, it is held that when
a party is present in a Court either personally or through his
representative when the award is made by the Collector, it must
be presumed that he knows the contents of the award.  The Apex
Court recorded the finding in respect of clause (b) of the proviso
that   admittedly   the   award   was  never   communicated  to   the
respondents.  While dealing with the contention that the date of
knowledge   must  be   taken   to  be   24­12­1954,  the  Apex   Court
observed that the knowledge of the award does not mean a mere
knowledge   of   the   fact   that   an   award   has   been   made.     The
knowledge must relate to the essential contents of the award which
must be made known either actually or constructively.  If the award
is communicated to a party under Section 12(2) of the Act, the
party must be obviously fixed with knowledge of the contents of
award whether he reads it or not.  The Court held that the date
of knowledge in the said case should be taken as 22­7­1955 when
the   amount   of   compensation   was   paid   and,   therefore,   the

application for reference made on 30­9­1955 was clearly within a
period of six months from the date of that award and it was not
barred   by   time   within   the   meaning   of   the   second   part   of
clause (b) of the proviso to Section 18 of the said Act.
32. In the decision of the Apex Court delivered by a Bench
of   two   Judges  in  the   case   of  State  of  Punjab   and  another  v.
Satinder Bir Singh, reported in (1995) 3 SCC 330, it was a case
where the Collector made his award under Section 11 of the
Land Acquisition Act on 1­8­1970.   He issued the notice under
Section   12(2)   of   the   said   Act,   which   was   received   by   the
respondent on 22­9­1970.  The compensation was received under
protest   on   29­9­1970   and   thereafter   an   application   under
Section   18   of   the   said   Act   was   made   on   21­1­1971   seeking
reference to  the  Civil  Court.   The  Collector  rejected  the   said
application as barred by limitation.  The High Court in revision
set aside the decision of the Collector, holding that the notice did
not contain all the details as to how the market value of the land
was evaluated; the respondent was not in a position to know the

determination of the compensation for making an application for
reference under Section 18 and the Court held that it was not a
proper notice and the limitation prescribed under Section 18(2)
of the said Act was not applicable.  The Apex Court set aside the
decision of the High Court and rejected the application under
Section 18 of the said Act as barred by limitation.
33. In para 8 of the aforesaid decision, the Apex Court has
held that from a conjoint reading of Sections 11 and 12 of the
Land Acquisition Act, it is clear that notice is only an intimation
of making of the award requiring the owner or person interested
to receive compensation awarded under Section 11 of the said
Act.  It holds that it is not necessary that a notice should contain all
the details of the award including his consideration and its manner
of determination of the compensation, as opined by the learned
Judge of the High Court.  It is held that the statutory operation of
limitation mentioned by Section 18(2) of the said Act does not
depend on the ministerial act of communication of notice in any
particular form when the Act or Rules has not prescribed any form.

It holds that the limitation begins to operate from the moment
the notice under Section 12(2) is received or as envisaged by
Section   18(2).     The   said   decision   has   been   followed   by   the
another Bench of two Judges of the Apex Court in the case of
Poshetty   &   Ors.  v.  State   of   Andhra   Pradesh,   reported   in
1996(4) CCC 15 (SC).
34. The Division Benches of this Court in the cases of Smt.
Laxmibai Narayan Patil & Anr.  v.  State of Maharashtra & Anr.,
reported in  1998(1) CCC 104 (Bom.), and  Sadashiorao Balaji
Satone   and   others  v.  The   State   of   Maharashtra   and   others,
reported in 2004 AIHC 989, relying upon the decision of the Apex
Court in Satinder Bir Singh's case, cited supra, have held that the
period for obtaining the certified copy of the award is not liable
to be excluded and the limitation prescribed under Section 18(2)
of the Land Acquisition Act starts running from the date when
the   notice   disclosing   the   true   area   of   the   land   and   the
compensation awarded was received by the claimant.

35. A Bench consisting of two Judges of the Apex Court
again   considered   the   question   in   its   decision   in   the   case   of
Bhagwan   Das   &   Ors.  v.  State   of   U.P.   and   Ors.,   reported   in
AIR 2010 SC 1532.  It was a case where an award was made by
the Land Acquisition Collector on 14­3­2007 and the appellants
were served with the notice on 25­10­2007 to appear before the
Collector   and   receive   the   amount   of   compensation.     The
appellants learnt that the award was made on 14­3­2007 and
immediately, therefore, moved an application seeking reference
under Section 18 of the Land Acquisition Act on 16­11­2007.
The   Collector   rejected   the   application   as   barred   by   time,   as
prescribed under Section 18(2) of the said Act.  A writ petition
preferred was dismissed on 17­1­2008, and this is how the matter
was before the Apex Court.  The Apex Court allowed the appeal,
set aside the decisions and directed consideration of the matter
on merits.
36. The   Apex   Court   considered   the   two   important
questions – (i) whether the Collector can condone the delay in

filing   an   application   seeking   reference   if   sufficient   cause   is
shown,   and   (ii)   whether   the   period   of   six   months   under
clause (b) of the proviso to Section 18 of the Land Acquisition
Act should be reckoned from the date of knowledge of the award
of the Collector or from the date of the award itself.  The Court
held that Section 5 of the Limitation Act cannot be invoked for
extension of the period of limitation prescribed under the proviso
to Section 18(2) of the Land Acquisition Act and the Collector
cannot entertain any application for extension nor extend the bar
for seeking the reference, even if there are genuine and bona fide
grounds for condoning the delay.  Relying upon the two decisions
of the Apex Court in the cases of Raja Harish Chandra Raj Singh
and Mst. Qaisar Jehan Begum, cited supra, decided in the years
1961 and 1963 respectively, the Apex Court reiterated the view
that   the   words   “date   of   the   Collector's   award”   occurring   in
proviso (b) to Section 18 of the Land Acquisition Act require to
be read as referring to the date of knowledge of the essential
contents of the award and not the actual date of the Collector's
award.

37. In para 11 of the aforesaid decision in the case of
Bhagwan Das, the Apex Court has considered the consequences of
literal and mechanical construction of the expression “from the
date  of  the  Collector's  award” employed in   clause  (b)  in  the
proviso below sub­section (2) of Section 18 of the said Act, and it
is as under :
“11. When a land is acquired and an award is made
under   section   11   of   the   Act,   the   Collector   becomes
entitled to take possession of the acquired land.   The
award being only an offer on behalf of the Government,
there is always a tendency on the part of the Collector to
be conservative in making the award, which results in
less than the market value being offered.  Invariably the
land loser  is  required  to make an  application  under
section   18   of   the   Act   to   get   the   market   value   as
compensation.   The land loser does not get a right to
seek   reference   to   the   civil   court   unless   the   award   is
made.   This means that he can make an application
seeking reference only when he knows that an award
has been made.  If the words six months from the date
'date   of   the   Collector's   award'   should   be   literally
interpreted as referring to the date of the award and not
the   date   of   knowledge   of   the   award,   it   will   lead   to
unjust and     absurd     results.    For example,   the
Collector                               
may choose to make an award but not to issue any
notice  under  section  12(2)  of the  Act,  either   due to
negligence or oversight or due to any ulterior reasons.
Or he may send a notice but may not bother to ensure

that it is served on the land­owner as required under
section 45 of the Act.  If the words 'date of the Collector's
award' are literally interpreted, the effect would be that
on the expiry of six months from the date of award, even
though the claimant had no notice of the award, he
would lose the right to seek a reference.  That will lead
to arbitrary and unreasonable discrimination between
those who are notified of the award and those who are
not notified of the award.  Unless the procedure under
the Act is fair, reasonable and non­discriminatory, it
will run the risk of being branded as being violative of
Article 14 as also Article 300­A of the Constitution of
India.   To avoid such consequences, the words 'date of
the   Collector's   award'   occurring   in   proviso   (b)   to
section 18 requires to be regard as referring to the date
of knowledge of the essential contents of the award, and
not the actual date of the Collector's award.”
(Emphasis supplied)
The Apex Court considered that the award is only an offer on
behalf of the Government, and there is always a tendency on the
part of the Collector to be conservative in making the award,
which results in less than the market value being offered, and
invariably   the   land   loser   has   to   make   a   reference   under
Section   18   of   the   Land   Acquisition   Act   for   enhancement   of
compensation.  The right to seek a reference to the Civil Court
does not accrue unless the award is made.  The Court has held

that if the words “date  of the Collector's award” are literally
interpreted, the effect would be that on expiry of six months
from the date of the award, even though the claimant had no
notice of the award, he would lose the right to seek a reference,
and this will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are
not notified of the award.   It is further held that unless the
procedure   under   the   Act   is   fair,   reasonable   and   nondiscriminatory,
it will run the risk of being branded as being
violative of Article 14 as also Article 300­A of the Constitution of
India.
38. In the aforesaid decision in in the case of  Bhagwan
Das, the Apex Court also considered the question of burden of
proof.  It is held in para 13 as under :
“13. When   a   person   interested   makes   an
application   for   reference   seeking   the   benefit   of   six
months' period from the date of knowledge, the initial
onus is on him to prove that he (or his representative)

was not present when the award was made, that he did
not receive any notice under Section 12(2) of the Act,
and that he did not have the knowledge of the contents
of the award during a period of six months prior to
filing   the   application   for   reference.     This   onus   is
discharged by asserting these facts on oath.  He is not
expected to prove the negative.  Once the initial onus is
discharged by the claimant/person interested, it is for
the   Land   Acquisition   Collector   to   establish   that   the
person   interested   was   present   either   in   person   or
through his representative when the award was made,
or that he had received a notice under Section 12(2) of
the Act, or that he had knowledge of the contents of the
award.     Actual   or   constructive   knowledge   of   the
contents   of   the   award   can   be   established   by   the
Collector   by   proving   that   the   person   interested   had
received  or drawn  the  compensation  amount  for  the
acquired   land,   or   had   attested   the
Mahazar/Panchanama/proceedings   delivering
possession   of   the   acquired   land   in   pursuance   of   the
acquisition, or had filed a case challenging the award or
had  acknowledged   the   making   of   the   award   in   any
document or in statement on oath or evidence.   The
person   interested,   not   being   in   possession   of   the
acquired   land   and   the   name   of   the   State   or   its
transferee   being   entered   in   the   revenue   municipal
records coupled with delay, can also lead to an inference
of constructive knowledge.  In the absence of any such
evidence   by   the   Collector,   the   claim   of   the   person
interested that he did not have knowledge earlier will be
accepted, unless there are compelling circumstances to
not to do so.”
Thus, the initial onus is on the person making reference seeking

the benefit of six months' period from the date of knowledge to
prove that he or his representative was not present when the
award   was   made,   that   he   did   not   receive   any   notice   under
Section 12(2) of the Land Acquisition Act, and that he did not
have the knowledge of the contents of the award during the
period   of   six   months   prior   to   filing   of   the   application   for
reference.   It is held that the onus is discharged by asserting
these facts on oath and it is not expected to prove negative.  The
Court further holds that once the initial onus is discharged by the
claimant/person   interested,   it   is   for   the   Land   Acquisition
Collector   to   establish   that   the   person   interested   was   present
either in person or through his representative when the award
was made, or that he had received a notice under Section 12(2)
of the said Act, or that he had knowledge of the contents of the
award.  If further holds that actual or constructive knowledge of
the contents of the award can be established by the Collector by
proving that the person interested had received or drawn the
compensation amount for the acquired land, or had attested the
Mahazar/Panchanama/proceedings delivering possession of the

acquired land in pursuance of the acquisition, or had filed a case
challenging the award, or had acknowledged the making of the
award in any document or any statement on oath or evidence.
The  Court  held that  in  the  absence  of such evidence  by the
Collector, the claim of the person interested that he did not have
knowledge earlier will be accepted, unless there are compelling
circumstances to not to do so.
39. In the decision of a three Judges' Bench of the Apex
Court in the case of  Premji Nathu  v.  State of Gujarat and Anr.,
reported in AIR 2012 SC 1624, it was a case where the Collector
issued the notice to the appellant under Section 12(2) of the
Land Acquisition Act, which was received by him on 22­2­1985.
Similar   notices   were   received   by   the   other   land   owners   on
22­2­1985 and 23­2­1985.   As the copy of the award was not
annexed with  the  notice, the  appellant obtained  the  certified
copy   thereof   through   his   Advocate   and   then   submitted   an
application dated 8­4­1085 to the Collector for making reference
to the Court for enhancement of compensation with solatium

and interest. The Reference Court did not frame any issue of
limitation, but concluded that the land owners were interested to
enhancement of compensation.  However, the application under
Section  18(2)(b) of the said Act was dismissed as barred by
limitation.  The Apex Court allowed the appeal, holding that the
claimants were entitled to enhancement of compensation, as was
held by the Reference Court along with all statutory benefits.  
40. The Apex Court in para 15 of the aforesaid decision,
considered the question as to whether the service of notice under
Section 12(2) of the said Act was sufficient to start counting the
period of limitation and held that the copy of the award was not
served upon the appellant along with the notice and without
that,   the   appellant   could   not   have   effectively   made   an
application for seeking reference.  It was held that on behalf of
the   State   Government, no evidence  was produced  before  the
Reference Court to show that copy of the award was sent to the
appellant   along   with   the   notice,   and   this   aspect   was   totally
ignored by the Reference Court, which mechanical concluded

that   the   application   was   barred   by   time,   as   specified   in
Section   18(2)(b)   of   the   said   Act,   and   the   High   Court   also
committed a serious error in approving such a view.
41. In the recent decision of a three Judges' Bench of the
Apex   Court   in   the   case   of  Madan   and   another  v.  State   of
Maharashtra, reported in (2014) 2 SCC 720, it was a case where
the award was passed on 16­8­1985, and in the reference under
Section 30 of the Land Acquisition Act disposed of on 4­9­1991,
it was held that the appellants are entitled to compensation in
respect of 20 acres of acquired land and the remaining parties
for compensation in respect of remainder of the acquired land.
The   claimants   received   the   compensation   on   5­9­1991,   and
within a period of six weeks therefrom, the reference was sought
under   Section   18   of   the   said   Act   for   enhancement   of
compensation. The Reference Court enhanced the compensation,
and in an appeal filed before the High Court, it was held that the
reference was barred by limitation.   This is how the case was
before   the   Apex   Court.     It   was   held   that   for   the   first   time

on 4­9­1991 (date of the order under Section 30 of the Act) that
the   appellants   came   to   know   that   they   were   entitled   to
compensation and the quantum thereof.   The reference made
under   Section   18   was   within   a   period   of   six   weeks   from
4­9­1991, and the High Court committed an error in holding that
the reference was barred by limitation.  
42. In para 11 of the aforesaid decision, the Apex Court
has held that one of the options open to the Collector is to make
a reference to the question of apportionment of compensation to
the Court under Section 30 of the said Act, and the other is to
relegate the parties to the remedy of the suit.  It is held that in
either situation, the right to receive the compensation under the
award would crystallize after apportionment is made in favour of
the   claimant.     It   is   only   thereafter   that   the   reference   under
Section 18 of the said Act for enhanced compensation can be
legitimately sought by the claimant, in whose favour the order of
apportionment is passed either by the Court in reference under
Section 30 of the said Act, or in the civil suit, as the case may be.

Summary of the law laid down by the Apex Court :
43. Keeping in view the law laid down by the Apex Court
in the decisions in the cases of (a) Raja Harish Chandra, (b) Mst.
Qaisar Jehan Begum, (c)  Bhagwan Das, (d)  Premji Nathu, and
(e)  Madan   and   another,  cited   supra,   the   following   principles
emerge ­
(i) In   the   cases   falling   under   clause   (a)   of   the
proviso below sub­section (2) of Section 18 of the
Land   Acquisition   Act,   if   the   person   making   the
reference (“the claimant”) was present or represented
before the Collector at the time when the award is
made,   it   can   be   said   to   be   made   when   it   is   so
pronounced   and   the   period   of   limitation   starts
running from that date, and after expiry of the period
of six weeks from such date, the reference has to be
dismissed as barred by the law of limitation.
(ii) If   the   date   for   pronouncement   of   the
award   is   communicated   to   the   claimant   and   it   is

accordingly   pronounced   on   the   date   so   previously
announced,   the   said   award   is   said   to   be
communicated to the claimant concerned even if he is
not actually present on the date of its pronouncement
and the period of limitation shall lapse after six weeks
from the date of such pronouncement.
(iii) In the cases falling in first part of clause (b) in
the proviso below sub­section (2) of Section 18 of the
said Act,  what  is relevant to be  established   is the
receipt of notice from the Collector under Section 12,
sub­section (2) of the Land Acquisition Act, and the
period of six weeks prescribed therein starts running
from   the   date   of   either   actual   or   constructive
knowledge of essential contents of the award and it is
not a mere knowledge of the fact that the award has
been made is sufficient, to hold that the period of
limitation starts running from such date without there
being any communication, bringing to the notice of
the   party   concerned,   the   essential   contents   of   the
award, either actual or constructive.
(iv)   In the cases falling in second part of clause (b)
in the proviso below sub­section (2) of Section 18 of
the   Land   Acquisition   Act,   the   same   principles

laid down in respect of first part of clause (b) therein,
would apply for starting the period of limitation, but
in   such   a   case,   the   limitation   would   expire   after
expiry of six months from the date of the Collector's
award.
(v) In all the cases, the dispute shall pertain only
to the starting and running date or dates, as the case
may be, to count the period of limitation.  In none of
the cases, the Courts are empowered or competent to
condone the delay caused in seeking reference after
expiry   of   the   period   of   limitation   so   prescribed.
44. No doubt, the two decisions of the Apex Court in the
cases   of  Satinder   Bir   Singh  and  Poshetty   &   Ors.,   which   are
followed by the Division Benches of this Court in the cases of
Smt. Laxmibai Narayan Patil and Sadashiorao Balaji Satone, deal
with the controversy of limitation, as contemplated by clause (b)
of   the   proviso   to   sub­section   (2)   of   Section   18   of   the   Land
Acquisition Act.  The ratio of the decision of the Apex Court in
Satinder Bir Singh's case is that it is not necessary that a notice
under   sub­section   (2)   of   Section   12   of   the   said   Act   should

contain all the details of the award including his consideration
and its manner of determination of the compensation, and that
the statutory operation  of limitation  does not depend on the
ministerial act of communication of notice in any particular form
when the Act or Rules has not prescribed any form.
45. The ratio of the decision in aforesaid two cases, which
is followed in other cases, is directly in conflict with the ratio of
the  decisions   of  the  Apex Court in  the  cases of  Raja Harish
Chandra   Raj   Singh,  Mst.   Qaisar   Jehan   Begum,  Bhagwan   Das,
Premji Nathu, and Madan and others.  The decisions of the Apex
Court in the cases of Satinder Bir Singh, and Poshetty and others
are rendered by the two Judges, whereas, the decision of the
Apex Court in the  cases of  Mst. Qaisar  Jehan Begum,  Premji
Nathu, and Madan are delivered by the three Judges.  The law
laid down by the larger Benches is, therefore, binding.  The Apex
Court in its decision in the case of Mst. Qaisar Jehan Begum has
enhanced the ratio of the earlier Division Bench decision in the
case of  Raja Harish Chandra Raj Singh, and it is held that the

limitation shall start running from the date of either actual or
constructive knowledge of the essential contents of the award
and it is not a mere knowledge of the fact that the award has
been made, that is sufficient, to hold that the period of limitation
starts running from such date.
The questions of law for determination :
46. It is not the case of any of the parties that either the
Collector or the Court exercising jurisdiction under Section 18 of
the Land Acquisition Act to determine the market value of the
land, has power to condone the delay caused in filing reference
beyond the period stipulated in clauses (a) and (b) of the proviso
below sub­section (2) therein.   In fact, the point is no longer
res integra in view of the decision of the Apex Court in the case
of  Bhagwan   Das,   cited   supra,   wherein   it   has   been   held   that
Section 5 of the Limitation Act cannot be invoked for extension
of   the   period   of   limitation   prescribed   under   the   proviso   to
Section 18(2) of the said Act and the Collector cannot entertain
any application for extension nor extend the bar for seeking the

reference, even if there are genuine or bona fide grounds for
condoning the delay.   While considering the bar of limitation
under   Section   18   of   the   said   Act,   it   is   not   the   question   of
condonation of delay, which is required to be considered, but it
is the question of starting point of limitation, which is required
to   be   considered.     Hence,   the   following   two   questions   are
required to be considered ­ 
(i)  what should be the starting point of limitation,
as prescribed in clauses (a) and (b) of the proviso
below sub­section (2) of Section 18 of the Land
Acquisition Act?, and
(ii)     upon   whom   the   burden   of   proof   lies   to
establish   that   the   reference   preferred   under
Section 18 of the said Act is barred by the law of
limitation?
As to Question No.(i) :
47. The   Court,   acting   under   Section   18   of   the   Land
Acquisition  Act,  has to determine  the  objections  as regards ­

(i) the true area of the land, (ii) the compensation, which, in his
opinion,   should   be   allowed   for   the   land,   and   (iii)   the
apportionment   of   compensation   amongst   all   the   persons   to
whom  it   is payable   or   the  persons  known   or   believed  to  be
interested in the land.  Such an award passed under Section 11
of   the   said   Act   is   merely   an   offer   for   compensation   by   the
Collector.   The offer has to be communicated to the persons
having a right to receive compensation.   A statutory right to
approach the Court for determination of the market value of the
land, provided under Section 18 of the said Act, accrues only
upon communication of the essential contents of the award.  The
limitation prescribed under Section 18 of the said Act, therefore,
starts running from the date of actual or constructive knowledge
of the essential contents of the award.  
48. Section 18 of the said Act provides an opportunity to
raise grounds on which the objection to the award is taken and it
confers a power upon the Court, rather than the Collector, to
determine the market value of the land under acquisition.  This

opportunity to raise objection is not an empty formality, but it is
for effectively exercising the fundamental right under the second
proviso below clause (1) of Article 31­A of the Constitution of
India for determination by the Court of the true market value of
the land under acquisition.  Such a fundamental right cannot be
effectively exercised without knowing actually or constructively
the essential contents of the award, i.e. the mode, manner and
the   basis   of   determination   of   the   offer   received   from   the
Collector.  In the absence of such knowledge, no protest can be
raised, as contemplated by sub­section (1) of Section 18 of the
said Act, and there is no jurisdiction with the Collector or the
Court, acting under Section 18, to permit the amendment of the
Reference   to   raise   additional   grounds   or   additional
compensation after getting knowledge of the essential contents
of the award.   
49. The very object of sub­section (2) of Section 12 of the
said Act to give notice of award only to such persons interested
as were not present personally or by their representatives when

the   award   was   made,   is   to   enable   them   to   raise   effective
objections to such award to have a market value of their land
under acquisition. Otherwise, it would produce curious result of
making ineffective this right, and such result could not possibly
have been intended by the Legislature, as observed by the Apex
Court in Raja Harish Chandra Raj Singh's case, cited supra.
50. Applying the aforesaid principles of law laid down by
the   Apex   Court,   it   will   have   to   be   decided   in   the   facts   and
circumstances of each case the date from which the period of
limitation prescribed under clauses (a) and (b) of the proviso
below sub­section (2) of Section 18 of the Land Acquisition Act
shall start running.  The question No.(i) is, therefore, answered
accordingly.
As to Question No.(ii) :
51. Coming   to   the   second   question   of   law   regarding
burden of proof, no doubt the normal principle is that the burden
to prove that the claim is within limitation is upon the person or

party, who comes before the Court, to establish it and it is only
upon   leading   evidence   that   the   onus   shall   shift   upon   the
respondent or the other side.   The Apex Court in the cases of
Laxman Lal and K.P. Plantation Private Limited, has held, as has
been pointed out in the initial paras, that it is the constitutional
obligation   upon   the   State   to  pay   the   compensation   at   a  rate
which is not less than the market value of the land, as prescribed
under the second proviso to clause (1) of Article 31­A of the
Constitution of India.  It is, therefore, for the State to justify its
stand   that   all   the   steps,   as   are   required   to   be   taken   under
sub­section (2) of Section 12 read with Section 18 of the said Act,
have been followed, and that the claimant has failed to approach
the Court within the time prescribed under clause (a) and (b)
below   proviso   to   sub­section   (2)   of   Section   18   of   the   Land
Acquisition Act.  If the Collector or the State wanted to prevent
the   claimant   from   seeking   enforcement   of   constitutional
obligation or fundamental right, then the initial burden is upon it
to make out a case by necessary pleadings and proof by leading
evidence to show that the claim is barred by the law of limitation,

as prescribed under clauses (a) and (b) below sub­section (2) of
Section 18 of the said Act, which shall be subject to evidence in
rebuttal.    
52. Even the language of the clauses (a) and (b) below
sub­section (2) of Section 18 of the said Act requires the Collector
to   establish   the   fact   that   the   claimant,   as   contemplated   by
clause (a), was present or represented before him at the time
when   the   award   was   made,   and   in   other   cases   covered   by
clause   (b),   that   the   claimant   had   actual   or   constructive
knowledge of the essential contents of the award and that the
reference was not preferred within a period of six weeks or six
months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to
plead and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation.  It is, therefore,
for the State, acting through the Collector, to discharge its burden
if it wanted to deny a fundamental right to the claimant to get
the market value of the land acquired determined by the Court,

by seeking reference under Section 18 of the said Act.
53. It   is   not   expected   from   the   claimant   to   plead   and
prove  the  negative  facts that  he  was not  present or  was not
represented before the Collector when the award was made, as
contemplated by clause (a) below sub­section (2) of Section 18 of
the Land Acquisition Act, or any other cases covered by clause (b)
therein,     that   he   was   not   having   the   actual   or   constructed
knowledge of the essential contents of the award so as to prefer a
reference under Section 18 of the said Act either within a period
of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make
such pleading in the reference petition under Section 18 of the
said Act, but absence of such pleading would not be enough to
deprive   the   claimant   of   a   right   to   seek   a   reference   for
compensation at a market value of the land under acquisition.
The question No.(ii) is answered accordingly. 
54. On the question of limitation, the specific averment in

para 10 of the reference application under Section 18 of the Land
Acquisition in the present case is as under :
“10. The applicant came to know about the passing of
award on receipt of notice u/s 12(2) of Land Acquisition
Act on 28/6/1990 and 10/7/1990.   However, he was
not aware about the contents of the award.  He received
the certified copy of the order on 24/7/1990 and at that
time   they   got   full   knowledge   of   the   contents   of   the
award.   The   application   is   within   time.     The
compensation amount has been received by the applicant
under protest.”
The   Collector   at   whose   instance   the   land   was   acquired,   had
raised the question of limitation and the appellant was crossexamined.
 The relevant portion of which, is reproduced below :
“The award was passed on 2/5/90.  I have filed copy of
Award on record.  It is at Ex.35.  I had gone through the
contents of the same.  Its contents are correct.  It is not
correct to say that the reference application filed by me
was out of limitation.  It is not correct to say that the
case is not tenable in this Court.”
The   appellant   has   been   extensively   cross­examined   by   the
Collector but not on the point of limitation.    It is, therefore,

amply proved that though the award was passed on 2­5­1990, the
claimant got the knowledge of the essential contents of the award
upon receiving the certified copy on 24­7­1990 and the reference
was preferred under Section 18 of the Land Acquisition Act on
8­8­1990, which was within a period of six months from the date
of the knowledge of the essential contents of the award.  It was,
therefore, perfectly within the period of limitation.
As to Point Nos.(c) and (d) :
55. In paras 10 and 14, the Reference Court has held that
the   market   value   of   the   land   acquired   is   required   to   be
determined at the rate of Rs.10.50 per square foot, whereas in
para 21, the Reference Court has held that the market value of
the land acquired was Rs.8.50 per square foot, and therefore, the
applicant   is   entitled   to   get   compensation   at   the   rate   of
Rs.9,25,630/­   per   hectare   (in   the   operative   portion,   the
compensation is granted at the rate of Rs.9,25,650/­ per hectare).
The reliance is placed upon Exhibits 28 and 29, which are the
letters said to have been issued by the Tahsildar in the Office of

Collector of Stamps and Valuation at Chandrapur, which show
the consideration of Rs.15,000/­ for sale of 278.73 sq.mtrs., Plot
No.23 in Survey No.76/2.   Exhibit 30 relied upon is also the
communication by the Deputy Registrar (Stamps), addressed to
third person, calling upon him to pay the stamp duty on the
valuation of land at Rs.1,380/­.  None of these three documents
at Exhibits 28, 29 and 30 can be considered as an evidence to
determine the market value of the land Survey No.76/2­A, which
is under acquisition.
56. Be that as it may, if the value of the land in Exhibit 28
is to be taken into consideration, it is of Rs.15,000/­ for sale of
278.73 sq.mtrs. of land, which is equivalent to 3,000 sq.ft., the
rate   would   be   Rs.5/­   per   square   foot.   Exhibit   30,   the
communication, does not indicate either the land survey number
or the area in respect of which the valuation of Rs.3,180/­ is
shown.     Hence,   it   is   not   relevant   for   determination   of
compensation.   Except this, there is no other document relied
upon   by   the   Reference   Court   to   grant   the   enhancement   of

compensation.  The Reference Court has, therefore, committed an
error in enhancing the compensation to Rs.9,25,650/­ without
there being any evidence in support of it.
57. The Reference Court has referred to the document at
Exhibit 93, which is the sale index, showing sale of 3,400 sq.ft. of
land for Rs.3,400/­ on 19­6­1984.   The another portion of the
same land having area of 3,000 sq.ft. was sold for Rs.3,000/­ on
27­11­1984.  These sale indices indicate the value of the land at
the rate of Re.1/­ per square foot.  Even if 10% is added towards
increase   per   year,   the   amount   would   not   exceed   the   rate   of
Rs.1.70 per square foot.  If the market value is calculated at this
rate   in   respect   of   the   land   under   acquisition,   then   it   would
certainly be less than Rs.1,75,000/­ per hectare awarded by the
Land Acquisition Officer.   The Reference Court has, therefore,
committed an error in granting enhancement, ignoring the rate
reflected by Exhibit 93, the sale index in respect of the same land.
If the market value of the land in question is to be determined by
assuming   that   it   is   the   non­agricultural   land,   then   necessary

deduction   on   account   of   development   will   also   have   to   be
considered.  All such aspects are ignored by the Reference Court.
The enhancement granted cannot, therefore, be sustained.
58. Shri Maheshwari, the learned counsel appearing for
the claimant, has urged that the appellant – Maharashtra State
Electricity   Board   (now   Maharashtra   State   Power   General
Company Limited) had failed to file written statement to oppose
the   claim   for   enhancement   of   compensation   made   in   the
reference.   He has, therefore, urged that the appellant was not
entitled to file an appeal challenging such enhancement.   The
contention cannot be accepted.  It is for the claimant to establish
the entitlement for the market value of the land.   Even if the
appellant had failed to file written statement opposing the claim
for enhancement, that by itself would not be enough to deny the
appellant   the   right   of   appeal,   which   is   available   in   law,   as
provided under Section  54 of the  Land Acquisition  Act.   The
appellant is entitled to point out to the Court that the claimant
has to stand on his legs, and in the absence of any evidence in

support   of   the   findings   recorded,   the   appellant   is   entitled   to
challenge such findings by filing an appeal.  The appeal cannot be
dismissed   on   that   ground,   and   the   contention   is,   therefore,
rejected.
59. In the result, the appeal is allowed.  The judgment and
order dated 30­4­2003 passed by the learned Joint Civil Judge,
Senior Division, Chandrapur, in Land Acquisition Reference Case
No.28   of   1991,   is   hereby   quashed   and   set   aside.     The   Land
Acquisition Reference Case No.28 of 1991 stands dismissed.  No
order as to costs.
60. It is informed that the appellant has deposited in this
Court   the   entire   decretal   amount   of   Rs.38,38,618/­.     The
claimant   is   permitted   to   withdraw   certain   amount   upon
furnishing security to the satisfaction of the Reference Court, and
the claimant has actually withdrawn such amount.   In view of
this,   the   claimant   is   directed   to   re­deposit   the   amount   so
withdrawn, in this Court within a period of eight weeks from

today, failing which the appellant shall be entitled to enforce the
security   so   furnished   to   get   the   amount   realized   along   with
interest at the rate of 4% per annum from the date of withdrawal
till its re­deposit.  The appellant shall be entitled to withdraw the
balance amount lying in deposit in this Court along with interest,
if any accrued thereon.
61. At this stage, Shri Maheshwari, the learned counsel for
the respondent No.1/claimant, seeks stay of the aforesaid portion
of the order permitting the appellant to enforce the security to
realize the amount so withdrawn.   In view of the fact that this
Court   has   already   granted   the   claimant   six   weeks'   time   for
re­deposit of the amount in this Court, the question of enforcing
the order for a period of eight weeks by the appellant does not
arise.     Hence,   the   request   of   the   learned   counsel   for   the
respondent No.1/claimant for stay of the order is rejected. 
JUDGE.

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