. 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.
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
