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2008 DIGILAW 387 (BOM)

Smita w/o Arun Kashikar v. Collectorate Wardha

2008-03-13

A.B.CHAUDHARI, SWATANTER KUMAR

body2008
JUDGMENT A.B. Chaudhari, J. In the instant writ petition, the petitioner has put to challenge the order dated 30.6.2000 passed by S.D.O. Wardha in Revenue Case No. MRC-81/Deoli-10/99- 2000 rejecting the application made by the petitioner under Section 34 of the Maharashtra Industrial Development Act, 1961(in short M.I.D.C. Act) for making a reference to the Civil Court for enhancement of the compensation for the land of the petitioner that was acquired. The petitioner further seeks a direction to the respondents to make a reference to the Civil Court for grant of additional compensation and a declaration that the reference that was sought to be made by the petitioner under communication dated 3.2.1999 was within limitation. 2. Facts : On 31.10.1989 proceedings for acquisition of lands including that of petitioner for development of Industrial Area by M.I.D.C. were initiated and a public notice to that effect was published in the official gazette on 14.12.1989. Petitioner is the owner of field survey no.81/8011, new survey no. 5030/3, area 1.94 hectares, mouza Deoli, district Wardha. The petitioner did not receive any personal notice regarding acquisition of her land. On 13.7.1994 Award was passed. On 15.7.1994 a notice was issued to to the petitioner about passing of the Award and to remain present on 27.7.1994 for receiving the compensation. Accordingly the petitioner appeared on 27.7.1994 and received the compensation under protest. 3. On 4.8.1994 her advocate applied for grant of certified copy of the Award and Form M etc. and paid amount of Rs.50/- to the clerk by name Bangre in the copying section of the office of respondents. The said clerk did not issue the printed receipt of the Government but issued the receipt on a plain paper for Rs.50/-. The counsel for the petitioner made repeated enquiries but was told that record was not received for preparing the certified copy. This went on till 23.2.1998, on which date the counsel for the petitioner issued a notice to the respondents stating that the said clerk Shri Bangre misappropriated the amount of Rs.50/- that was tendered to him towards the charges for supply of certified copy and that the said clerk had received the amount likewise from so many persons and that the certified copies were not being supplied on the basis of the application dated 4.8.1994. Since there was no response to the notice dated 23.2.1998, the petitioner prepared a claim for enhanced compensation by framing the application under Section 34 of M.I.D.C. Act and sent the same by registered post A/d under covering letter dated 3.2.1999 to the respondents and requested for making a reference to Civil Court. This application came to be registered as case No. MRC- 81/Deoli/10-1999-2000 and then was rejected by the impugned order. Hence this writ petition. 4. SUBMISSIONS : Mr.P.S.Sadavarte, learned counsel for the petitioner, reiterated the facts noted by us in the foregoing paragraphs. He then argued that no enquiry whatsoever was conducted on the allegations relating to misappropriation and non-supply of certified copy to the petitioner to enable her to make reference within time. Further, the petitioner was not heard before the impugned order was made and, therefore, it is necessary to remand the matter for fresh enquiry. 5. Per contra, Mr.S.Y.Deopujari, learned A.G.P., opposing the writ petition, argued that except the bare say of the petitioner about the application for certified copy allegedly made on 4.8.1994 by the petitioner and the receipt on a plain paper for Rs.50/-, there is absolutely no material placed on record of this Court to believe the story narrated by the petitioner about misappropriation of Rs.50/- and non-supply of certified copy. According to Mr.Deopujari, in ground no. (X) itself of the writ petition, it is stated that in respect of other agriculturists reference has been made by the respondents to the Civil Court for adjudication and in the wake of this statement, there is reason to believe that the statement made in the impugned order that all other agriculturists received the certified copies within time and their references were accordingly made is true. According to him, the limitation for making reference is only 60 days as per section 34 of the M.I.D.C. Act 1961 and six weeks from the receipt of notice under Section 12(2) of the Land Acquisition Act, and in all other cases the same is six months. He argued that the limitation having expired, in any case it will not be legal and proper to interfere in the matter. 6. CONSIDERATION : Heard the learned counsel for the parties at length. It is an admitted position that the Award was passed on 13.7.1994. He argued that the limitation having expired, in any case it will not be legal and proper to interfere in the matter. 6. CONSIDERATION : Heard the learned counsel for the parties at length. It is an admitted position that the Award was passed on 13.7.1994. It is also an admitted position that the petitioner had received a notice dated 15.7.1994 by which she was informed about passing of the Award and was also asked to collect the compensation awarded to her. It would be useful to quote the relevant pleading from the writ petition, which reads thus : The petitioner was not aware of passing of the said award and the petitioner at the very first time came to know of passing of the said award, after service of the notice dated 15.7.1994 informing the petitioner that she should remain present in the office of the respondent no.2 to receive compensation on 27.7.1994. It is submitted that the petitioner has accepted the amount of compensation awarded under the award dated 13.7.1994 under protest. From the above, it is clear that notice dated 15.7.1994 under section 12 (2) of the Land Acquisition Act (for short L.A. Act) was served upon her. Section 18(2) thereof reads as under : 18. Reference to Court.- (1) ....... (2) The application shall state the grounds on which objection to the award is taken : Provided that every such application shall be made, - (a) If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.. Perusal of the above provision and in particular clause (b) shows that upon receipt of notice under section 12(2) of the L.A. Act, application for reference has to be made within six weeks. There is a second part to this clause (b) which provides for period of six months from the date of the Award of the Collector. Perusal of the above provision and in particular clause (b) shows that upon receipt of notice under section 12(2) of the L.A. Act, application for reference has to be made within six weeks. There is a second part to this clause (b) which provides for period of six months from the date of the Award of the Collector. It can be thus seen that beyond the outer limit of six months from the date of passing of Award by the Collector, there is no provision for making reference under Section 18 of the Act. 7. In the instant case, the the period of six weeks expired by the end of August,1994, i.e. from the date of receipt of notice dated 15.7.1994 by the petitioner and admittedly the application for making reference was made on 3.2.1999. The Division Bench of this Court in First Appeal No. 251 of 1996 with other 356 First Appeals/Cross-objections decided the similar issue. Speaking for the Bench (Per Hon'ble the Chief Justice), this Court observed thus : We are unable to find any merit in the contention raised on behalf of the claimants. It is neither disputed before us nor was disputed before any other fora that in the applications filed by the claimants under Section 18 of the Acquisition Act they had categorically and specifically admitted that they had received the notices under Section 12(2) of the Acquisition Act on 31.3.1986. The applications under Section 18 of the Acquisition Act are dated 5th June, 1986. No purpose would be served by remanding the matter to the Reference Court inasmuch as the claimants cannot be permitted to go back from their admission of receipt of a statutory notice. Furthermore, it is not for any other purpose that the dates were mentioned in the application. The applicants were fully aware that they are filing applications under Section 18 of the Acquisition Act and had already received the notices under Section 12(2) of the Acquisition Act. These applications are signed by the applicants and that fact is also not in dispute. That being so, it is not necessary for us to set aside the judgments of the Reference Court and remand the matters to that Court. These applications are signed by the applicants and that fact is also not in dispute. That being so, it is not necessary for us to set aside the judgments of the Reference Court and remand the matters to that Court. It is settled principle of law which in fact was not even disputed before us that the Collector and for that matter any other Court has no power to condone the delay in filing an application under Section 18 of the Acquisition Act. That being the settled position of law, again it will be futile for this Court to accept the contentions raised on behalf of the claimants for remanding the matter to the Court of the learned Joint District Judge. In the case of Mahadeo Bajirao Patil vs. State of Maharashtra, 2006(1) Mh.L.J. 28 , the Hon'ble Supreme Court has clearly enunciated the principle that power to condone the delay beyond the prescribed period of six weeks is not vested with the Collector or the Court.” We propose to follow the same course of action for the same reasons appearing in the aforesaid case and hold that it will be futile for this Court to accept the contention raised on behalf of the petitioner for remand of the matter. Even assuming that there is some substance in respect of allegations of misappropriation of copying fees of Rs.50/- and non-supply of certified copy of award, the application for making reference was clearly barred by limitation, as held by us. Though the petitioner is not entitled to claim benefit of limitation of six months from the date of award as per second part of clause (b) of sub-section (2) of Sec. 18 of the L.A. Act, even the said period expired on 12.1.1995; whilst the application for making reference was made on 3.2.1999. In our opinion, therefore, there is no need for us to go into those allegations of misappropriation and nonsupply of certified copy in time. 8. In the result, we do not find any substance in the present writ petition. Same is therefore dismissed. Rule is discharged. Costs made easy.