Judgment R. M. S. KHANDEPARKAR, J. ( 1 ) HEARD. A preliminary objection is sought to be raised on behalf of the respondent-State Government to the effect that the reference in the matter was bad in law and, therefore, the award passed by the reference court is without jurisdiction and therefore needs to be quashed since the reference application under Section 18 of the Land Acquisition Act, 1894, hereinafter called as "the said Act", was filed beyond the period of limitation prescribed thereunder. ( 2 ) THE learned Government Advocate submitted that the award in the case in hand was passed on 12-2-1986. Admittedly, the Notice under Section 12 (2) of the said act was issued and served on 19-2-1986. However, the application under Section 18 for reference of the matter to the reference Court for enhancement of the compensation was filed by the claimants on 5-6-1986. As there was a delay of 65 days in filing the application under Section 18 and the Collector/land Acquisition officer, who received the application, not being a court, had no authority or jurisdiction to condone the delay and to refer the matter to the reference Court and, therefore, the reference itself was without jurisdiction and hence the reference Court could not have entertained the reference application nor could have proceeded with the matter. For the same reason, the impugned award is without jurisdiction. Reliance is placed in the decision of the Full Bench in suresh Marutrao Jadhav v. State of Maharashtra and Anr. , reported in 2001 Vol. 103 (4) Bom. L. R. 897 = Officer on special Duty (Land Acquisition) and another v. Shah manilal Chandulal Etc. , reported in 1996 (1) Mh. L. J. 609. The period of limitation contemplated under section 18 would commence strictly from the date of service of the Notice under Section 12 (2) or from the date of knowledge of the award. In the case of the former, the limitation being of six weeks and in the case of the latter, the limitation being of six months. Attention is drawn to the decision of the Apex Court in the matter of State of Punjab and another v. Satinder bir Singh, reported in (1995) 3 SCC 330 while placing reliance in the decision of the Apex Court in the matter of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal Etc. Attention is drawn to the decision of the Apex Court in the matter of State of Punjab and another v. Satinder bir Singh, reported in (1995) 3 SCC 330 while placing reliance in the decision of the Apex Court in the matter of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal Etc. , reported in 1996 (1) Mh. L. J. 609. Further, referring to the decision of the Apex Court in Mahadeo Bajirao Patil v. State of Maharashtra and others, reported in (2005) 7 scc 440 , it is argued that irrespective of the fact whether the claimant has full knowledge about the award or not, the commencement of the limitation for the purpose of filing of the reference application under section 18 will not be obstructed or be affected in any manner on the ground of the Notice under Section 12 (2) being incomplete in relation to the contents of the award. ( 3 ) ON the other hand, learned Advocate appearing for the appellants/claimants has submitted that the issue regarding limitation was never raised at any point of time, even at the time of filing of the appeal and even today the memo of the appeal has not been amended incorporating any such ground and the point is sought to be taken only in the course of the arguments. The point of limitation is not a pure question of law and in order to enable a party to raise such point, same should be reflected from the pleadings of the party and there must be an opportunity for the opposite party to know in advance about such defence to be raised in the matter so that the party approaching the Court gets the opportunity to satisfy the Court that the proceedings have not been initiated beyond the period of limitation or that there is sufficient cause for the delay in filing the proceedings. There is no affidavit filed on behalf of the State disclosing the date of service of notice under Section 12 (2 ). There is no affidavit filed on behalf of the State disclosing the date of service of notice under Section 12 (2 ). In any case, at the relevant time i. e. when the matter was referred to the reference Court, the Collector had found the reference application having been filed within time and therefore it was referred to the reference Court and this is further confirmed from the fact that the plea of limitation was never taken till it was raised by the learned Advocate for the Government in the course of the arguments. In order to consider the point regarding limitation, necessary issue in that regard has to be be framed before the reference Court and opportunity to be given to the parties to lead evidence on such issue and it cannot be taken by way of surprise in the course of the arguments in the appeal. Considering the fact that there were more than one claimant in the matter, there could be a possibility of service of notice on different claimants on different dates and certainly the period of limitation would differ in respect of each of the claimants. These aspects can be dealt with only when the question of limitation is raised at the right stage and opportunity is given to the parties to lead evidence in that regard. As the law stood at the relevant time, the parties were entitled to have the copy of the award in order to enable them to file an effective reference application under Section 18 and mere Notice under section 12 (2) was not sufficient without detail information about the award. Reliance is sought to be placed in the decisions in the matters of Banarsi Das v. Kanshi Ram, reported in AIR 1963 SC 1165 , State of punjab v. Qaisar Jehan Begum, reported in AIR 1963 SC 1604 , Raja Harish Chandra Raj Singh v. Deputy Land acquisition Officer, reported in AIR 1961 SC 1500 and state of Punjab v. Darshan Singh, reported in (2004) 1 scc 328 . ( 4 ) WE have also heard Shri P. N. Joshi, Advocate, at his request and as the matter involves important question of law and he has submitted that in the absence of confrontation being made on the relevant issue by the state at the appropriate stage, there can be no opportunity for the claimant to establish his case regarding the reference being in time. Being so, merely by referring to the date of service of the Notice under section 12 (2) of the said Act, and considering the fact that at the relevant time the law required sufficient knowledge about the award to the claimant to enable him to file reference application under Section 18, the point of limitation for the purpose of filing reference application cannot be decided merely on oral objection in that regard and, that too, at the appellate stage. The very fact that the reference was submitted by the collector without recording any objection regarding bar of limitation discloses that the Collector had considered this aspect and referred the matter as it was within time. Without prejudice to this contention, the learned Advocate has submitted that in case the Court finds any substance in the contention regarding bar of limitation sought to be raised on behalf of the State, the matter will have to be remanded by exercise of power under Order 41, Rule 25 so that the parties get fair opportunity to put forth their rival contentions and there would be proper assistance to the Court to decide the issue of limitation, without causing any injustice to either of the parties. To knock out the claimant at the appellate stage on the mere objection sought to be raised would virtually amount to injustice to the claimant and in that connection it was submitted by the learned Advocate that the decision of the Apex Court in qaisar Jehan Begums case (supra) following the decision of Raja Harish Chandra Raj Singhs case (supra) was delivered by a Bench of Three Judges and till this day there has been no further judgment of the Bench of Three judges of the Apex Court taking the view contrary to the view which was taken in Raja Harish Chandra Raj Singhs case followed in Qaisar Jehan Begums case. ( 5 ) THE learned Government Advocate, in rejoinder, has stated that though no specific ground has been taken in the memo of the appeal, that would not debar the State from raising the said point as it relates to the point of jurisdiction of the reference Court to entertain the reference application. He has also stated that there was no need to frame issue on the point of limitation and in that connection sought to rely upon the decision of the Full Bench in Shah Manilal Chandulals case (supra ). He has, however, fairly stated that there is no explanation from the State as to why the memo of the appeal has not been amended or why the said ground was not raised at the time of filing of the appeal as well as why the same was not raised in the reference Court. At the same time he has stated the fact that the State is going to raise the point of limitation was made known to the claimants Advocate about a week back and in that regard a chart disclosing the date of service of Notice under Section 12 (2) and the filing of the reference application was circulated with the copy thereof to the advocates for the claimants. ( 6 ) CONSIDERING the rival contentions in the matter, the following points arise for consideration. "1. Whether the State is entitled to raise the point of bar of limitation for reference application at the appellate stage without such point being raised before the reference Court and without amending the memo of the appeal? 2. Whether the issue of bar of limitation for filing the reference application can be dealt with and decided merely on the basis of the records submitted to the reference Court and the pleadings in the reference application or the same is required to be decided by framing of the issue before the reference Court giving opportunity to the parties to lead evidence in that regard? 3. What would be the date of commencement of limitation for the purpose of filing of reference application under Section 18 of the said Act? 4. What was the period of limitation for reference under Section 18 of the said Act at the time the reference in question was made in the case in hand? 5. 3. What would be the date of commencement of limitation for the purpose of filing of reference application under Section 18 of the said Act? 4. What was the period of limitation for reference under Section 18 of the said Act at the time the reference in question was made in the case in hand? 5. Whether the reference proceedings which have been decided without considering the point of the limitation would stand vitiated and would be rendered bad in law ab initio?" ( 7 ) BEFORE considering the rival contentions sought to be raised in the matter, it would be appropriate to note down certain provisions of law relevant for the decision. As far as the said Act is concerned, Section 12 (2) thereof provides for immediate intimation of the award to the persons interested. Accordingly, such intimation has to be given in the form of a Notice of the award. The procedure which is prescribed and followed in that regard and the format of the Notice disclose the same to be addressed to the interested person disclosing the number of the acquisition proceedings, the identity of the property acquired, the area which is acquired, the compensation which is offered, the apportionment of the compensation, the date on which the compensation would be disbursed, and the date of the award declared by the Land Acquisition officer. It also informs the claimant that he can accept the compensation without prejudice to his right. ( 8 ) THE Section 18 (1) provides that 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. The sub-section (2) thereof provides that the application shall state the grounds on which objection to the award is taken and the proviso thereto deals with the period of limitation for filing the application. In terms of Clause (a) of the proviso, if the person filing the objection was present or represented before the Collector at the time of the award, then he has to file the reference application within six weeks from the date of the award of the collector. In terms of Clause (a) of the proviso, if the person filing the objection was present or represented before the Collector at the time of the award, then he has to file the reference application within six weeks from the date of the award of the collector. In terms of Clause (b) of the proviso, in other cases the period of limitation is of six weeks from the date of receipt of the Notice from the collector under Section 12 (2) or within six months from the date of the Collectors award, whichever period shall first expire. ( 9 ) THE Section 45 deals with the subject of service of notice under the said Act and the sub-section (1) thereof provides that service of any Notice under the said Act shall be made by delivering or tendering a copy thereof signed in the case of a notice under Section 4, by the officer therein mentioned, and in the case of any other notice, by an order of the Collector or the Judge. In terms of sub-section (2), whenever it may be practicable, the service of the Notice shall be made on the person therein named. The sub-section (3) provides that when such person cannot be found, the service may be made on any adult male member of his family residing with him; and if no such adult male member can be found the Notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired, provided that if the Collector or judge shall so direct, a Notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post office Act, 1898 and the service of it may be proved by the production of, the addressees receipt. ( 10 ) THE Section 26 (1) of the said Act provides that every award under Part III of the said Act shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23 and also the amounts, if any, respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts. The sub-section (2) thereof provides that every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning within the meaning of Section 2, Clause (2) and Section 2, Clause 9, respectively, of the Code of Civil Procedure, 1908. ( 11 ) THE Section 53 of the said Act provides that save in so far as they may be inconsistent with anything contained in the said Act, the provisions of the Code of civil Procedure, 1908 shall apply to all proceedings before the Court under the said Act. And Section 54 thereof provides that subject to the provisions of the code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under the said Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil procedure, 1908, and in Order 44 thereof. ( 12 ) THE Section 107 of the Code of Civil Procedure, 1908 deals with the powers of the Appellate Court and the sub-section (2) thereof provides that the Appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the C. P. C. on the Courts of original jurisdiction in respect of suits instituted therein. ( 13 ) THE Order 41, Rule 1 (2) deals with the subject of contents of the memorandum of appeal and it provides that the memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. The rule 2 of Order 41 provides that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under the said rule, provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. ( 14 ) THE Rule 25 of Order 41 provides that where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate court together with its findings thereon and the reasons therefore within such time as may be fixed by the appellate Court or extended by it from time to time. ( 15 ) THE Rule 33 of Order 41 provides that the Appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees, provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. ( 16 ) CONSIDERING the provisions of Sections 53 and 54 of the said Act along with Section 26 thereof and r/w section 107 and the provisions of Order 41 of the Code of Civil Procedure, it cannot be disputed that the party seeking to challenge the decree and for that matter the award passed by the reference Court in the proceedings initiated under Section 18 should enumerate the grounds of challenge to the award in the memo of the appeal. However, at the same time, the provisions of law comprised under Rule 2 r/w Rule 33 of Order 41 would reveal that the decision of the Court in appeal need not be confined to the grounds of challenge either in the memo of the appeal or in the cross-objections, albeit the matter cannot be disposed of on any such additional ground otherwise than those have been enumerated in the memo of the appeal or the cross-objections unless a sufficient opportunity of contesting the matter on such additional ground is to be made available to the parties to the proceedings. Considering the same, it cannot be disputed that the appellant, as a matter of right, cannot raise the bar of limitation without raising the specific ground in that regard in the memo of the appeal, either at the time of filing of the appeal itself or by way of amendment to the memo of the appeal. Nevertheless, if the point regarding the bar of limitation can be dealt with on the basis of all the materials already on record, and if the parties are made aware of the same before the decision in that regard is taken by this Court, certainly the appellant could not be forbidden from bringing such issue to the notice of the Court nor the Court should feel shy to consider the same in proper perspective. It cannot be forgotten that the law of limitation though does not take away the right of the party, it certainly bars the remedy. Being so, when the point relating to bar of remedy is brought to the notice of the Appellate Court, merely because the said point had not been raised in the memo of the appeal, that would not deter this Court from taking into consideration suchpoint; rather, bearing in mind the provisions of law comprised under Order 41, it would justify such a procedure to be adopted by the Appellate court. ( 17 ) THE Section 3 of the Limitation Act, 1963 provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Referring to this provision, the law is well-settled that when any proceedings are instituted in a Court, it is obligatory for the Court to ascertain whether the proceedings have been initiated within the period of limitation prescribed for instituting those proceedings. The Section 107 (2) of the C. P. C. clearly empowers the Appellate Court to exercise all the powers of the Court of original jurisdiction. The Section 107 (2) of the C. P. C. clearly empowers the Appellate Court to exercise all the powers of the Court of original jurisdiction. Primarily it would be the duty of the reference Court to ascertain whether the proceedings under Section 18 have been instituted within the period limitation and in case, the reference Court fails to perform its obligation in that regard, it would be a duty of the Appellate Court to ascertain the same irrespective of the fact whether objection in that regard has been raised by the parties to the proceedings or not. Mere absence of the ground in the memo of the appeal in relation to the bar of limitation for institution of the proceedings under Section 18 would not come in the way of the appellant bringing the said fact to the notice of the Court in the appeal, and once such a fact is brought to the notice of the Appellate court, the Court would require the claimant to satisfy that the reference was within the period of limitation. As regards the method of satisfying and whether it would be by way of leading evidence and for that matter remand is necessary or not will be dealt with subsequently, but at this stage, suffice to observe that the absence of ground in the memo of the appeal would not come in the way of this Court in dealing with the said issue, nor will be a hurdle for the appellant to bring the said fact to the notice of this Court. ( 18 ) AS regards the opportunity of being heard in the appeal on the said issue in terms of the proviso to Rule 2 of Order 41, certainly if the said ground was brought to the notice of the Advocate for the claimants a week in advance, it would be sufficient compliance of the said proviso as far as the hearing of the appeal on the said ground is concerned. Undisputedly, in the case in hand, as informed to us and not disputed by the learned advocate for the claimants, that the appellant would raise such a ground was duly informed to the Advocate for the claimants, about a week back, while circulating the chart disclosing the date of the award, service of the notice under Section 12 (2) and the date of filing of the reference application. Being so, I am of the considered opinion that as far as the opportunity to the appellants to deal with the said issue is concerned, there is sufficient compliance of the said proviso and indeed the learned Advocate for the claimants has argued at length on this issue, relying upon reported decisions in that regard. That apart, the said issue is also dealt with in various other matters not only by this court but even there are rulings of the Apex Court on the said point and it is not a new point as such nor it can be said that the claimants are put to surprise on account of rasing of such a point. ( 19 ) THE Section 18 of the said Act, as already seen above, prescribes specific period of limitation for filing of the application for reference with request for enhancement of compensation. It specifically provides a period of six weeks from the date of receipt of the notice under Section 12 (2) of the said Act and a period of six months from the date of the Collectors award. As regards the date of commencement of limitation in case of receipt of Notice under Section 12 (2), the provision is amply clear. There was some doubt regarding the commencement of period of limitation in case of six months from the date of the Collectors award. Was it to start from the date of declaration of the award under Section 11 or from the date of knowledge of the award? However, the said point was set at rest by the decision of the Apex Court in Raja Harish Chandra raj Singhs case. That was a case where undisputedly no notice of award was given as required under Section 12 (2) of the said Act. The award was made on 25-3-1951. Information as regards the award was received by the claimant therein on 13-1-1953 and he filed the application under Section 18 of the said Act on 24-2-1953. That was a case where undisputedly no notice of award was given as required under Section 12 (2) of the said Act. The award was made on 25-3-1951. Information as regards the award was received by the claimant therein on 13-1-1953 and he filed the application under Section 18 of the said Act on 24-2-1953. In those facts, while construing Section 18 of the said Act, and particularly the expression "date of the Collectors award" found in Section 18 (2) (b) of the said Act, it was observed 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 but it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. It was held that if the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced and if the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the 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. Similarly if without notice of the date of its pronouncement an 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. In that connection, it was ruled that"the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the 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 constructively actually or constructively. " (emphasis supplied) ( 20 ) THE decision clearly, therefore, discloses that the same relates to the issue as to the commencement of limitation for filing of the reference application in cases where no Notice under Section 12 (2) of the said act is served. It is not in relation to the cases where, undisputedly, the Notice under Section 12 (2) is served upon the claimant. It is not in relation to the cases where, undisputedly, the Notice under Section 12 (2) is served upon the claimant. It is always to be borne in mind that the decision is what is decides and not what may follow therefrom. ( 21 ) AN application under Section 18 (1) of the said Act can be in relation to four factors - (1) relating to objection to the measurement of the land, (2) the amount of compensation awarded, (3) the persons to whom it is payable and (4) the apportionment of the compensation amongst the persons interested. It cannot be disputed and it has been already held by the Full Bench of this court as well as by the Apex Court that the proceedings under Section 18 of the said Act are the original proceedings at the instance of the claimant. The burden to prove the claim made under the said provision of law entirely lies upon the claimant. The onus does not shift upon the State unless the initial burden is discharged by the claimant. ( 22 ) THE provisions of Section 18 of the said Act, the scope of the controversy which can be raised under the said provisions and the period of limitation within which the same can be filed, as well as the various decisions delivered by this Court as well as by the Apex court on this aspect, all these things disclose that it is for the claimant to satisfy the Collector or the Land acquisition Officer while filing the application that the same has been filed within the period prescribed under the said provision and it has to be by the person interested in relation to the land in question. Evidently, therefore, it follows that in cases where such a reference application is filed consequent to the service of the Notice under Section 12 (2) and as it is required to be filed within six weeks from the date of service of such Notice, obviously the claimant will have to disclose in the application, the date of service of such Notice so as to entitle him to file such an application and to enable the Collector or the Land acquisition Officer to entertain the same. Evidently, the burden to establish that the application has been filed within time prescribed under the said provision of law would be essentially upon the claimant. Evidently, the burden to establish that the application has been filed within time prescribed under the said provision of law would be essentially upon the claimant. Till and until the claimant discharges this burden, the onus cannot shift upon the respondent-State or the acquiring body. ( 23 ) THE Full Bench of this Court in Suresh Marutrao jadhavs case (supra), relying upon the decision of the apex Court in Shah Manilal Chandulals case, has already held that the Collector or the Land Acquisition Officer functioning under Section 18 is not a Court. It is to be noted that neither the Apex Court nor this Court laid down any new law as such by the said decision. The law in that regard was already on the statute book and that is only reiterated by the Courts in their judgments. Consequently, it has also been held that the provisions of the Limitation Act, 1963 would not apply to the proceedings before the Collector or the Land Acquisition officer dealing with the application under Section 18 of the said Act and therefore such an authority will not have powers to condone the delay by invoking the provisions of law under Section 5 of the Limitation Act. In other words, if the application is filed beyond the period of six weeks from the date of service of the notice under Section 12 (2), the Collector will have no power or jurisdiction either to entertain such an application or to refer such application to the reference Court. This point is well-settled by the decision of the Full Bench r/w the decision of the Apex court in Shah Manilal Chandulals case. The point then arises as to what happens when the Collector inspite of the fact that the application is filed beyond the period of six weeks from the date of service of the Notice refers the application to the reference Court and the reference Court thereupon proceeds with the matter without ascertaining the point of limitation as well as when no such point is raised by the State throughout the proceedings before the reference Court. Will such proceedings stand vitiated or would be saved in view of the decisions of the Apex Court in Raja Harish Chandra raj Singh and Qaisar Jehan Begums case r/w the decision of the Apex Court in State of Punjab v. Darshan Singh (supra), as sought to be contended on behalf of the claimants? ( 24 ) AS already seen above, the Collector or the Land acquisition Officer receiving an application under section 18 beyond the period of limitation will have no jurisdiction to entertain the same or to refer the same to the reference Court and obviously for the same reason any reference made by an authority without jurisdiction would be ab initio bad and for the same reason the reference Court also will not get the jurisdiction to deal with the matter. It is to be noted that the reference Court cannot independently take cognizance of an application for enhancement of the compensation. It has to deal with the application only when it is referred under Section 19 r/w Section 18 of the said act. The Section 20 of the said Act is also very clear in that regard. The jurisdiction of the Court to issue notice to deal with the claim for enhancement of compensation depends upon the reference by the Collector on such application filed by the claimant. Being so, if the reference is filed beyond the period of limitation, the Court will not get jurisdiction to entertain the same. It is to be noted that though the provisions of the Limitation Act are not applicable to the Collector being not a Court, undoubtedly, the Court dealing with such an application being referred by the Collector will have to consider the matter bearing in mind the provisions of Section 3 of the Limitation Act. At the same time, it is also to be noted that it is also settled by the decision of the Apex Court that the Court will have no power to condone the delay as the delay is not at the stage of reference of the matter by the collector but at the stage of filing of the application for reference before the Collector who is not the Court. Nevertheless, as far as the obligation of the Court is concerned to ascertain whether the reference is within time, it will have to consider the same under Section 3 of the Limitation Act. Nevertheless, as far as the obligation of the Court is concerned to ascertain whether the reference is within time, it will have to consider the same under Section 3 of the Limitation Act. This is primarily to ascertain whether the Court will have jurisdiction to entertain the reference. ( 25 ) ONCE it is clear that the Collector had no jurisdiction to refer the matter to the reference Court and on that count the reference Court will not get the jurisdiction to entertain the proceedings, merely because the Collector while referring the matter either negligently or even otherwise makes a statement to the effect that the reference is in time and the reference court continues with the proceedings in the absence of any objection in that regard being raised by the State, that by itself will not make the proceedings to be valid and lawful. Neither the failure on the part of the authorities to raise such bar of period of limitation nor the consent even if given by the parties to proceed with the matter could bestow upon the Court the required jurisdiction to deal with the matter. Once the Court is found to have no jurisdiction to deal with the matter, no amount of consent, express or implied by the parties can give jurisdiction to the Court. Being so, the point which goes to the root of the jurisdiction of the Court to entertain the reference application itself, mere lapse on the part of the State to raise the preliminary objection regarding the bar of limitation would not give jurisdiction to the Court to deal with the matter nor will legalise the proceedings conducted without jurisdiction. Merely because nineteen years have passed since the date of reference, it will not make any reference valid or lawful. Mere lapse of time would not give legal sanctity to the proceedings without jurisdiction. ( 26 ) AS already stated above, it is primarily for the claimant to disclose the date of service of the Notice under Section 12 (2) when the factum of service of Notice is not in dispute. Mere lapse of time would not give legal sanctity to the proceedings without jurisdiction. ( 26 ) AS already stated above, it is primarily for the claimant to disclose the date of service of the Notice under Section 12 (2) when the factum of service of Notice is not in dispute. Once it is the obligation of the claimant in that regard, if the claimant fails to disclose such date and merely on that count the matter is referred or the reference Court proceeds to entertain the reference application, that itself also will not give the reference Court the jurisdiction which it did not have. ( 27 ) IT is to be noted that for all purposes the Court dealing with the reference application is a special court in that regard and in that sense though the jurisdiction of that Court would depend upon a lawful reference. Therefore merely because a civil Court which otherwise has inherent jurisdiction to deal with all civil matters, that by itself would not empower the court to deal with the claim regarding enhancement of compensation relating to the land acquired under the said Act. The very jurisdiction of the Court to entertain such a reference depends upon a valid and lawful reference in the absence of which the Court will be without jurisdiction to deal with the matter pertaining to the claim for enhancement of the compensation relating to the land acquired under the said Act. ( 28 ) CONSIDERING the above aspects, therefore, any order or award passed by the reference Court in such a reference which is made without jurisdiction would be an award without jurisdiction and therefore a nullity. Undoubtedly, once an order or a decree is passed by any such Court without jurisdiction, unless it is set aside or declared as a nullity, it remains to be an enforceable award. Being so, in an appeal the point of nullity on the ground of absence of lack of jurisdiction to entertain the reference application can be raised, as it goes to the root of the jurisdiction to entertain the reference proceedings. It would be the duty of the appellate Court to look into such issue irrespective of the fact whether such a ground is raised in the memo of the appeal or not. It would be the duty of the appellate Court to look into such issue irrespective of the fact whether such a ground is raised in the memo of the appeal or not. Only precaution to be taken is to afford opportunity to the parties to deal with the said issue at the appellate stage. ( 29 ) IT is well-settled that any decree passed by a court without jurisdiction is a nullity and its invalidity can be set up wherever and whenever it is sought to be enforced or relied upon even at the stage of execution or even in the collateral proceedings. It was ruled by the Apex Court in Kiran Singh and others v. Chaman Paswan and others, reported in AIR 1954 SC 340 , that a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by the consent of the parties. Considering the same, mere lapse on the part of the State to raise the point of bar of limitation or failure in that regard to raise a specific ground of challenge in the memo of the appeal will not come in the way of the appellant to raise the said issue by way of an argument by giving proper notice in that regard to the opposite side before raising such point. Undoubtedly, the Advocate for the claimants was duly informed well in advance that such a point would be raised in the matter. ( 30 ) AS regards the contention that such a point cannot be decided in the absence of any issue being framed before the reference Court, attention in that regard was drawn to Rule 25 of Order 41. The question of framing of an issue in that regard does not arise at all. As already seen above, Section 18 (2) (b) prescribes the limitation of six weeks from the date of service of notice to enable the party to file an application and only on filing of such an application within the said period, reference can be made to the reference Court and thereupon the reference Court is required to cause a notice to be issued in relation to such reference. In other words, the point relating to the reference being within time or not is primarily to be dealt with by the collector at the time of entertaining the application under Section 18 and in case of any failure in that regard, by the Court before issuing Notice based on such reference. Undoubtedly, the reference Court will have to hear the concerned party once the reference application is presented to the Court. However, question of framing issue and leading evidence in that regard does not arise in case of the reference application. It should not be construed that I am arriving at the conclusion that the point of limitation is purely a question of law in each and every case. It is not so. On the contrary, the point of limitation is a mixed question of law and facts. However, in case of reference under Section 18, the method of establishing the application to be within the prescribed period of time is not by leading any evidence as such unless there are disputable questions of facts in relation to the date of service of the Notice under Section 12 (2 ). Once it is not disputed that the claimant was served with the notice under Section 12 (2) and it is also not disputed that it was served on a particular date, and those facts are revealed from the application under Section 18 itself, there can be no question of any further evidence being led in the matter nor there can be occasion for framing any issue as such on this aspect. Once the claimants themselves admit certain date to be the day on which the Notice under Section 12 (2) was served and the application under Section 18 itself discloses to have been filed beyond the period of six weeks from the said date, there cannot be any occasion for leading evidence on any issue as such since there could be no controversy for the purpose of framing of issue on the point of limitation. Once the clamant admits that the Notice under Section 12 (2) was served on a particular day and the application under Section 18 was filed on a particular day, and the period in between those two dates exceeds the period of limitation prescribed under section 18 (2) for the purpose of filing such application, there could not remain any scope for framing of issue regarding the bar of limitation. Issues can be framed only when there is a controversy on a point which is required to be decided. Once the facts are not disputed and based on undisputed facts the matter can be decided, there can be no scope for framing of any issue. Therefore, when the application under section 18 apparently discloses the date of service of the Notice under Section 12 (2) and the filing of the application is apparently revealed to be after the period of six weeks therefrom, the reference is to be held to have been filed after the period of limitation and therefore being bad in law and not maintainable. ( 31 ) AS regards the opportunity to deal with the matter at the appellate stage on this aspect and the prejudice which is sought to be claimed on account of absence of issue or failure to raise objection by the State before the reference Court, the Apex Court in Bhagwati Prasad v. Chandramaul, reported in AIR 1966 SC 735 , has held that when the parties knew that a particular plea is involved in the matter, mere fact that the plea was not expressly taken in the pleadings would not disentitle a party from relying upon it if it is satisfactorily proved by the materials on record. In relation to the point of limitation for the purpose of filing of the application, as already seen above, it is always to the knowledge of the claimant that such application has to be filed within the prescribed period and it is primarily for the claimants to establish that the application is within such time. Therefore it is to the knowledge of the claimants that they are required to be establish this fact and merely the plea in that regard is not raised by the State before the reference Court, that would not be a ground to refuse the appellant to allow to raise such an issue in the appeal. Therefore it is to the knowledge of the claimants that they are required to be establish this fact and merely the plea in that regard is not raised by the State before the reference Court, that would not be a ground to refuse the appellant to allow to raise such an issue in the appeal. ( 32 ) AT this stage, it is also necessary to take note of the decision of the Apex Court in Mohd. Hasnuddin v. State of Maharashtra, reported in (1979) 2 SCC 572 and is to be read with the decision of the Apex Court in shah Manilal Chandulals case. The Apex Court in Shah manilal Chandulals case, referring to Mohd. Hasnuddins case (supra), had held thus"8. The right to make application is writing is provided under section 18 (1 ). The proviso to sub-section (2) prescribes the limitation within which the said right would be exercised by the claimant or dissatisfied owner. In mohd. Hasnuddin vs. State of maharashtra, (1979) 2 SCC 572 , this court was called upon to decide in a reference under section 18 made by the collector to the court beyond the period of limitation, whether the court can go behind the reference and determine the compensation, though the application for reference under section 18 was barred by limitation? This Court had held that the Collector is required under section 18 to make a reference on the fulfilment of certain conditions, namely, (i) written application by interested person who has not accepted the award; (ii) nature of the objections taken for not accepting the award; and (iii) time within which the application shall be made. In para 22 after elaborating those conditions as conditions precedent to be fulfilled, it held that the power to make a reference under section 18 is circumscribed by the conditions laid down therein and one such condition 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 limitation 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. If the application is not made within time, the collector will not have the power to make reference. In order to determine the limitation 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. If the reference is not proper there is no jurisdiction in the court to hear the reference. It was, therefore, held that it is the duty of the court to see that the 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. Therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference. If the reference is beyond the prescribed period by the proviso to sub-section (2) of section 18 of the Act and if it finds that it was not so made, the court would decline to answer the reference. Accordingly, it was held that since the reference was made beyond the limitation, the court was justified in refusing to answer the reference. " (emphasis supplied) ( 33 ) THE Apex Court in Shah Manilal Chandulals case further proceeded to rule that"9. It would thus be clear that one of the conditions precedent to make a valid reference to the court is that the application under section 18 (1) shall be in writing and made within six weeks from the date of the award when the applicant was present either in person or through counsel at the time of making of the award by the Collector under clause (a) of proviso to sub-section (2 ). The Collector, when he makes the reference, acts as a statutory authority. The Collector, when he makes the reference, acts as a statutory authority. " ( 34 ) HOWEVER , referring to the decision in Qaisar Jehan begums case, it is sought to be argued on behalf of the claimants that the said decision is of Three Judge Bench whereas the decision in Shah Manilal Chandulals case is of Two Judge Bench and the law being that if the two decisions are in conflict with each other, one of the bench of the larger number of Judges would be binding. It would be necessary to consider what was the law that was laid down by the Apex Court in Qaisar Jehan Begums case. ( 35 ) IN Qaisar Jehan Begums case, consequent to the acquisition of land after the payment of compensation on 22-7-1955 and 30-9-1955, the claimants filed application for reference under Section 18 contending that they came to know about the award on 12-7-1955 when they had received the compensation amount and therefore the application was within time. Accordingly, the reference was made to the civil Court wherein the Civil Judge to whom the matter was referred under the provisions of the said Act arrived at the conclusion that the application made to the Collector was barred by time because the award was made on 25-10-1953 whereas the application for reference was filed on 30-9-1955. The reference Court expressed some doubt as to whether the claimants were entitled to count the period of limitation from the date of knowledge but held that even if they were entitled to do so, their date of knowledge must be taken to be 24-12-1954 i. e. the day on which they had filed the application for interim payment and the application for reference having been made more than six months from the said date of knowledge, the application was barred by the law of limitation. In the set of those facts, while dealing with the question as to whether the application filed on 30-9-1955 was within the period of limitation as prescribed under the proviso to Section 18 (2) of the said Act, it was held that"clause (a) of the Proviso clearly not applicable in the present case, because admittedly the respondents were neither present nor were represented before the collector when the latter made his award. The first part of cl. The first part of cl. (b) is also not applicable, because the respondents did not receive any notice from the Collector under sub-sec. (2) of s. 12 of the Act. The sub-section requires the Collector to give immediate notice of his award to suck of the persons interested as are not present personally or by their representatives when the award is made. Clearly enough, the respondents herein were entitled to a notice under sub-sec. (2) of S. 12 admittedly no notice was issued to them. "apparently the facts of the case disclose that it was not a case where Notice under Section 12 (2) was served. On the contrary, it was in relation to the second part of Clause (b) of the proviso to Section 18 (2) i. e. within six months from the date of the Collectors award. ( 36 ) DEALING with the second part of Clause (b) of the proviso to Section 18 (2), the Apex Court in Qaisar Jehan begum's case held thus"as to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in harish Chandra's case, 1962-1 SCR 676: ( AIR 1961 SC 1500 ) (supra ). It was there observed that a literal and mechanical construction of the words "six months from the date of Collector's award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "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 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. Admittedly, the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively?"obviously, the entire decision is on the point of the date of knowledge of the award in cases where no Notice under Section 12 (2) of the said Act was served. Admittedly, the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively?"obviously, the entire decision is on the point of the date of knowledge of the award in cases where no Notice under Section 12 (2) of the said Act was served. ( 37 ) IT is, therefore, apparent that the decision in shah Manilal Chandulal's case was with reference to the first part of Clause (b) whereas the decisions in Qaisar jehan Begum as well as in Raja Harish Chandra Raj singh's case were in relation to the second part of clause (b) of Section 18 (2) of the said Act. The judgment of the Apex Court in Shah Manilal Chandulal's case is not in conflict in any manner with the decision in Qaisar Jehan Begum's case and/or in Raja Harish chandra Raj Singh's case. ( 38 ) THE Apex Court in Union of India and others v. Dhanwanti Devi and others, reported in (1996) 6 SCC 44 , has laid down the law as to how to understand the ratio of a decision in a matter. It has been ruled that "it is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. " It was held that"a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. "it was also held therein that:"no judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents. " ( 39 ) BEARING in mind the law relating to the precedent and the ratio decidendi and there being no conflict of any nature in the decisions delivered by the Apex Court, when one compares the decision in Shah Manilal chandulal's case with the decisions in Qaisar Jehan begum's case and/or Raja Harish Chandra Raj Singh's case, it is at once apparent that the decision in Shah manilal Chandulal's case is exclusively on the point of the first part of Clause (b) whereas the other two decisions are on the later part of Clause (b ). The rulings in relation to para two cannot be applied to the case governed by the first part of Clause (b ). Being so, there is no substance in the contention on behalf of the claimants that at the relevant time the law on the point was different from the one declared by the Apex court in Shah Manilal Chandulal's case. In fact, in shah Manilal Chandulal's case the Apex Court merely clarified what the law had been in relation to the provisions comprised under Section 18 and what are the powers of the Collector thereunder. ( 40 ) IT is true that the Apex Court in Banarsi Das (supra) as well as in Darshan Singh's case has ruled that the plea of limitation being a mixed question of facts and law, it should be properly raised by the parties to the suit. ( 40 ) IT is true that the Apex Court in Banarsi Das (supra) as well as in Darshan Singh's case has ruled that the plea of limitation being a mixed question of facts and law, it should be properly raised by the parties to the suit. In Banarsi Das's case, it was held that plea of limitation which was sought to be raised therein was not a pure question of law but a mixed question of law and facts and therefore could not be allowed to be raised for the first time at the stage of arguments in the Second Appeal in the High Court especially when it was raised by the non-contesting defendant who had not filed the written statement in the suit. ( 41 ) IN Darshan Singh's case, the Apex Court had held that in the absence of issue being framed inspite of plea of limitation having been raised, a different course was available to be adopted by the party which was not adopted and further that there was no plea raised regarding the question of limitation in the second Appeal preferred before the High Court. Therefore, such a plea could not be allowed to be raised in a proceeding arising out of the order passed under section 152 of the Code of Civil Procedure in respect of the decree which has attained finality. 21st October, 2005 ( 42 ) AS already seen above, in terms of Section 53, the provisions of the C. P. C. are applicable to the proceedings before the reference Court under the Land acquisition Act to the extent they are not inconsistent with the said Act. In case of proceedings under Section 18, it is well-settled law that the burden of proving the claim for enhancement or in relation to any of the objections sought to be raised under the said Section lies entirely upon the claimant and any weakness on the part of the State cannot enure to the benefit of the claimants. In case of proceedings under Section 18, it is well-settled law that the burden of proving the claim for enhancement or in relation to any of the objections sought to be raised under the said Section lies entirely upon the claimant and any weakness on the part of the State cannot enure to the benefit of the claimants. This is the law laid down by the Apex Court, more particularly bearing in mind that in these proceedings when enhancement of compensation is granted, if it is granted without proper application of mind and without proper evidence in support of the claim of the claimants, then it can result in unnecessary burden on the public exchequer as a result of which the tax-payers' money would be misutilised. Considering the same, the provisions relating to the rules of pleadings under Orders 6, 7 and 8 of the C. P. C. cannot apply in strict sense to the proceedings before the reference court. Once it is held that failure on the part of the state to put effective defence or lapse on the part of the Government Advocate to effectively cross-examine the claimant and his witness cannot be a justification for grant of enhancement of compensation unless the Court is satisfied on proper analysis of the materials on record that the claim of the claimant has been properly established, it would be evident that the rules of pleadings cannot apply to the proceedings before the reference Court arising under Section 18 of the said Act in view of the provisions of law comprised under Section 53 of the said Act. Indeed, in cases where either on account of failure on the part of the State or its officers including the Advocate appearing for the State, unwarranted burden is sought to be imposed on the public exchequer, the Court cannot act as a silent spectator in such proceedings. In those cases, it would be the duty of the Court to be alert to ensure that on account of unscrupulous elements in the Government machinery or on account of lethargy on the part of the Government machinery, unnecessary burden is not imposed upon the public exchequer. A false sympathy for the persons who are divested of their land cannot be allowed to over-shadow the obligation and duties of the Court in that regard. A false sympathy for the persons who are divested of their land cannot be allowed to over-shadow the obligation and duties of the Court in that regard. The Apex Court in P. Ram Reddy and others v. Land Acquisition Officer, Hyderabad, Urban development Authority, Hyderabad and others, reported in 1995 (2) SCC 305 had held that"we are unable to think that whenever the statements made by claimants' witnesses in courts are not got over on behalf of the Collector or the LAO by subjecting the witnesses to effective cross-examination or by not adducing evidence in rebuttal, the courts are obligated to accept such statements of witnesses as true, if tested on the basis of probabilities, become unreliable. If the courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross-examination or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands. If such situation is prevented by courts dealing with claims for compensation by testing the statements of witnesses for claimants on the basis of probabilities, the courts will have performed the duty justly expected of them. "while making the above observations, the Apex Court has reiterated its earlier decision in Chaturbhuj Pande v. Collector, reported in AIR 1969 SC 255 wherein it was held that"it is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The judges are not computers. . . . they are bound to call into aid their experience of life and test the evidence on the basis of probabilities. "similarly, in Neyvely Lignite Corpn. Ltd. , M/s. v. Special Tahsildar (Land Acquisition), Neyvely, reported in AIR 1995 SC 1004 , while dealing with the issue regarding the necessity of joining the local authority as party to the proceedings, the Apex Court had observed that"it is notorious that though the stakes involved are heavy, the Govt. pleader or the instructing officer do not generally adduce, much less proper and relevant, evidence to rebut the claims for higher compensation. Even the cross-examination will be formal, haulting and ineffective. pleader or the instructing officer do not generally adduce, much less proper and relevant, evidence to rebut the claims for higher compensation. Even the cross-examination will be formal, haulting and ineffective. Generally, if not invariably the Government agencies involved in the process take their own time and many a time in collusion, file the appeals after abnormal or inordinate delay. They remain insensitive even if the stakes involved run into several crores of public money. The Courts insist upon proper explanation of every day's delay. In this attitudinal situation it would be difficult to meet strict standards to fill unbridgeable gaps of the delay in filing the appeals and generally entail with dismissal of the appeals at the threshold without adverting to the merits in the hike in the compensation. On other hand if the notice is issued to the local authority etc. it/they would participate in the award proceedings under Sections 11 and 18 adduce necessary and relevant evidence and be heard before the collector and the Court before determining compensation. "apparently, the Apex Court taking judicial note of the falling standard of efficiency and failure to put forth effective defence by the State had observed in Neyvely lignite's (supra) the necessity of joining the beneficiaries of the acquisition as the parties to the proceedings while in two earlier cases had highlighted the need for the Court being alert and not a silent spectator to such proceedings and further to perform its own obligation to ensure proper application of the statutory provisions applicable to such proceedings before the Court. ( 43 ) AS regards the decisions in Banarsi Das and Darshan singh's case, it is to be noted that both these decisions are in suits to which the provisions of the c. P. C. apply and they are not in cases under the Land acquisition Act. In Banarsi Das's case, it was a suit for dissolution of partition and rendition of account whereas in Darshan Singh's case the proceedings had arisen out of corrections made in the decree by the civil Court in exercise of powers under Section 152 of the C. P. C. . In Banarsi Das's case, it was a suit for dissolution of partition and rendition of account whereas in Darshan Singh's case the proceedings had arisen out of corrections made in the decree by the civil Court in exercise of powers under Section 152 of the C. P. C. . While in Banarsi Das's plea of limitation was sought to be raised in the course of arguments in second Appeal without laying the necessary factual foundation by necessary plea in the pleadings and the evidence in support thereto whereas in Darshan Singh's case the plea of limitation was never raised till the decree was confirmed in the Second Appeal and the contention regarding bar of limitation was sought to be raised only after the arithmetical corrections were made in the final decree in exercise of powers under Section 152 of the C. P. C. and that too, after the disposal of the Second Appeal. Since the rules of pleadings were strictly applicable in both the cases, there was no question of allowing the plea of limitation to be raised for the first time at the stage of Second Appeal or after the disposal of the Second Appeal and in that context the observations were made by the Apex Court. The Apex Court in Collector of Central Excise, Calcutta v. Alnoori Tobacco Products and another, reported in (2004) 6 SCC 186 has clearly ruled that"courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. "bearing in mind the law in relation to the ratio decidendi and the precedent, and the manner in which the rulings are to be understood and applied, the decisions in Banarsi Das and Darshan Singh's case are of no help to deal with the point of limitation relating to the proceedings under Section 18 of the said Act. In such proceedings, irrespective of whether such an objection is raised by the State or not, it is the duty of the court to ascertain the same. In such proceedings, irrespective of whether such an objection is raised by the State or not, it is the duty of the court to ascertain the same. In the absence of reference being made within the period of limitation, the Court cannot get jurisdiction to entertain the proceedings. In case the reference Court fails to perform its obligation, certainly the Appellate Court, which stands in the shoes of the original Court in view of the provisions under Section 107 of the C. P. C. , is not divested from the said obligation and in that case it will be the duty of the Appellate Court to consider the said aspect and to ascertain whether the entire exercise by the reference Court was within its jurisdiction irrespective of the fact whether the objection in that regard is raised by the State in its appeal or not. ( 44 ) IT is always to be borne in mind that whenever under a particular statute jurisdiction is bestowed upon a particular Court to deal with the matter which arises under such statute and the statute provides for certain eventualities for exercise of the jurisdiction by such a court, unless those eventualities occur and/or exist, such Court cannot assume jurisdiction to deal with the matters arising under that statute. It all relates to the existence of jurisdictional facts in order to enable the Court to assume jurisdiction in relation to the matters arising under such statute. ( 45 ) THE Apex Court in Shrisht Dhawan (Smt.) v. M/s shaw Brothers, reported in (1992) 1 SCC 534 , while dealing with the concept of an error in respect of jurisdictional fact had held that"a jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black's Legal Dictionary it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does no confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does no confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad. "further, reiterating its earlier decision in raza Textiles Ltd. v. ITO { air 1973 SC 1362 }, it was held that a Court or tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly. It was also held therein that"error in assumption of jurisdiction should not be confused with mistake, legal or factual in exercise of jurisdiction. In the former the order is void whereas in the latter it is final unless set aside by higher or competent court or authority. An order which is void can be challenged at any time in any proceeding. " ( 46 ) IN Chiranjilal Shrilal Goenka (deceased) through lrs. v. Jasjit Singh and others, reported in (1993) 2 scc 507 , while reiterating the law laid down by the Apex court in the earlier decisions to the effect that the decree passed by a Court without jurisdiction on the subject-matter is a coram non judice, it was held that "the defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. " referring to its earlier decision in Bahadur Singh v. Muni Subrat Dass { (1969) 2 SCR 432}, it was observed that in the said petition, the dispute under the Rent control Act, on the grounds of nuisance, was referred to arbitration and the award was made directing the tenant to run the workshop upto a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The award was signed by the arbitrators, the tenant and the landlord and it was filed in the Court. A judgment and decree were passed in terms of the award. The award was signed by the arbitrators, the tenant and the landlord and it was filed in the Court. A judgment and decree were passed in terms of the award. On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, the decree was sought to be executed under the Delhi and Ajmer Rent Control Act and it was held that a decree passed in contravention of the Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree. Same view was reiterated in Kaushalya Devi (Smt.) v. K. L. Bansal { air 1970 SC 838 } wherein a compromise dehors the grounds for eviction was arrived at between the parties under section 13 of the Delhi and Ajmer Rent Control Act and the decree was accordingly passed. The possession, however, was not delivered and execution proceedings were initiated. It was held that the decree was nullity and, therefore, the tenant could not be evicted. While in the former case, the eviction decree was obtained from an authority which is not contemplated to entertain the proceedings for eviction of a tenant whereas in the latter case though the proceedings for eviction were before the competent authority under the Act, it was without existence of jurisdictional fact to pass the decree in the nature it was passed. The facts of the case in hand are squarely in line with the facts in the latter case i. e. in Kaushalya Devi (supra ). In the case in hand, in the absence of jurisdictional fact i. e. a valid reference to the reference Court under Section 18 which the Court had no jurisdiction to entertain and deal with the matter and having dealt with, the order passed therein is bad ab initio. It lacked jurisdiction as the reference was filed beyond the period of limitation. If the said fact is brought to the notice of this Court, it would be the duty of this Court to consider the same and decide the matter accordingly and more particularly when the Apex Court has clearly laid down the law on this point in Shah Manilal Chandulal's case as well as the Full Bench decision by this Court referred to above. ( 47 ) ONCE the Apex Court in Shah Manilal Chandulal's case has clearly ruled that Section 3 of the Limitation act casts a duty on the court to apply the prescribed limitation and irrespective of the fact that defence of limitation was not taken, the court is enjoined to ensure that no suit etc. is laid beyond the prescribed limitation unless the exceptions for extension of time as found in sections 4 to 24 (both inclusive) are attracted and further that if the application is not made within time, the Collector will not have power to make reference and consequently if such a reference is made, which is filed beyond limitation, the Court will have to refuse to answer the reference. In view of the decision in Mohd. Hasnuddin's case, it would not be open for this Court to take a different view even though the appellants were not to raise this issue in the course of the arguments, leave aside the absence of the ground in that regard in the memo of the appeal. Once it is revealed to this Court from the records placed before us, any other view would virtually result in refusal to follow the law laid down by the Apex Court, which is not permissible. In C. N. Rudramurthy v. K. Barkathulla Khan and others, reported in (1998) 8 SCC 275 , while highlighting the obligation of the High Court to follow the law laid down by the Apex Court on the subject in respect of which the High Court may deal with the matters, it was held thus"in D. C. Bhatia case { (1995) 1 SCC 104 } this Court was concerned with a provision under the Delhi Rent Control act and Section 3 (c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In shobha Surendar case {ca No. 13754 of 1996, decided on November 1, 1996} the high Court had proceeded to rely upon padmanabha Rao case {ilr 1986 Kant 2480}, when the matter was brought to this Court though no specific reference was made to Padmanabha Rao case this court stated that the law laid down in d. C. Bhatia case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya case { (1986) 3 scc 385 }. Indeed it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all courts within the territory of India. This mandate of article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If this is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D. C. Bhatia case. The clear pronouncement made by this Court in Shobha Surendar case was that D. C. Bhatia case was applicable with reference to Section 31 of the Karnataka rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the padmanabha Rao case. In effect, padmanabha Rao case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. " ( 48 ) IN Suganthi Suresh Kumar v. Jagdeeshan, reported in AIR 2002 SC 681 , it was held by the Apex Court that"it is impermissible for the High Court to overrule the decision of the Apex court on the ground that the Supreme court laid down the legal position without considering any other point. " ( 48 ) IN Suganthi Suresh Kumar v. Jagdeeshan, reported in AIR 2002 SC 681 , it was held by the Apex Court that"it is impermissible for the High Court to overrule the decision of the Apex court on the ground that the Supreme court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the constitution as provided in Art. 141 that the law declared by the supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil kumar Neotia v. Union of India, AIR 1988 SC 1353 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court. " ( 49 ) ONCE the law being clearly declared as it stands and the law being that application under Section 18 has to be filed within the period of limitation prescribed thereunder and in case any such application is filed beyond the period prescribed thereunder, the Court dealing with the matter will not get jurisdiction to consider the claim of the claimant, neither the consent or failure or acquiescence or waiver on the part of the party/parties to the proceedings would bestow jurisdiction upon the reference Court to deal with the matter. So also, it would not be permissible for the court to read in Section 18 or any other Section in the said Act any power to the reference Court either to condone the delay or to entertain such an application merely on the ground of failure on the part of the authorities to raise the point of limitation or by way of waiver or acquisition or by way of consent. Any such reading down would virtually amount to legislating upon the statutory provisions, and that too, contrary to the law laid down by the Apex Court. It should not be forgotten that it is not the duty of the Court either to enlarge the scope of the legislation when the language of the provisions of law is very clear and there is a clear pronouncement in that regard by the Apex Court. It should not be forgotten that it is not the duty of the Court either to enlarge the scope of the legislation when the language of the provisions of law is very clear and there is a clear pronouncement in that regard by the Apex Court. In Union of India and another v. Deoki Nandan Aggarwal, reported in AIR 1992 SC 96 , it was held by the Apex court that"it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. "once the Apex Court in clear terms has laid down the parameters for the exercise of powers by the authority called the Collector or the Land Acquisition Officer as well as by the reference Court under the said Act, it would be impermissible for this Court to rule contrary to the said ruling of the Apex Court. ( 50 ) SHRI Joshi, learned Advocate had also submitted that in the absence of proper confrontation on the point of limitation on behalf of the State, there was no fair opportunity to the claimant to place the claimants' case on the point of limitation before the reference Court. Considering the fact that the law on the point of limitation in relation to the application for reference under Section 18 was well clarified in Mohd. Considering the fact that the law on the point of limitation in relation to the application for reference under Section 18 was well clarified in Mohd. Hasnuddin's case in the year 1979, much prior to the filing of the reference application, and further reiterated in Shah Manilal Chandulal's case in 1995, contention about absence of opportunity to the claimants to put forth his/her/their case in relation to the point of limitation is to be held as totally devoid of substance. As already observed above, it is primarily for the claimants to establish the fact that the application was within time and therefore absence of confrontation on that aspect by the State cannot give a justification to contend that there was no fair opportunity to the claimants to meet their case. The claimants cannot try to reap the benefits of the lapse or failure on their part to discharge their own obligation as regards the responsibility to make out a case of a valid reference in order to enable the reference Court to get the jurisdiction to entertain the reference application. Once it is the obligation of the claimants to establish the basic fact that the reference application was filed within the period of limitation, failure on the part of the State machinery to raise objection to such reference cannot enure to the benefit of the claimants to contend that they had no opportunity to put forth their case on the point of limitation raised at the appellate stage. A person expecting fair play has also to be fair to the opposite side. Once it was the duty of the claimants to disclose the date of the service of the Notice under Section 12 (2) and to make out a case that the application was filed within the period of limitation prescribed under Section 18, no amount of failure, either intentional or unintentional, on the part of the State machinery can enure to the benefit of the claimants and at whatever stage this point is brought to the notice of the Court, it will be the duty of the Court to look into the matter and to decide the matter according to law applicable to the facts of the case and the law laid down by the Apex court. ( 51 ) IN the case in hand, the claimants in their application for reference, in para 24 thereof, had stated that he had received the Notice under Section 12 (2) of the Land Acquisition Act on or about 31-3-1986. The reference application was filed on 5-6-1986. Both these dates are apparent from the application for reference filed by the claimants and this fact is not disputed before us. It is to be noted that we are not dealing with a case where there is any doubt or dispute or uncertainty about the date of declaration of award or the date of service of Notice under Section 12 (2) or the date of filing of the application under Section 18 of the said Act. All these dates are not in dispute. Being so, once it was apparent from the application for reference filed under Section 18 that the same was filed beyond the period of six weeks from the admitted date of service of the Notice under Section 12 (2), there was no question of framing any issue as such as the fact that the application was filed beyond the period of limitation was not in dispute. It is to be borne in mind that, as already held by the Apex Court, there is no scope for condonation of delay in filing such application. Being so, there was no scope for any controversy as such which is required to be adjudicated upon by the reference Court and for the same reason, there was no scope for framing an issue as such on the point of bar of limitation. Certainly therefore, based on the records available before us, the matter of limitation can be decided without even remanding the matter. ( 52 ) QUESTION of invoking the power under Order 41, Rule 25 also does not arise at all. As already seen above, the occasion to frame the issue in exercise of the power under Order 41, Rule 25 can arise only when the Court below has omitted to frame or try the issue which arises for consideration and not otherwise. In the case in hand, there was no occasion for the reference Court to frame such an issue as the record was so crystal clear that the application ought to have been rejected in limine having filed beyond the period of limitation. In the case in hand, there was no occasion for the reference Court to frame such an issue as the record was so crystal clear that the application ought to have been rejected in limine having filed beyond the period of limitation. ( 53 ) THE contention about the non-filing of the affidavit by the State is also totally devoid of substance. Once the records are very clear and undisputed on the material aspect of the case which is sufficient to decide the point sought to be raised, question of necessity of filing the affidavit does not arise at all. ( 54 ) FOR the reasons stated above, therefore, the issue as to whether the State is entitled to raise the point of bar of limitation for reference application at the appellate stage without such point being raised before the reference Court and without amending the memo of the appeal does not arise at all. In fact, the said issue takes the rear seat in view of the obligation of the court to consider the point of limitation, more particularly in view of the law laid down by the Apex court. The issue of bar of limitation for filing the reference application has to be decided solely on the basis of the contents of the application once it is admitted that the claimants had received the Notice under Section 12 (2) much prior to the period of six weeks preceding the date of filing of the application for reference. As regards the date for the purpose of commencement of the limitation for filing of the reference application, the issue already stands concluded as the same is set at rest by the decisions delivered by the Apex Court in Mohd. Hasnuddin as well as in Shah Manilal Chandulal's case. As regards the fact of reference which has already been decided without any issue of limitation being raised, before the disposal of the reference application, merely because the reference Court proceeds to decide the matter without jurisdiction, no sanctity can be attached to such proceedings and the entire proceedings are to be held as having been conducted without jurisdiction and therefore the order passed therein to be bad in law. As regards the provisions of law regarding the period of limitation at the time the reference was made in the case in hand, as already observed, the two decisions of the Apex Court, namely in Mohd. Hasnuddin's case which was delivered in 1979 and reiterated by the Apex Court in Shah Manilal Chandulal's case clearly disclose that the law was not different from the one which is there even today. ( 55 ) CONTENTION was raised that it is also necessary to ascertain whether there was proper compliance of Section 45 in relation to the service of Notice. It is nobody's case in the case in hand that there was any defect in the service of Notice. Unless in the application for reference the claimant had disclosed that there was defect in the service of the Notice and on that count the Notice could not have been held as served on the day on which it was served, the question of assuming that there was some defect in the service of the Notice cannot arise. The reference to Section 45 to justify the remand on this ground is totally devoid of substance. ( 56 ) IN fact, the points sought to be raised in this appeal are substantially covered by the decisions already delivered in various other appeals including those in First Appeal No. 710 of 1989 and First Appeal no. 1063 of 1989 delivered on 22-9-2005. ( 57 ) FOR the reasons stated above, therefore, in my considered opinion, the reference Court could not have entertained the matter and the State is justified in raising this point and therefore it is to be held that the reference was beyond time and hence ab initio bad in law and for the same reason the impugned award is also bad in law and needs to be quashed and set aside. ( 58 ) I respectfully and humbly disagree with the finding recorded by my learned brother on the preliminary objection raised by the State for the first time during the oral arguments advanced across the bar. ( 58 ) I respectfully and humbly disagree with the finding recorded by my learned brother on the preliminary objection raised by the State for the first time during the oral arguments advanced across the bar. The question is as to whether a preliminary objection on the point of limitation can be raised by the State in the first Appeal which is filed by the State particularly when this point is not raised by the Collector while making an application under section 18 to the Reference court nor the Reference Court has examined it and has proceeded to decide the case on merits nor this ground was raised in the Memo of Appeal which was filed by the state in the year 1996 and this preliminary objection is sought to be raised for the first time during the course of arguments. In my view, State cannot raise this objection during the course of arguments and, therefore, in my view, the State shall not be permitted to raise this issue of limitation during the course of arguments on the preliminary objection particularly when the First appeal was filed in the year 1996 and has remained pending for almost 9 years and no attempt had been made either to amend the Appeal Memo or to make an application for amendment of the Appeal Memo. In my view, 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 averment in the claim applications which are on record, an inference cannot be drawn without giving a reasonable opportunity to the claimants particularly when the question of limitation is a mixed question of fact and law. It is under these circumstances, it would be necessary to very briefly state the facts of this case though, I must state here that, my learned brother has elaborately stated the facts and the submissions which are made by both, the learned Additional Government Pleader appearing on behalf of the State and the learned Counsel appearing on behalf of the respondents. However, since I wish to differ with the view taken by my learned brother on this aspect of the case, I deem it necessary and proper to briefly summarise the facts which are relevant for the purpose of deciding this particular point. ( 59 ) A group of 142 First Appeals of which the present appeal is the first matter of that group was placed on the final hearing board of this Court by Order dated 29/9/2005. The learned Counsel appearing on behalf of the claimants submitted that they would like to find out whether any amicable solution can be found out in respect of the present group of matters as the Division bench consisting of Mr. Justice H. L. Gokhale and Smt justice Roshan Dalvi had referred certain group of matters under the Land Acquisition Act before the Lok adalat and, therefore, the following order was passed by us on 29/9/2005. "in all these appeals, the learned advocates appearing for the claimants submitted that in order to find out an amicable solution as regards the compensation to be paid, they would make necessary representation to the government and try to get the matter settled as early as possible and for that reason, prays for time in the matter. The learned Advocate appearing for the government also submitted that he will take necessary instructions in the matter as regards the settlement from government. In order to enable the parties to explore possibility of settlement in all the above matters, the matters are adjourned to 7th October, 2005. To be listed for direction. "the matter, thereafter, appeared on Board on 7th october, 2005 for directions and the following order was passed by us on that date:"1. The learned Advocates for the claimants state that they have already submitted their proposal to the government, which is being looked into. The Government Advocate also confirms the same and for that reason, time to ascertain whether there could be amicable settlement in relation to the compensation payable to the claimants is extended and the matters are directed to be listed on board on 20th October, 2005 either for filing of consent terms or for final hearing, in case there is no possibility of settlement. 2. S. O. 20th October, 2005. 2. S. O. 20th October, 2005. " ( 60 ) ON 20/10/2005, Shri Kadam learned Advocate General submitted before us that it was not possible to have an amicable settlement in the matter and in view of the statement made by the learned Advocate General, we proceeded to hear this appeal which was the first out of the group of 142 appeals. ( 61 ) IT appears that Shri Tated, the learned Additional government Pleader had already prepared a compilation in respect of the dates in all these first appeals and the same was supplied to the respondents' Counsel. It is no [71] doubt true that in this compilation, column 13 speaks about the limitation and it reads as under:- "13) Limitation From Sec 12 (2) To Sec 18:- 107 Days. " a similar column has been mentioned in respect of the other First Appeals which are pending before this Court. During the course of arguments, on 20/10/2005, a preliminary objection was raised by the learned additional Government Pleader that the reference which was filed by the claimants before the Collector and which was referred to the Reference Court itself was barred by limitation as there was a delay of 107 days in filing the reference before the Collector by the claimants and, therefore, the Reference Court ought to have examined this fact on its own under section 3 of the Limitation Act and as mandated by the Supreme Court in the case of Mohammed Hasnuddin Vs. State of maharashtra reported in (1979) 2 SCC 572 and in the case of Officer on Special Duty (Land Acquisition) and another Vs. Shah Manilal Chandulal etc. , reported in 1996 (1) Mh. L. J. 609 609. It was, therefore, submitted that the Reference Court did not have the jurisdiction to entertain the claim of the claimants and, therefore, the said Judgment where the claim which was made by the claimants was enhanced by the Reference Court, was liable to be set aside on this point of limitation itself. Shri Tated, the learned AGP invited our attention to the claim application which was made by the claimants in the Reference Court and pointing out one of the paragraphs in the said claim application which was filed in the Reference Court, stated that the date of service of notice under section 12 (2) was stated by the claimants in the said paragraph. He further submitted that after the matter was referred by the Collector to the Reference Court, it was the duty of the Reference court to have examined the issue of limitation, though it was neither raised by the Government Pleader nor by the claimants. In support of the said submission, he relied on the judgement of the Supreme Court in the case of Shah Manilal Chandulal (supra) and in the case of state of Punjab and anr. Vs. Satinder Bir Singh reported in 330 (1995) 3 SCC 330 . He also relied upon the full Bench judgment of this Court in the case of Suresh marutrao Jadhav Vs. State of Maharashtra and Anr. reported in 897 2001 Vol. 103 (4) Bom. L. R. 897. He further submitted the law on this point, therefore, is quite well settled that, firstly, the Collector being a special authority under the Act had no power to condone the delay and, secondly, even if the application which was barred by limitation was presented before the reference Court, relying upon the judgment in the case of Mohammed Hasnuddin (supra), he submitted that the reference Court was duty bound to consider this aspect whether it had jurisdiction to entertain the reference or not. He submitted that though neither the Collector nor the Reference Court had considered this issue, this court, sitting in appeal over the award passed by the reference Court could substitute its own views to the views of the Collector and the Reference Court, though it was not raised before them. ( 62 ) THIS submission is seriously opposed by Shri P. B. Shah, the learned Counsel appearing on behalf of the respondents on various grounds which have been stated by my learned brother and, I, therefore, do not think it necessary to again reproduce the said submissions. Shri p. N. Joshi, the learned Counsel appearing in some of the other First Appeals in this group of appeals which is referred to as CIDCO group of matters also assisted this Court by making submissions which are again recorded by my learned brother in his judgment. Shri p. N. Joshi, the learned Counsel appearing in some of the other First Appeals in this group of appeals which is referred to as CIDCO group of matters also assisted this Court by making submissions which are again recorded by my learned brother in his judgment. The gist of the submissions was that such a preliminary objection should not be allowed to be raised for the first time during the course of the arguments and sufficient and reasonable opportunity should be given to the claimants particularly when this objection is raised after 9 years after the First Appeal was filed in this court and no attempt was made to amend the Appeal Memo and bring to the notice of the claimants the ground which was sought to be raised by the Government on the basis of the alleged admission which was made by the claimants in the claim which was filed in the Reference court. ( 63 ) IN order to appreciate the rival contentions which are raised by the parties and before recording the reasons, it would be relevant to very briefly consider the scheme under the Land Acquisition Act. Part - III of the Land Acquisition Act deals with the question regarding filing of reference. We are concerned here only in respect of the proceedings which could be initiated by the claimant, in the case of non-acceptance of the offer which is made by the Government which is in the form of an award which is passed by the Special Land acquisition Officer. If the claimant feels that the offer which is given by the SLAO is not proper, he has a substantive right to make an application requesting the slao to make reference to the District Court. Section 18 and 19 of the said Act have already been reproduced by my learned brother in his judgment and, therefore, I do not deem it necessary to again reproduce the same in my judgment. From the plain reading of section 18, it can be seen that it is the duty of the Collector to ensure, firstly, that any application which is made by the claimant for being referred to the Reference Court, is within time or not. From the plain reading of section 18, it can be seen that it is the duty of the Collector to ensure, firstly, that any application which is made by the claimant for being referred to the Reference Court, is within time or not. The order of the Collector on the point of limitation is final and the Supreme Court in the case of Shah Manilal Chandulal (Supra) has categorically held that neither the Collector nor the reference Court, nor the High Court in exercise of power under section 18 sub-clause (3) which was inserted by an amendment made by the Maharashtra State in respect of section 18, would be entitled to condone the delay. Section 19 enjoins upon the Collector to file a statement to the Reference Court if he is satisfied that it is within limitation and state the particulars in his application which are mentioned in section 19 and, thereafter, the Reference Court shall examine whether it has jurisdiction to entertain the claim or not. ( 64 ) SECTIONS 53 and 54 of the Land Acquisition Act lay down procedure which is required to be followed by the reference Court and by the High Court when appeal is filed against the order of the Reference Court. The provisions of sections 53 and 54 clearly lay down that the provisions of the CPC would be applicable and the reference Court, therefore, shall try and decide the reference as if it is an original suit which is instituted before it. ( 65 ) IN the present case, it is an admitted position that the Collector, when he referred the reference which was filed by the claimant before the Reference Court, proceeds on the footing that it is within limitation. It is further admitted that after the matter was referred to the Reference Court, the claimants thereafter filed claim applications in the Reference court, giving particulars of their claim. In their applications also, they have not admitted that there was any delay in filing the reference before the Collector. It is further admitted that after the matter was referred to the Reference Court, the claimants thereafter filed claim applications in the Reference court, giving particulars of their claim. In their applications also, they have not admitted that there was any delay in filing the reference before the Collector. It is further admitted that no Written Statement was filed by the Government and no objection was raised regarding the point of limitation and the matter was decided by the Additional Joint District Judge Shri R. C. Chavan (as he then was) and neither during the course of evidence which was led nor at the time of arguments, the question of limitation was ever raised. Be that as it may, the short point, therefore, which falls for consideration before us was : whether the Government can be permitted at the last stage i. e. at the time of oral arguments in First Appeal to raise this issue of limitation when no such ground is raised in the appeal memo? ( 66 ) THERE cannot be any dispute or two opinions regarding the ratio laid down by the Supreme Court in the cases of Shah Manilal Chandulal (supra), Satinder bir Singh (supra) and in the case of Suresh Marutrao jadhav (supra) decided by the Full Bench of this Court. The question, however, in the present case, is not whether the Collector had any power to condone the delay or not, as the Collector himself did not raise this issue and accepted the application for reference as within limitation. The question here is : whether this issue can be raised after nearly 19 years after the reference was filed in the Reference Court? It would be a strange anomaly that the claimants when they are allowed to exercise their right to ask for enhanced compensation by not accepting the offer made by the government in the form of an award can do so only in six weeks or six months as the case may be and the government is permitted to raise the question of limitation for the first time after a lapse of 19 years. The question is whether the State which is a welfare state can be permitted to raise this issue when it was not raised either intentionally or unintentionally by its own statutory authority and before the judicial authority after a lapse of 19 years. The question is whether the State which is a welfare state can be permitted to raise this issue when it was not raised either intentionally or unintentionally by its own statutory authority and before the judicial authority after a lapse of 19 years. The question is whether the learned AGP should or should not be permitted on the specious grounds of loss of public exchequer, on the presumption that the claimants are hand-in gloves with the State Officials and/or the government Pleader, to address us on this point. ( 67 ) IN my view, the learned AGP cannot be permitted to raise this preliminary objection, firstly, without even making an application for amendment of the Appeal Memo. It was very well within the knowledge of the Government when the appeal was filed in this Court in 1996 as to what was the law laid down by the Supreme Court in mohammed Hasnuddin's case (supra) and in the case of shah Manilal Chandulal (supra) and, in spite of having this knowledge, the Government chose not to take this ground in the Appeal Memo. Not only that, the government chose to keep quiet for a long period of 9 years and, atleast, since 16th August, 2005 till 20th october, 2005, when this group of appeals was placed on board, he could have made a simple application for amendment of Appeal Memo, stating therein that the reference which was filed by the Collector was barred by limitation on account of the alleged admission given by the claimants after the claim was filed in the Reference court in their claim application. The learned AGP, however, chose not to do any of these things. Even when the matter was called out and this point was raised and he was asked what was the explanation he had to offer for this lapse on the part of the Government, he candidly and most fairly admitted that he had no explanation to offer for this lapse on the part of the government. The learned AGP further had an opportunity to make an application for amendment of the Appeal Memo after he had tendered the compilation to the respondents' Counsel. However, even after tendering this compilation in respect of the group of 142 matters, no application was made. The learned AGP further had an opportunity to make an application for amendment of the Appeal Memo after he had tendered the compilation to the respondents' Counsel. However, even after tendering this compilation in respect of the group of 142 matters, no application was made. Even during the course of hearing, no leave was sought of this Court to tender a draft amendment for amendment of the Memo of Appeal or grounds of appeal. In my view, if the learned AGP is permitted to canvass this point when it was not canvassed or addressed by the Collector or by the reference Court, some reasonable opportunity ought to have been given to the claimants. ( 68 ) ORDER 41 Rule 2 in no uncertain terms states that the appellant when he prefers an appeal against the original decree should state the grounds on which the appeal has been preferred by him. It would be relevant to reproduce Order 41 Rule 2. ORDER XLI appeals FROM ORIGINAL DECREES rule 2. "2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground. "from the plain reading of the proviso, it is clear that it is the duty of the Court itself to give sufficient opportunity or contest the case on that ground. ( 69 ) IT is no doubt true that in 1976 substantial amendments were made to the Civil Procedure Code and in order to ensure t that there is no delay in disposing of the appeals, certain powers were given to the High Court when it exercises its jurisdiction under section 107 read with the provisions of Order 41. This essentially was made to ensure that the matters are not remanded as considerable time, energy and money is lost if the said exercise is undertaken. This essentially was made to ensure that the matters are not remanded as considerable time, energy and money is lost if the said exercise is undertaken. Keeping in view the said object, Order 41 Rule 33 sub-clause (2) clearly provided that the High Court in a given case could consider and decide certain issues which were not raised in the trial court and which could have been raised but were not raised or where the parties were conscious of the fact of the issues in question and yet they were not raised. In such cases, the High Court, while exercising its power under Order 41 Rule 33 could decide such issue. In the case of Bhagwati Prasad Vs. Chandramaul reported in 735 AIR 1966 SC 735 , the Supreme Court had an occasion to consider the power of the High Court and, in the said judgment, the Supreme Court in para 9 of its judgment has observed as under:-" (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 implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court in Sheodhari Rai V. Suraj prasad Singh, AIR 1954 SC 758 . In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings. "from the ratio of the said judgement, it is clear that before exercising the said power under Order 41, Rule 33, the Court has to ascertain whether the parties were aware or conscious of the said issue. ( 70 ) IN the present case, the Collector accepted the reference application of the claimants to be within time. He forwarded the application to the Reference court, stating therein that it is within time. The claimants also did not dispute the fact that it was not within limitation. The Government did not file Written statement and did not raise this issue of limitation and the matter was finally decided on merits. The government when it filed the appeal in the High Court did not raise the issue of limitation in the appeal memo. No application was made for amendment of the appeal memo. In the face of these admitted facts, the question is : whether the High Court can ignore the basic principle of natural justice and the rules of procedure which are laid down under the CPC and proceed to examine the issue as if it is an admitted issue. In my humble view such a course would not be open for the high Court in the facts of the present case under Order 41 Rule 33 of the CPC. ( 71 ) ORDINARILY, even if such an application for amendment had been made by the learned AGP and the same had been allowed by this Court and, thereafter, the point had been raised, the question would be that whether the point of limitation which is a mixed question of fact and law can be decided by making a reference to the statement made by the claimants in their claim application which was filed in the Reference court after the reference was referred by the Collector, without offering them an opportunity to prove, by leading evidence, that the reference was filed within a period of limitation? ( 72 ) SECTION 18 is practically a self-contained Code in reference to the question of limitation. Regarding the application which is to be filed under section 18, sub-clause 2 of section 18 contemplates two situations which are elaborated in clause (a) and clause (b) of section 18. Clause (a) contemplates a situation when the award is pronounced and the claimant is present at the time of pronouncement of the award. He may accept the compensation under protest but he has to file an objection within six weeks from the date of the collector's award. Clause (b) contemplates two different situations. Firstly, it states that the notice under section 12 (2), if it is served on the owner or the persons interested then from the date of service of the notice under section 12 (2) within six weeks thereafter the reference has to be filed. Later part of clause (b) which starts with the word "or" states that the claimant would have a right to file reference within six months from the date of knowledge of the award. So far as the last part is concerned, the Supreme Court had an occasion to consider the meaning of the term "the date of the Collector's award" in the case of Raja harish Chandra Raj Singh Vs. The Deputy Land acquisition Officer and another reported in AIR 1961 SC 1500 and the Supreme Court in the said case overruled the judgment of the Bombay High Court wherein the said provision was construed literally or mechanically to mean the actual date on which the award was signed. This view which was laid down by the three Judges' Bench of the Supreme Court was later on affirmed in subsequent judgment of the Supreme Court in the case of State of punjab Vs. Qaisar Jehan Begum reported in AIR 1963 SC page 1604 1604. Though we are not concerned with the ratio of the judgment laid down in the said case, as it pertains to the second part of sub-clause 2 (b) of section 18, yet the observations made by the Supreme court in the said judgment cannot be lost sight of. The supreme Court in para 7 of its judgment in the case of raja Harish Chandra Raj Singh Vs. Deputy Land acquisition Officer reported in AIR 1961 SC 1500 has observed as under:-"7. The supreme Court in para 7 of its judgment in the case of raja Harish Chandra Raj Singh Vs. Deputy Land acquisition Officer reported in AIR 1961 SC 1500 has observed as under:-"7. In this connection it is material to recall the fact that under S. 12 (2) it is obligatory on the Collector to give immediate notice of the award to the persons interested as are not present personally or by their representatives when the award is made. This requirement itself postulates the necessity of the communication of the award to the party concerned. The legislature recognised that the making of the award under S. 11 followed by its award into force. It thought that the communication of the award to the party concerned was also necessary and so by the use of the mandatory words an obligation is placed on the Collector to communicate the award immediately to the person concerned. It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression "from the date of the Collector's award" in the proviso to S. 18. It is because communication of the order is regarded by the Legislature as necessary that S. 12 (2) has imposed an obligation on the collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that the literal and mechanical construction of the said clause would be wholly in appropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under S. 12 (2) should directly tend to make ineffective the right of the party to make an application under S. 18 and this result could not possibly have been intended by the Legislature. " ( 73 ) SINCE we are concerned with the question regarding the date of service of the notice under section 12 (2), the manner and the mode of service of notice is laid down under section 45 of the Land Acquisition Act. The time from which the period of limitation of six weeks is to be calculated starts from the date on which the service is factually made on the owners, or claimants or the male members. The time from which the period of limitation of six weeks is to be calculated starts from the date on which the service is factually made on the owners, or claimants or the male members. This is a fact which has to be established. The primary duty of considering whether the application which is filed for reference before the collector is within limitation is on the Collector himself and the said order attains finality as it cannot be challenged before the Reference Court or in revision in the High Court under sub-clause (3) of the maharashtra Amendment, which was overruled in the case of Shah Manilal Chandulal (supra), holding that the primary responsibility being on the Collector, it is for him to come to the conclusion whether it is within limitation or not. Thereafter, a duty is cast on the reference Court as per the mandate laid down in Mohammed hasanuddin's case (supra) to examine whether it has jurisdiction to decide the reference or not. Obviously, if the Reference Court entertains any doubt regarding the question of limitation an issue has to be framed and an opportunity has to be given to both the parties to lead evidence on the point of limitation and, thereafter, a finding of fact has to be recorded. In the present case, however, this exercise was not done. Then the question would be if the amendment to the appeal memo is allowed and this question is allowed to be raised then, in that event, in my view, the matter would have to be remanded back to the Reference Court and issue, thereafter, would have to be framed and an opportunity would have to be given to both parties to lead evidence and only thereafter the issue can be decided. A similar view has been taken by Himachal pradesh High Court in the case of Jamita Ram and others vs. Collector of Kangra District reported in AIR 1982 himachal Pradesh page 53. In the said case the question which fell for consideration before the Court was whether the Court to whom a reference under section 18 of the Land Acquisition Act has been made can go behind the reference and decide whether the application has been made beyond the period of limitation. In the said case the question which fell for consideration before the Court was whether the Court to whom a reference under section 18 of the Land Acquisition Act has been made can go behind the reference and decide whether the application has been made beyond the period of limitation. While relying on Mohammed Hasnuddin's case (supra), it was held in the said case that though it was the duty of the reference Court to examine whether the reference is proper or not, a party could not be non-suited on the ground of limitation and before that an adequate opportunity should be granted to him. In para 13 of the said order, the learned Single Judge of the Himachal pradesh High Court has held as under:-"13. 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. "though this is a judgment delivered by the learned Chief justice (as he then was) sitting singly, of the Himachal pradesh High Court and is not binding on this Court, however, I fully endorse the view expressed by the learned Chief Justice. The facts of the present case which stare at us, demonstrate an utter lack of responsibility on the part of the statutory authority of the State Government having failed to raise this point. It did not even choose to file Written Statement before the Reference Court. The facts of the present case which stare at us, demonstrate an utter lack of responsibility on the part of the statutory authority of the State Government having failed to raise this point. It did not even choose to file Written Statement before the Reference Court. The callous attitude of the government is further reflected from the fact that though appeal was filed in the year 1996 when the judgments of the Supreme Court were very well within the knowledge of the Government, it chose not to raise this point. In view of these glaring facts, in my view, it would not be proper to jump a surprise on the claimants after a lapse of 20 years without giving them a semblance of opportunity and merely relying on stray statements in the application made by the claimants in the reference court to come to a conclusion on the basis of these stray statements that the reference was barred by limitation and then to further hold that the judgment of the Reference Court is without jurisdiction. In my humble view, it was open for the learned AGP to have made an application after he was confronted by this court and after he was asked to tender an explanation regarding the lapse on his part in raising this issue, atleast, at that point of time, it was his duty to have made an application. In the facts of this particular case, therefore, in my view, even if the amendment is allowed, it would be appropriate, fair and just that the matter should be remanded back to the Reference Court to decide the issue of limitation within a time bound frame, so that no delay is caused. ( 74 ) IF claim application which is filed by the claimants is seen, it is apparent that the same has been drafted by their advocate and presented through him though it is signed in Marathi by the claimant. The claim application, therefore, is not even affirmed by the claimant. ( 75 ) THE Supreme Court had an occasion to consider the powers of the High Court under Order 41, Rule 25 in the judgment in the case of P. Purushottam Reddy and another Vs. The claim application, therefore, is not even affirmed by the claimant. ( 75 ) THE Supreme Court had an occasion to consider the powers of the High Court under Order 41, Rule 25 in the judgment in the case of P. Purushottam Reddy and another Vs. Pratap Steels Ltd. , reported in (2002) 2 scc 686 and the Supreme Court, after examining the amendments which were made to the Code of Civil procedure in 1976 and particularly with reference to the powers of the High Court under Order 41, observed that, though, normally, the High Court should be slow in remanding the case to the Lower Court, it would be proper and just to remand the case if it comes to the conclusion that the order of the Reference Court is not a judgment in the eyes of law. The Supreme Court in para 10 of its judgment in the above case observed as under:-"10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In 1976 Rule 23-A has been inserted in order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra manilal Nanavati v. Sushila Mahendra nanavati [ air 1965 SC 364 : 66 Bom LR 681 ] (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. . . . . . . . . . . . . . . . " (Emphasis supplied) in the facts of the present case, if one were to come to the conclusion that the Reference Court had failed in its duty which was mandated by Mohammed Hasnuddin's case (supra), in my view, the parties cannot be made to suffer after a lapse of 19 to 20 years and on some stray statements in the Reference Application and that too where no application has been made by the claimants about there being any delay in filing the reference. If this Court were to come to the conclusion that the reference Court had no jurisdiction on the point of limitation, it would be fair and just to remand the present case so that this issue can be properly dealt with and decided by the Reference Court. ( 76 ) IT is no doubt true that in matters pertaining to public exchequer and while interpreting any taxing statute, strict interpretation has to be made because ultimately it is public money and public money cannot be allowed to be frittered away on account of negligence, callousness or otherwise of the State Officials, State authorities, Government Pleaders and the like. However, at the same time, there cannot be any presumption in law in all cases unless it is so established by the facts of the said case that any such negligence has occurred on account of such attitude on the apart of the State officials. If such presumption was to be raised in each and every case, then it would not be possible to decide the cases in which public revenue is involved. It is no doubt true that the power of acquisition is a power which falls within the power of eminent domain of the state. If such presumption was to be raised in each and every case, then it would not be possible to decide the cases in which public revenue is involved. It is no doubt true that the power of acquisition is a power which falls within the power of eminent domain of the state. It is further established now and settled by the supreme Court, after amendment to the Constitution, that the right to property is no longer a fundamental right but only a constitutional right which is found in article 300a of the Constitution. It is also true that the word "compensation" has been deleted and in its place the word "amount" has been incorporated. The procedure for payment of this amount has been laid down under the Land Acquisition Act. In the present case, lands were acquired some time in 1984-86. The SLAO had granted compensation @ Rs 4. 00 sq. meter in respect of an area of 15400 sq. meters. The amount which was claimed by the claimants was @ Rs 31. 25 paise per sq. meter and the Court had awarded the amount @ Rs 27. 00 per sq. meter. After the appeal was admitted in this court, the respondents - claimants were permitted to withdraw 48% of the said amount after giving an undertaking that in the event the appeal is decided against them, the amount would be withdrawn. Consequence of allowing of the appeal on the preliminary point of limitation would be that the right which is conferred for seeking enhancement of the amount would be taken away without offering a reasonable opportunity to the claimants on this issue. Under the scheme of the land Acquisition Act, the Statutory Authority, while passing an award, makes an offer which can be accepted without protest or under protest by the claimant. Thereafter, a statutory right is conferred on the claimant in case he is not satisfied with the offer to seek enhancement of the compensation which issue is decided by the Civil Court as envisaged under section 54 of the Land Acquisition Act. The said issue is decided in the form of an original suit against which a statutory appeal is provided. The said issue is decided in the form of an original suit against which a statutory appeal is provided. Though the State has a right to acquire the land for public purpose, yet the claimants have a right to claim compensation at the market value and when this right gets fructified by an order passed by the Reference Court, the State is duty bound to pay the enhanced compensation subject to further orders being passed by the High Court or Supreme court. This amount which is paid, therefore, is not by way of charity or largess which is conferred on the claimant. The claimants by virtue of provisions under the Land Acquisition Act have right to seek this enhanced compensation. This cannot be taken away in first Appeal by substituting the view taken by the collector who has held that it is within limitation and setting aside the judgement of the Reference Court by further holding that it is without jurisdiction unless a reasonable opportunity is afforded. In the present case, since the oral submissions are made by the learned agp appearing on behalf of the State, the Counsel for the respondents has seriously disputed the point of limitation including the date on which the statutory notice which was served on the respondents - claimants. ( 77 ) THE respondents have vehemently urged that it was not open for the learned AGP to merely rely on certain paragraph wherein the date of service of notice under section 12 (2) is mentioned, to be taken as an admission on their part regarding service of notice. It was urged that since the Collector himself proceeded to file the reference on the footing that it was within limitation, there was no occasion for the claimants to allege or dispute the question of limitation. Shri P. B. Shah, the learned Counsel appearing on behalf of the appellants relied upon the judgment in the case of State of Punjab Vs. Darshan Singh reported in (2004) 1 SCC 328 in support of the said submissions. He submitted that in the said case, the Supreme Court did not permit the point of limitation to be raised for the first time. ( 78 ) SIMILARLY, it would be profitable to refer to para 15 of the Judgement of the Supreme Court in the case of banarsi Das Vs. Kanshi Ram and Ors. He submitted that in the said case, the Supreme Court did not permit the point of limitation to be raised for the first time. ( 78 ) SIMILARLY, it would be profitable to refer to para 15 of the Judgement of the Supreme Court in the case of banarsi Das Vs. Kanshi Ram and Ors. reported in AIR 1963 1165 SC page 1165, which reads as under:-" (15) The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi ram, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of s. 3 of the Limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgments. In the course of the discussion, the High Court has said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Bansari Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Bansari Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit. " ( 79 ) APART from that, the Supreme Court by its judgement in the case of Ram Kali Bhattacharjee Vs. State of W. B. reported in 1995 Supp (3) SCC 314 which was delivered by the Division Bench of the Supreme Court ( K. Ramaswamy and K. S. Paripoornan, JJ) where a similar point was raised and the facts were identical, as the facts in the present case, remanded the matter to the Reference Court for the purpose of framing of an issue for the purpose of deciding the controversy as there was no factual data available. In the said case also, the question before the Supreme Court was : whether the reference applications made by the appellant were within limitation as provided under the proviso to section 18 (2) of the Land Acquisition Act 1894? The notification under section 4 of the West Bengal (Requisition and Acquisition) Act, 1948 was published on 10/04/1949. It was observed by the Supreme Court that the record indicated that the award was made on 22/03/1951 and appears to have been signed on 29/03/1951. The Supreme Court further observed in para 2 of its Order as under:-"2. The record would indicate that the Land Acquisition collector appears to have made the award on 22-3-1951 and appears to have signed the same on 29-3-1951. We are not giving any finding in that behalf. Dissatisfied therewith the claimants sought for reference and the civil court enhanced the compensation. The State went in appeal to the High Court. The division Bench noticed that the reference applications were made beyond limitation and that therefore the award of the civil court was held to be without jurisdiction. Thus, this appeal by certificate. Dissatisfied therewith the claimants sought for reference and the civil court enhanced the compensation. The State went in appeal to the High Court. The division Bench noticed that the reference applications were made beyond limitation and that therefore the award of the civil court was held to be without jurisdiction. Thus, this appeal by certificate. "the facts, therefore, in the said case before the supreme Court and facts in the present case are almost identical. The Supreme Court further proceeded to observe in para 4 of its order as under:-"4. Having considered the paucity of evidence in this behalf, we find that it is not desirable to decide this controversy without any factual foundation. We think that an appropriate course would be that the reference court should go into the question: (1) 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 the award under section 11? (2) What are the dates on which the applications under Section 18 came to be filed by the claimants and to decide whether the applications are within the limitation as provided under the proviso to Section 18 (2) of the Act? 5. Since these questions hinge upon the finding 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 6 months from the date of the receipt of the order of this Court. 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 6 months from the date of the receipt of the order of this Court. " ( 80 ) THE facts before the Supreme Court, therefore, were almost identical to the facts in the present case and the Supreme Court, in the facts of the said case, therefore, even at the stage when the matter reached the supreme Court, thought it fit, fair and just to remand the matter to the Reference Court for establishing the factual matrix of the matter. Though it can be said that this is not a ratio laid down by the Supreme Court, yet the reasoning given by the Supreme Court in identical facts of the case, in my view, should, in fact, be a pointer to a course of action which should be taken by the High Court under similar circumstances. I am, therefore, fortified in my view in view of the observations made by the Supreme Court in Ram Kali bhattacharjee's case (supra ). Incidentally, the said judgment has been delivered by one of the learned Judges in the said Division Bench who was also a party to the judgement which was delivered in the case of Shah manilal Chandulal (supra) viz. K. Ramaswamy, J. In my view, therefore, if the State is permitted to amend the appeal Memo after hearing objections on the point of limitation by the Counsel for respondents and, in that event, the proper course of the action would be to remand the case in order to give fair opportunity to the parties to agitate the question of limitation as the respondents - claimants have been caught unaware on the point of limitation after nearly 19 years after the reference was filed in the Reference Court. ( 81 ) THERE cannot be any two opinions regarding the ratio laid down by the Supreme Court in respect of the cases where the Courts or the authorities lack inherent jurisdiction having passed the orders and the power of the High Court to declare such orders as being nullity or being void-ab-initio. ( 81 ) THERE cannot be any two opinions regarding the ratio laid down by the Supreme Court in respect of the cases where the Courts or the authorities lack inherent jurisdiction having passed the orders and the power of the High Court to declare such orders as being nullity or being void-ab-initio. The question, however, is that before arriving at a conclusion whether, in fact, the jurisdiction of the Court is ousted or not, this issue, first of all, has to be decided and this duty is cast on the Court itself as laid down in Mohammed Hasnuddin's case (supra ). Once the duty is cast on the Court, a further obligation is cast to ensure that both the parties are given an opportunity to lead the evidence and make their submissions on this point and only thereafter the point of jurisdiction ought and should be decided. Even under cases where inherent lack of jurisdiction is pleaded in the Apex Court for the first time, sufficient opportunity is given to the other side and thereafter the Court can decide this issue. In the present case, the Court, first, is required and is called upon to consider whether the reference is filed within limitation which question is admittedly a mixed question of fact and law. After this issue is decided, the question of jurisdiction would arise. Under these facts and circumstances, merely because the claimants in the reference application which was filed in the reference court have in the concluding paragraph stated the list of dates and have mentioned that notice under section 12 (2) was received on a particular date, that cannot be taken as an admission and the question of limitation in the facts of this case, in my humble opinion and with utmost respect to my learned brother, cannot be decided by the High Court. The Division Bench of the Punjab and Haryana High Court in the case of Ram singh and others vs. Punjab State now Haryana State reported in AIR 1976 Punjab and Haryana 205 also had an occasion to consider the similar controversy which was raised before us and the Division Bench of Punjab and haryana High Court in para 9 of its judgment, has observed as under:-"9. The question of limitation is a mixed question of law and fact and, therefore, it cannot be allowed to be raised for the first time in appeal. Before deciding this point, the parties shall have to lead evidence to prove on what date the appellants of both these appeals came to know of the award. In this connection if any authority is needed, reference may be made to Gopal fateh Singh v. Sis Ram, AIR 1949 East punj 283 and Anwarul Hasan Khan v. Ali mohammad, AIR 1961 All 558 . Therefore, this preliminary objection, which is a mixed question of law and fact is not permitted to be raised for the first time in appeal. "the issue before the Division Bench of the Punjab and haryana High Court was that the appellant was not present when the award was pronounced by the Collector. There was no proof on the file as to when the notice under section 12 (2) of the Act was served upon them and, under these circumstances, when the objection was raised by way of preliminary objection on the point of limitation for the first time in the High Court, the division Bench did not permit this point to be raised. Though, the judgement of the Division Bench of Punjab and Haryana High Court is not binding on us, it has a persuasive value and it does reflect the trend which is normally observed in such cases where preliminary objection is raised for the first time in the High Court without there being any factual foundation in that behalf. ( 82 ) IN my humble opinion, therefore, firstly, the government cannot be permitted to raise the issue of limitation for the first time during the oral arguments without making an application to amend the Appeal Memo and without affording an opportunity to the respondents - claimants to file their say on the said ground. Only after a reasonable opportunity is given to the respondents where they are made aware of the ground which goes to the root of the case regarding jurisdiction as well as limitation, which takes away the right of the claimants to seek enhanced compensation and only after such application is decided in favour of the government, the Government can be permitted to raise such a preliminary objection. Secondly, with utmost respect to my learned brother and in my humble opinion even if such a preliminary objection is permitted to be raised in the First Appeal, after the Appeal Memo is permitted to be amended, this issue should be remanded to the trial court for the purpose of establishing the factual foundation after giving due opportunity to the claimants to seriously dispute the fact and the legal aspect on the question of limitation. ( 83 ) FOR the aforesaid reasons, therefore, in my view, the appeal will have to be heard on merits and cannot be disposed of on the oral preliminary objection on the point of limitation which is raised by the learned AGP and to that extent I humbly and most respectfully disagree with the view expressed by my learned brother on this preliminary objection. I do not have slightest hesitation in accepting all other views which are expressed by my learned brother on all other aspects of law. I respectfully and most humbly beg to differ with my learned brother who has given a erudite and detailed judgment considering almost all points and judgments of the Supreme Court, this Court and other High Courts. In my view, therefore, this matter, since there is disagreement on the question of preliminary objection regarding limitation, the matter will have to be referred to a third Judge or the larger Bench in accordance with the provisions of Section 98 (2) of the civil Procedure Code. "there being difference of opinion on some of the points of law stated above, it is necessary that the appeals should be heard on those points by one or more other Judges in accordance with the provisions of law comprised under Section 98 of the Code of Civil procedure, 1908 and therefore the matters need to be placed before the Hon'ble The Chief Justice for appropriate order in that regard. The Registry to place these matters before the hon'ble The Chief Justice for necessary order. The appellants to furnish additional paper-books in accordance with the order to be passed by the Hon'ble the Chief Justice. "