Judgment :- P.C. 1. Rule. With the consent of the parties made returnable forthwith and heard. 2. The question which arises for consideration in the above Petition is as to whether the Petitioners can be permitted to amend the reference application filed under Section 18 of the Land Acquisition Act, so as to substitute paragraph 3 by the proposed paragraph in the amendment application. 3. The factual matrix involved in the above Petition in short can be stated thus. The Petitioners were the owners of certain lands within the jurisdiction of then Malegaon Municipal Council and presently the Malegaon Municipal Corporation. The lands of the Petitioners were notified for acquisition for the purposes of the Municipal Council and the Notification under Section 4(1) of the Land Acquisition Act was issued sometime in the year 1987. The award in question of the said land was declared on 2681989 and the Petitioners were issued notice under Section 12(2) on 111990 and were asked to remain present before the Special Land Acquisition officer on 511990 to collect the amount of compensation. 4. The Petitioners being dissatisfied with the compensation awarded to them applied to the Collector for making reference to the District Court for enhancement of the compensation. The Collector accordingly made a reference in respect of the Petitioners as well as other similarly situated persons. The said reference application in so far as the present Petitioners are concerned, was numbered as Reference Application No.445 of 1990. The said reference application was partly allowed to the extent mentioned in the operative part of the Judgment of the reference Court dated 22-4-1998. The acquiring body i.e. Malegaon Municipal Council and the State filed First Appeals in this Court. The First Appeal filed by the acquiring body was numbered as First Appeal No.107 of 1999 and the First Appeal filed by the State of Maharashtra was numbered as First Appeal No.263 of 1999. The said first appeals were disposed of by a Division Bench of this Court by Judgment and Order dated 15-6-2009. The Division Bench of this Court thought it fit to remand the matter back to the reference Court, in view of the fact that the acquiring body was not a party to the reference proceedings. The said first appeals were disposed of by a Division Bench of this Court by Judgment and Order dated 15-6-2009. The Division Bench of this Court thought it fit to remand the matter back to the reference Court, in view of the fact that the acquiring body was not a party to the reference proceedings. After the Judgment of the Division Bench of this Court, the claim petition in the case of the Petitioners was amended so as to join the acquiring body as a party Respondent No.2 to the said claim petition. The said application on remand is given a new number i.e. Land Reference No.1 of 2009. On remand the acquiring body filed its Written Statement and in the context of the present Petition what is relevant to note is that the acquiring body raised the issue of limitation in paragraph 6 of its Written Statement. It was the case of the acquiring body that the reference as filed on 22-2-1990, was beyond limitation. In view of the said Written Statement filed by the acquiring body, the Petitioners moved an application Exhibit 74 for amendment of the claim petition. The said amendment was moved on the basis that the Appendix-VI filed by the Respondents which is an annexure to the reference application shows that no notice under Section 12(2) of the Land Acquisition Act was served upon the claimants. The Trial Court passed an interim Order on the said Application dated 7-2-2011 that since the said contention of the acquiring body goes to the root of the matter and since it was the stand of the claimants as mentioned in the amendment application that they did not receive the notice under Section 12(2) of the said Act and that there was a communication gap between them and their Advocate which has resulted in the Petitioners making an averment as found in the original paragraph 3 of the claim petition. The Trial Court directed the Petitioners who were claimants / applicants to place the copy of the Appendix-VI on record on or before 21-2-2011 to resolve the issue. It appears that pursuant to the said directions, the Petitioners / claimants had placed a copy of Appendix-VI on record. The Trial Court thereafter considered the said Application for amendment Exhibit 74 and by the impugned Order dated 7-10-2011 rejected the said Application. It appears that pursuant to the said directions, the Petitioners / claimants had placed a copy of Appendix-VI on record. The Trial Court thereafter considered the said Application for amendment Exhibit 74 and by the impugned Order dated 7-10-2011 rejected the said Application. The rejection of the said application is inter alia on the ground of delay in as much as the Trial Court was of the view that the said application for amendment could not be moved after a period of 21 years and that the petitioners cannot be allowed to withdraw the admission as contained in paragraph 3 of the claim petition. The Trial Court further observed that though the matter was remanded by this Court so as to allow the parties to adduce evidence as they deem proper, the same would not entitle the Petitioners to seek the amendment of the nature sought vide the amendment application. As indicated above, it is the said Order which is impugned in the present Petition. 5. Heard Mr. Joshi the Learned Counsel appearing for the Petitioners, the Learned Counsel Mr. Patwardhan appearing for the Respondent No.2 and Mr. Rayrikar, the Learned AGP for the Respondent No.1. The Learned Counsel for the Petitioners would contend that it is in view of the communication gap between the Petitioners and their Advocate that the said statement as contained in paragraph 3 of the claim Petition as originally filed, came to be incorporated. The Learned Counsel would contend that till the acquiring body had filed its Written Statement in the year 2010, there was no occasion for the Petitioners to check the veracity of the statement made in paragraph 3 and only after the issue of limitation was raised by the acquiring body that the Petitioners checked schedule VI and discovered that infact the notice under Section 12(2) of the said Act was not issued to the Petitioners. The Learned Counsel would contend that it is on the said basis that the amendment application was moved by the Petitioners to correct a mistake which had occurred at the time of making the reference application. The Learned Counsel would contend that it is on the said basis that the amendment application was moved by the Petitioners to correct a mistake which had occurred at the time of making the reference application. In so far as, the aspect of delay is concerned, the Learned Counsel would contend that it is only after the acquiring body had filed its Written Statement that the cause for seeking amendment had actually arisen and, therefore, it cannot be said that there was a delay of 21 years on the part of the Petitioners in moving the said amendment application. The Learned counsel sought to justify the amendment on the ground that the Petitioners should be given an opportunity to make good their case based on the record of the authorities and no prejudice would be caused to the acquiring body as well as the State authorities in view of the fact that the opportunity to cross-examine the petitioners would be available to them. The Learned Counsel would contend that though there is an averment as contained in paragraph 3 of the claim petition as originally filed, since the reference application is a valuable right of the Petitioners to get enhancement of compensation they should not be deprived of the said right on technical grounds. The Learned Counsel placed reliance on the Judgment in PanchdeoNarain Srivastava Vs. Jyoti Sahay & Anr. Reported in AIR 1983 Supreme Court 462; in so far as the aspect of withdrawal of the alleged admission is concerned. 6. Per contra, it is submitted by Mr. Patwardhan, the Learned Counsel appearing for the Respondent No.2 that what is sought to be done by the said proposed amendment is to take away the admission as contained in paragraph 3 of the claim petition as originally filed. The Learned Counsel would contend that the said admission is unequivocal and unambiguous. According to the Learned Counsel, the Petitioners have accepted the fact that they have received notice under Section 12(2) of the said Act on 1-1-1990 by which they were asked to remain present before the Land Acquisition Officer on 5-1-1990 to collect their compensation. The Learned Counsel would contend that it is well settled position in law that a party would not be allowed to resile from admission given by permitting an amendment. The Learned Counsel would contend that it is well settled position in law that a party would not be allowed to resile from admission given by permitting an amendment. The Learned Counsel would contend that the issue of limitation is the core issue in so far as the reference application was concerned, and it is for the Petitioners to make good, that the application filed by them seeking reference was within the limitation prescribed. The Learned Counsel would contend that the concerned Court is also enjoined upon to see whether the application in question is filed within time, irrespective of the fact whether such an issue is raised before it or not. The Learned Counsel contended that it is Appendix VII and not Appendix VI on which the Petitioners seem to rely. The said Appendix does not aid the case of the Petitioners any further as the Petitioners accept the fact that notice has been served but contend in their application that the same was not validly served. 7. On behalf of the State, the Learned AGP would contend that the Petitioners have pursuant to the notice under Section 12(2) remained present on 5-1-1990, and have collected the compensation as also handed over possession of the lands in question. The Learned AGP drew my attention to the receipt signed by the Petitioners which is dated 5-1-1990 in acknowledgment of having received the amount of compensation as also the possession receipt also bearing the same date, evidencing the fact that the possession of the land in question has been handed over to the authorities. 8. Having heard the Learned Counsel for the parties I have given my anxious consideration to the rival contention. 9. In the context of the issue which arises for consideration, it would be apposite to consider the averment as contained in paragraph 3 of the claim petition as originally filed. The same is re produced herein under: “3. The claimants were not present when the award was made. The Claimants were served with notice u/s 12(2) of the Land Acquisition Act, long after the declaration of the award by notice dated 1-1-1990 requiring them to remain present for receiving compensation on 5.1.1990, when for the first time they came to know about the award. The claimants were not present when the award was made. The Claimants were served with notice u/s 12(2) of the Land Acquisition Act, long after the declaration of the award by notice dated 1-1-1990 requiring them to remain present for receiving compensation on 5.1.1990, when for the first time they came to know about the award. The claimants accepted the amount under protest and applied for certified copies of the award on 9-1-1990 which was supplied to them on 8-2-1990.” 10. A reading of the said averment therefore, exfacie discloses that there is a admission on the part of the Petitioners that after the declaration of the award by notice dated 1-1-1990, the Petitioners were asked to remain present for receiving compensation on 5-1-1990. It has further being stated that it is after the receipt of the said notice dated 1-1-1990 that they first time came to know about the award. It is further stated that they have accepted the amount under protest and applied for certified copies of the award on 9-1-1990 which was supplied to them on 8-2-1990. Therefore, the statement of the Petitioners in the said paragraph as can be seen, is unequivocal, clear and unambiguous as regards the receipt of the said notice dated 1-1-1990. It is further required to be noted that the Petitioners prosecuted the said reference application being No. 445 of 1990 culminating in the Judgment and Order dated 22-4-1998 of the Reference Court and thereafter also prosecuted the First Appeals filed by the acquiring body as well as the State in this Court. The Petitioners prosecuted the said proceedings on the basis of the averment made in paragraph 3 of the said claim petition. The papers on which the Petitioners now seek to lay emphasis i.e Appendix-VI was very much in existence at the time when the said proceedings were being prosecuted, but the Petitioners did not deem it fit to correct the statement made in paragraph 3 either in the reference Court or seek permission of this Court in the First Appeals and the Application for amendment Exhibit 74 was filed only after the Written Statement came to be filed by the acquiring body in the said claim petition after its remand by the Court. 11. 11. In so far as, the acquiring body is concerned, it is trite that it is a necessary party in the reference proceedings or even at the appellate stage when the claimants move for enhancement of the compensation. The fact that the acquiring body has taken a plea in its Written Statement of limitation would therefore, not aid the Petitioners/Claimants to contend that in view of the plea of limitation raised that the Petitioners/Claimants checked the papers and on going through the papers found that the notice under Section 12(2) was not issued to them and that the statement made in paragraph 3 of the reference application was on account of the communication gap between the Petitioners and the Advocate. The statement as can be seen from paragraph 3 of the reference application belies the case of the Petitioners that the said statement in paragraph 3 was made in view of the communication gap between the Petitioners and their Advocate. The statement which is in the nature of an admission cannot by any stretch of imagination be said to be an outcome or a result of the communication gap between the Petitioners and their Advocate as the statement is clear and unambiguous on the point of the date of the notice as well as date when the Petitioners were asked to remain present before the Special Land Acquisition Officer. Further the fact that the Petitioners remained present before the State Authorities on 511990, accepted the compensation and also handed over the possession of the lands in question as it were puts the final nail in the coffin of the Petitioners case. 12. In so far as, the amendment application is concerned, I find considerable merit in the submission of the Learned Counsel Mr. Patwardhan appearing for the acquiring body that the admission as contained in paragraph 3 cannot be allowed to be taken away by permitting the Petitioners to amend the claim petition in terms of the amendment application. There is substance in the contention of the Learned Counsel that the Judgment of the Apex Court in Pachdeo Narain’s case (supra) was turning on the facts of the said case and cannot be said to lay down a general proposition of law as regards the aspect of taking away of an admission by way of amendment of the pleadings. There is substance in the contention of the Learned Counsel that the Judgment of the Apex Court in Pachdeo Narain’s case (supra) was turning on the facts of the said case and cannot be said to lay down a general proposition of law as regards the aspect of taking away of an admission by way of amendment of the pleadings. In my view, the Trial Court was right in recording a finding that the amendment if allowed, would result in the admission as contained in paragraph 3 of the claim petition as originally filed being taken away. 13. In so far as, the withdrawal of admission by way of permitting the amendment is concerned, a useful reference could be made to the Judgment of the Apex Court in B.K.NarayanaPillai Vs. Parameswaran Pillai & Anr. reported in (2000) 1 Supreme Court Cases 712 , wherein the Apex Court in paragraph 4 of the said Judgment has held as follows: “The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original l's was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be avowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating s legal right accruing to the opposite part on account of lapse of time. Proposed amendment should not cause such prejudice to the other side which can not be compensated by costs. No amendment should be allowed which amounts to or relates in defeating s legal right accruing to the opposite part on account of lapse of time. The delay in Filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.” (emphasis supplied) 14. As regards Appendix VII and not Appendix VI which is appended to the Reference application in terms of Section 19(2) of the Land Acquisition Act, the said Appendix as rightly contended by the Learned Counsel Mr. Patwardhan, does not further the case of the Petitioners in any manner. It is the Petitioners case as can be seen from the amendment application that the notice was not validly served upon them, implicit in this, is the acceptance of the fact that the notice in fact was served upon the Petitioners. In my view, merely because the record is not available, the Petitioners would not be entitled to amend the claim petition, more so in the light of the averments made in paragraph 3 of the claim petition as originally filed. 15. In so far as, the delay which is one of the grounds on which the application for amendment has been rejected, the submission of the Learned Counsel for the Petitioners Mr. Joshi that since the acquiring body had filed its Written Statement in the year 2010, the Petitioners cannot be accused of delay, in my view, cannot be countenanced. The Petitioners as mentioned herein above were prosecuting the proceedings i.e. L.R. No. 445 of 1990 and the First Appeals in this Court which proceedings have been going on since the year 1990. In so far as, the reference proceedings are concerned, the issue of limitation is fundamental as it is one of the requirements which has to be fulfilled before the Collector can make a reference to the concerned Court. The Petitioners were therefore, bound to make an assertion in respect of the point of limitation which the Petitioners have done so by making the averment as contained in paragraph 3 of the claim petition as originally filed. The Petitioners were therefore, bound to make an assertion in respect of the point of limitation which the Petitioners have done so by making the averment as contained in paragraph 3 of the claim petition as originally filed. The Trial Court therefore, was right in recording a finding that the Petitioners cannot be allowed to amend the claim petition so as to substitute the original paragraph 3 by the proposed amended paragraph 3, so as to take away an admission which is on record for the last 21 years. In my view, therefore, no exception could be taken to the said finding of the Trial Court that the application filed by the Petitioners was belated by 21 years. 16. For the aforesaid reasons there is no merit in the above Petition which is accordingly dismissed. 17 Rule is accordingly discharged with no order as to costs.