These Appeals have been referred to me by the Hon'ble the Chief Justice, pursuant to a Judgment and Order of the Division Bench of this Court due to their conflicting views, for deciding the question raised in their Judgment and Order dated 20th and 21st October, 2005 passed by the Division Bench in First Appeal No. 251 of 1996 with First Appeal No. 1476 of 1996; in accordance with the provisions of section 98(2) of the Civil Procedure Code, 1908. There has been difference of opinion between two of my Learned Brother Judges R.M.S Khandeparkar, J. and V.M Kanade J.

2. A brief summary of the facts of this case is as follows:

3. On 16th February, 1980, the State of Maharashtra issued a notification under section 126(4) of the Maharashtra Regional Town Planning Act (hereinafter the MRTP Act) for acquiring land of the respondents/claimants for the purpose of development. Thereafter the Special Land Acquisition Officer (hereinafter the SLAO) passed an award and granted compensation at Rs. 4/- to Rs. 6/- per sq. mtr. on 12th February, 1986. On 19th February, 1986, the notice under section 12(2) of the Land Acquisition Act, 1894 (hereinafter the Act) was issued. On 5th June, 1986, reference application under section 18 of the Act were filed with the Collector in the above Appeal. It is the contention of the Appellant that there was a 65 days delay in filing the reference under section 18 of the Act with the Collector/SLAO. The said contention was neither raised nor proved before the Reference Court. The Collector forwarded the reference to the Court for its determination without raising any objection as to the bar of limitation. The Reference Court while deciding the reference finally did not deal with the question of limitation nor was it an issue. Even in the Appeal Memo of the State of Maharashtra before this Court in the First Appeal there is no objection as to the reference being barred by limitation. To put it in other words, the objection regarding limitation was orally raised by the Appellant for the first time after 19 years, at the time of final hearing of the above Appeal, and that too orally.

4. At this juncture, I deem it fit to first reproduce section 18 of the Act and thereafter mention the points on which there is a difference of opinion between two of my Learned Brother Judges. Section 18 of the Act reads as under:—

“(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 determination of the Court, whether his objection be to the measurement of the land, the amount of 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 objections to the award is taken:

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, sub-section (2); or within six months from the date of the Collector's award, whichever period shall first expire.”

5. The following two questions arise, in view of the difference of opinion between the two Learned Judges:

a) Can the Appellant be permitted to raise the issue of limitation for the first time as a preliminary objection, during the oral arguments, without even making an application to amend the Appeal Memo and without affording an opportunity to the respondents to oppose the same?

b) If the Appeal Memo is permitted to be amended, whether this issue of limitation ought to be remanded back to the Reference Court, so as to enable both the parties to lead evidence on the factual aspect with regard to this issue of limitation?

6. The Supreme Court while dealing with the scope of Order 41 of the Code of Civil Procedure held in Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735, in paragraph Nos. 9 and 10 as follows:—

“9. There can be no doubt that if a party asks for a relief on a clear and specific ground and in the issues or at the trial, no other ground is covered either directly or by necessary implications, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new.”

“10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance.”

“What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party the Court cannot do injustice to another.”

(Emphasis supplied).

7. A mere opportunity at the time of arguments to the petitioner's Counsel cannot be considered as an adequate opportunity, as has been stated in the case of Jamita Ram v. Collector of Kangra District, AIR 1982 HP 53. The judgment of the Himachal Pradesh High Court, Paragraph 13 of the judgment is quoted below:

“Now it is necessary that before a person is non-suited on the ground of limitation an adequate opportunity should be granted to him. For this it is necessary that the party should know that this question is being raised and is involved in the matter. It is true that it is not necessary that an issue must be framed. But the framing of an issue will always prevent the party from raising the plea of being taken unaware. Where the issue on the question of limitation is absent the record must show that the party has gone to trial being conscious of this question. There is nothing on the record of this case that the petitioner was conscious of this fact. It appears that the learned Judge, who consolidated four references which have been decided by a common judgment, did not pay any serious attention to the rights of the petitioner. Giving an opportunity at the time of arguments to the petitioner's Counsel cannot by any stretch of imagination be termed as adequate opportunity.”

8. A question arises as to whether a mere lapse on the part of the Collector to deal with the limitation issue would bar the claimants' rights to enhanced compensation? In this case, limitation is a mixed question of law and fact. For this purpose, evidence has to be furnished by both parties in support of their respective contentions. Both parties will hence be able to elucidate their case. Only then can the question of limitation be decided in its entirety. Reliance can be placed on the judgment of Narne Rame Murthy v. Ravula Somasundaram, (2005) 6 SCC 614. The Hon'ble Supreme Court has held in paragraph No. 5 of the said judgment as under:—

“…. In cases where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised, and then proved”.

9. It is clear that in the above Appeal the Government had an ample opportunity to raise the plea of bar of limitation before the Reference Court. They also had an opportunity to raise the same in the appeal memo, or amend it at a later stage by a simple application, between the 16th August, 2005 till 20th October, 2005 when the above Appeals were on board for final hearing. None of these steps were taken which clearly points out to their laxity. Hence, it would not be available to them to take the respondents/claimants by surprise in raising this issue at such a late stage, and that too orally.

10. Whether a lapse on the part of the Collector would disentitle the claimants, has been clearly answered in the case of Raja Harish Chandra Singh v. Deputy Land Acquisition Officer, AIR 1961 SC 1500. The Hon'ble Supreme Court has observed that;

“The literal and mechanical construction of the clause (2) of section 12 of the Act would be wholly inappropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under section 12(2) should directly tend to make 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”.

11. It would be appropriate to analyse the implications of the procedural lacuna of the Reference Court and the Collector which have arisen in the instant Appeals. At this juncture, I would like to refer to the following paragraph 8 of the judgment of the Supreme Court in the case of Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal, 1996 (9) SCC 414, which also quotes Mohammed Hasnuddin v. State Of Maharashtra., (1979) 2 SCC 572.

“The Collector is required under section 18 to make a reference on the fulfilment of certain conditions, namely:— i)… ii)…. iii) Time within which the application shall be made.” In Paragraph 22 (of the Hasruddin's case), the Supreme Court held that “the power to make a reference under section 18 is circumscribed by the conditions laid down therein and one such conditions is a condition regarding limitation to be found in the proviso. The Collector acts as a statutory authority. If the application is not made within time the Collector will not have the power to make reference. In order to determine the limitations on his own power the collector will have to decide whether the application presented by the Claimant is or is not within time and specify the conditions laid down under section 18. Even if the reference is wrongly made by the Collector, the Court will have to determine the validity of the reference because the very jurisdiction of the Court to hear a reference depends upon a proper reference being made under section 18”.

12. In the case of Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal, (1996) 9 SCC 414, the Supreme Court at Paragraph 8 has held as under:—

“If the reference is not proper there is no jurisdiction in the Court to hear a reference. It was, therefore, held that it is the duty of the Court to see that statutory conditions laid down in section 18, including the one relating to limitation, have been complied with and the application is not time-barred. It is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It has to proceed to determine compensation and if it is time-barred, it is not called upon to hear the same. It is only a valid reference which gives jurisdiction to the Court”.

13. Thus the very fact that the preliminary objection regarding the bar of limitation was not raised either before the Collector or before the Reference Court, the same has to be considered now. In the case of Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwari, (1995) 2 Bom. C.R 436, in paragraph 5 it is observed by the Supreme Court, as follows:—

“Even in a case whether the Special Land Acquisition Officer comes to prima facie finding that the reference application is barred by limitation, it is incumbent on his part, before dismissing the application on that ground to give an opportunity of hearing to the claimants to show cause as to why it should not be rejected as barred by limitation. In that event, the claimant may get an opportunity to satisfy the officer concerned that on a proper interpretation of the provisions of the Act dealing with the period of limitation, the reference application is within time or in the alternative, may file an application showing cause for the delay and praying for condonation thereof.

14. In the case of Ramkali Bhattacharjee v. State of WB, (1995) Supp 3 SCC 314 the facts of which are very similar to the present case, the Supreme Court has observed as under:—

“4. Having considered the paucity of evidence in this behalf, (issue of limitation), we find that it is not desirable to decide this controversy without factual foundation. We think that an appropriate course would be that the reference Court should go into the question:

(i) What is the date on which the award as required under section 12 read with section 11 was made by the Land Acquisition Officer, in accordance with laws, and notice as required under section 12(2) were served on the claimants if they are not present or appeared through Counsel at the time of announcing award under section 11?

(ii) What are the dates on which the applications under section 18 came to be filed by the claimants and to decide whether the applicants are within the limitation as provided as under the proviso to section 18(2) of the Act?

“5. Since these questions hinge upon the findings of fact and since no positive finding could be recorded in this behalf on the basis of evidence on record, we hold that the judgment of the High Court was not correct. Accordingly, it is set aside and the award and decree of the reference Court is also set aside. The matter is referred to the reference Court, firstly to decide whether the reference applications were made within limitation in accordance with law. If the finding is in favour of the claimant, then it has to decide the compensation according to law. Since it is an old matter the reference Court is directed to dispose of the matter within six months from the date of the receipt of the order of this Court”.

15. I fully agree with the view taken by learned Brother Kanade J., in paragraph No. 58 of the aforesaid judgment that “even if the State is permitted in a given case to raise an objection regarding delay in filing of reference after a lapse of nearly 19 to 20 years, the claimants cannot be taken by surprise and merely by referring to certain averments in the claim applications which are on record, an inference cannot be drawn without giving a reasonable opportunity to the claimants, particularly when the limitation is a mixed question of fact and law”.

16. I fully agree with all the legal propositions set forth in the erudite Judgment of my Learned Brother Khandeparkar, J. However my Learned Brother Khandeparkar, J. has proceeded on the basis of what is stated in application for reference, as mentioned in paragraph 51 of the Judgment, as the dates are mentioned therein, and as such there is no dispute.

17. It may be noted here that all the Reference Applications are cyclostyled applications, merely filled in by the learned Advocates and the list of dates are mentioned. The applications have not been solemnly affirmed by the claimants. The applications have been signed in Marathi or by thumb impressions by the applicants. There is nothing on record to indicate that the applicants were aware of the dates or contents in those Reference Applications. In the above group, there are 142 First Appeals and in most of them there are more than one claimant and in some of them the legal heirs of original claimants are representing.

18. It is also vital to note that till date there is no affidavit filed on behalf of the State, indicating the correct date of service of notice under section 12(2) of the Act. Appellant State has merely filed a chart indicating dates of service.

19. It may also be noted that in the above, my Learned Brother Khandeparkar J. has stated in paragraph 2 the delay to be 65 days, and my Learned Brother Kanade J. has stated in Paragraph 61 as 107 days delay. In the above, there is no finding recorded before any forum on the issue of limitation.

20. Under the aforesaid facts and scenario, the claimants cannot be deprived of their statutory right to seek enhanced compensation, without a fair opportunity to the claimants to deal with the issue of limitation.

21. One should not forget that in Ram Kali Bhattacharjee case, the Hon'ble Supreme Court itself had remanded the matter back to the Reference Court on the issue of limitation.

22. In the above, in the group of 142 First Appeals, most of the claimants are small and illiterate farmers, and they cannot be denied justice on technicalities and obstructive attitude of the Appellant State, which amounts to filibustering tactics.

23. In the light of the above discussion, I answer the first question in the negative. If the Appellant wants to raise the issue of limitation, the same will have to be by way of an amendment application to amend the Memo of Appeal and sufficient opportunity ought to be given to the respondents-Claimants to oppose the same.

24. I answer the second question in the affirmative.

Order accordingly.