JUDGMENT 1. Heard learned advocate of the petitioner and Mr. Hajare, learned AGP for respondent. 1.1 In view of the fact that the reference proceeding is pending since 1999 and the claimants (original land owners) are still awaiting determination of appropriate rate of compensation and in view of the fact that even after the order dated 16.2.2012 passed by this Court in First Appeal No.3610 of 2011 to First Appeal No.3613 of 2011, learned advocate for the petitioner requested that the petition may be heard and finally decided at admission stage. Learned AGP also fairly submitted that he has no objection if the matter is heard and finally decided at admission stage. Therefore, at the request of learned advocate for the petitioner and with consent of learned AGP for the respondent, the matter is heard and finally decided at this stage. 2. In present petition the petitioner has prayed, that:- “12(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ of certiorari or any other appropriate writ, order or direction, and call for record and proceedings of L.A.R. No. 246 of 1999 (Main) (L.A.R. 247/1999 to 257/1999) and after perusing the same, be pleased to quash and set aside the order dated 9.7.2012 passed below application Exh.47 in L.A.R. No. 246 / 1999 (Main) and be further pleased to allow the application Exh.55 filed by the petitioner as prayed for and the petitioners may be permitted to lead further evidence and examine Special Land Acquisition Officer as a witness of the petitioner in the aforesaid Reference i.e. L.A.R. No. 246 / 1999 (Main) (L.A.R. 247/1999 to 257/1999) pending before the learned 3rd Additional Senior Civil Judge, Panchmanal, Godhra;” So far as the relevant facts are concerned, the petitioner has averred in the petition, inter alia that after issuing requisite notifications under land acquisition act the respondent authority acquired petitioner’s land and after following the procedure prescribed under the act award under section 11 came to be passed by the land acquisition officer. 2.1 It appears that the amount payable by way of compensation as per the said award under section 11 (a) was, for the first time paid to the some of the petitioners in or around May 1999. Upon being aggrieved by the determination of rate of compensation the petitioner instituted reference proceedings in June 1999. 2.1 It appears that the amount payable by way of compensation as per the said award under section 11 (a) was, for the first time paid to the some of the petitioners in or around May 1999. Upon being aggrieved by the determination of rate of compensation the petitioner instituted reference proceedings in June 1999. 2.2 The learned Court vide order dated 4.2.2011 dismissed the reference proceedings on ground of delay. 2.3 Aggrieved by the said order the petitioner preferred first appeal No. 3583 of 2011 to 3592 of 2011 claiming that the land acquisition officer had not informed the petitioners about declaration of the award and any notice under Section 12(2) of the Act was not served to them. 2.4 This Court partly allowed the appeal and remanded the cases to the learned Court vide order dated 16.2.2012 in First appeal Nos. 3583 of 2011 to 3592 of 2011 wherein the Court observed that:- “3. The present First Appeals have been filed under Section 54 of the Land Acquisition Act, 1984 r/w. Section 96 of the Civil Procedure Code, 1908 by the appellants challenging the impugned judgment and award passed in Land Acquisition Reference Cases No.246/1999 and 256/1999 dated 07.02.2011 by the Reference Court [learned 2nd Additional Senior Civil Judge, Godhra, at Panchmahal] consolidated with the main Land Acquisition Reference Case No.246/1999 on the grounds mentioned in the memo of First Appeals inter alia it is specifically contended that after the award is declared by the Collector under the provisions of Section 11 of the Land Acquisition Act. It is contended that neither the copy of the award nor the notice under Section 12(2) of the Land Acquisition Act has been served upon the appellant and no compensation has been paid or even offered to the appellant. It is also contended that the amount of compensation was paid to some of the claimants on 26.05.1999 and they had filed References on 05.06.1999 and, therefore, the main contention is raised with regard to the service of the notice under Section 12(2) in compliance of the Land Acquisition Act. It is, therefore, contended that the mandatory provisions of the notice under Section 12(2) of the Land Acquisition Act and intimation of the award has not been fulfilled and, therefore, the same has been challenged. It is, therefore, contended that the mandatory provisions of the notice under Section 12(2) of the Land Acquisition Act and intimation of the award has not been fulfilled and, therefore, the same has been challenged. It is contended that the question of limitation would not arise since the notice as required under the law is not served upon the appellants. 4. Learned AGP Mr. P. P. Banaji for the respondent No.2 has, on instruction, placed on record the communication dated 13.02.2012 which has received from the Land Acquisition Officer along with the statement in tabular form which confirms that the notice as required under Section 12(2) of the Land Acquisition Act has not been served. 5. Having heard learned advocate Mr. Vijay N. Raval for the appellant and learned AGP Mr. P. P. Banaji for the respondent No.2 and without going further into other contentions and merits of the cases, it is desirable that the present appeals are required to be allowed only on this point remanding the matters back to the Reference Court [learned 2nd Additional Senior Civil Judge, Godhra, at Panchmahal] for deciding fresh in accordance with law, after giving an opportunity to the parties to lead evidence on merits. 6. With the aforesaid observations and directions, the present appeals deserve to be allowed to the aforesaid extent and accordingly the appeals are allowed. The impugned judgment and award passed in Land Acquisition Reference Cases No.246/1999 and 256/1999 dated 07.02.2011 by the Reference Court [learned 2nd Additional Senior Civil Judge, Godhra, at Panchmahal] is hereby quashed and set aside. It goes without saying that the endavour shall be made, the Reference Court shall dispose of the references which has been remanded for being considered from the stage of notice under Section 12(2) of the Act preferably within a period of six months. 7. It goes without saying that since the notice as required under Section 12(2) of the Land Acquisition Act has not been served, the aspect of limitation will not have any bearing in light of the observation made by the Apex Court in the case of Parsottambhai Maganbhai Patel and others Vs. 7. It goes without saying that since the notice as required under Section 12(2) of the Land Acquisition Act has not been served, the aspect of limitation will not have any bearing in light of the observation made by the Apex Court in the case of Parsottambhai Maganbhai Patel and others Vs. State of Gujarat and another, reported in AIR 2005 SC 3464 , has held that since the application for making a reference under Section 18 of the Act was filed beyond the period of six months from the date of declaration of the award; the same was barred by limitation. Direct service is permitted.” 2.5 Thereafter, the learned Court recorded evidence of the petitioner. 2.6 After the claimants closed their evidence the reference cases were adjourned for recording evidence of the respondents. 2.7 The petitioner expected that the respondent authorities would lead their evidence i.e. will examine their witnesses, at least as regards the issue related to notice under Section 12 of the Act and its service to the claimants i.e. as regards the defect for which the cases were remanded. 2.8 However the respondent filed purshis declaring that the respondent does not intend to lead oral or documentary evidence. 2.9 The petitioners have claimed that on account of said action of the respondents the evidence / proof of service of notice under Section 12(2) of the Act is not placed on record before the Court. 2.10 In this background the petitioner submitted application exh.47 for permission to lead further evidence and to recall their witness and also to examine special land acquisition officer, if the respondents do not intend to examine land acquisition officer as their witness. 2.11 The said application came to be rejected vide impugned order dated 9.7.2012. Thereafter the petitioner filed Review Application dated 31.8.2012. 2.12 Aggrieved by the said order the petitioner has taken out present petition. 3. During the pendency of the petition certain events occurred in light of which the petitioner, with permission of the court, amended the petition by placing those subsequent events on record and added paragraph No. 8(A) to 8(D). Thereafter the petitioner filed Review Application dated 31.8.2012. 2.12 Aggrieved by the said order the petitioner has taken out present petition. 3. During the pendency of the petition certain events occurred in light of which the petitioner, with permission of the court, amended the petition by placing those subsequent events on record and added paragraph No. 8(A) to 8(D). Relevant part of the said subsequent details as mentioned in the amendment read thus:- “8(A) The petitioner submits that after filing the present petition before this Honourable Court, the petitioner has filed pursis before the Reference Court that the present petition is pending before this Honourable Court and therefore, time may be granted to the petitioner. A copy of the application filed by the petitioner is annexed herewith and marked as ANNEXURE-G to the petition. The petitioner submits that, however, petition is pending before this Honourable Court and in the said petition this Honourable Court has issued notice to the respondents and accordingly, the same is declared before the Reference Court on the very same day. However, the Reference Court is pleased to dismiss the original reference on 22.8.2012 and also dismissed the present Reference of the petitioner.” 3.1 By the said amendment the petitioner also amended prayer clause and added below mentioned prayers: “(AA) This Honourable Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction, and be further pleased to quash and set aside the judgment and order passed by the Reference Court on 22.8.2012 (AAA) This Honourable Court may be pleased to direct the reference court to decide the Reference afresh after giving opportunity to the petitioners for being heard after affording opportunity of hearing to the petitioner and to take re-deposition and cross examine the Special Land Acquisition Officer and thereafter, decide the Reference on merits of the case.” 3.2 Thus, during the pendency of present petition the petitioner has also challenged the order whereby the learned Court has disposed of the main reference cases. 4. Mr. Pandya, learned advocate with Mr. Raval, learned advocate for the petitioner submitted that vide order dated 16.2.2012, this Court had specifically observed and clarified that in the facts of the case, there is no question of limitation when admittedly the claimants filed the reference much earlier. 4. Mr. Pandya, learned advocate with Mr. Raval, learned advocate for the petitioner submitted that vide order dated 16.2.2012, this Court had specifically observed and clarified that in the facts of the case, there is no question of limitation when admittedly the claimants filed the reference much earlier. Learned advocate for the petitioner also submitted that by the said order dated 16.2.2012, this Court quashed and set aside the orders passed by the learned reference Court and remanded the matter for fresh hearing. Learned advocate for the petitioner submitted that by the said order dated 16.2.2012, this Court also directed the learned reference Court to decide the reference cases in accordance with law and on merits and after providing an opportunity to the claimant to lead any evidence and decide the case on merits in accordance with law on the basis of the evidence that may be produced before the learned reference Court. In light of the said observations by this Court vide order dated 16.2.2012, Mr. Pandya, learned advocate for the petitioner submitted that the learned reference Court was obliged to afford reasonable and sufficient opportunity to the petitioner to lead necessary evidence. However, by the impugned order dated 9.7.2012, the learned reference Court arbitrarily rejected the request of the petitioner and thereafter, during the pendency of the petition, the learned trial Court proceeded with further hearing of the reference and ultimately, vide order dated 22.8.2012, the learned reference Court finally disposed of the reference cases without affording sufficient opportunity to lead evidence. Learned advocate for the petitioner submitted that in this view of the matter, the impugned order dated 9.7.2012 and the order dated 22.8.2012 may be set aside. 4.1 Mr. Hajare, learned AGP has opposed the petition and has tried to support and justify the orders passed by the learned reference Court. Learned AGP submitted that after order dated 16.2.2012, the claimants were allowed opportunity and time to lead evidence and the claimants actually led evidence and that after the claimants closed their stage of evidence, the defendant authority also closed the evidence without leading any oral evidence. Learned AGP submitted that thereafter, the claimants moved the application to re-open the stage of evidence and to call the Land Acquisition Officer as witness. Learned AGP submitted that in the facts and circumstances, the learned reference Court has not committed any error in rejecting the said application. 5. Learned AGP submitted that thereafter, the claimants moved the application to re-open the stage of evidence and to call the Land Acquisition Officer as witness. Learned AGP submitted that in the facts and circumstances, the learned reference Court has not committed any error in rejecting the said application. 5. I have heard learned counsel for the petitioner and learned AGP for the respondent and also considered the material on record. 5.1 It is not in dispute that on previous occasion the learned Court had dismissed the reference cases on ground of delay. 5.2 It is also not in dispute that the said decision and order was challenged by the petitioners in first appeal Nos. 3610 of 2011 to 3613 of 2011 wherein one of the main contentions against the order impugned in the said appeals was on the ground that there was no delay in instituting the reference proceedings inasmuch as any notice under Section 12(2) of the Act and the intimation about declaration of award by land acquisition officer was not served to the petitioners and having regard to the said contention this Court allowed the appeals and remanded the cases to the Court vide order dated 16.2.2012 in the said appeals. In the said order the court observed, inter alia that:- “5. Admittedly, the notices are said to have been served to the claimants on 08.08.2000 in Land Acquisition Reference Cases No.232/1999, 228/1999 and 234/1999. Be that as it may, the notices are served only on 08.08.2000 whereas the references have been filed admittedly on 05.06.1999. Even as per the written submissions made, in Reference Cases, the order has been passed without verification of the record. Therefore, in light of the clear position of law that the mandatory requirement has not been followed and sufficient opportunity cannot be said to be provided to the claimants, the impugned order of the Reference Court [learned 2nd Additional Senior Civil Judge, Godhra, at Panchmahal] dated 04.02.2011 in Land Acquisition Reference Cases No.228/1999 to 231/1999 and 233/1999 and 234/1999 with Land Acquisition Reference Case No.232/1999 deserves to be quashed and set aside. 7. 7. It is directed that the said references are remanded back to the Reference Court for deciding afresh in accordance with law and on merits after providing an opportunity to the claimants to lead any evidence and the Reference Court shall decide on merits in accordance with law on the basis of evidence that may be produced before the trial Court. It goes without endavour shall be made to decide the same expeditiously preferably within six months. It is also required to be mentioned that the aspect of the limitation will not have much relevance in light of the facts and circumstances and in view of the observations made by the Apex Court in the case of Parsottambhai Maganbhai Patel and others Vs. State of Gujarat and another, reported in AIR 2005 SC 3464 , wherein it has been held that since the application for making a reference under Section 18 of the Act was filed beyond the period of six months from the date of declaration of the award; the same was barred by limitation. Therefore, in the facts and circumstances of the case, there is no question of limitation when admittedly references have been filed much earlier. Direct service is permitted..” 5.3 It can be seen form the said observations that this Court observed in the said order that:- “Admittedly, the notices are said to have been served to the claimants on 08.08.2000 in Land Acquisition Reference Cases No.232/1999, 228/1999 and 234/1999. Be that as it may, the notices are served only on 08.08.2000 whereas the references have been filed admittedly on 05.06.1999..... Therefore, in light of the clear position of law that the mandatory requirement has not been followed and sufficient opportunity cannot be said to be provided to the claimants....” 5.4 In the said order this Court further observed that:- “.....said references are remanded back to the Reference Court for deciding afresh in accordance with law and on merits after providing an opportunity to the claimants to lead any evidence and the Reference Court shall decide on merits in accordance with law on the basis of evidence that may be produced before the trial Court. .” 5.5 Thus, from the observations in the said order in the appeals it comes out that according to the details placed on record by learned AGP, Notices under Section 12(2) were served in August 2000. .” 5.5 Thus, from the observations in the said order in the appeals it comes out that according to the details placed on record by learned AGP, Notices under Section 12(2) were served in August 2000. 5.6 In view of the said details Court observed that the reference cases appear to have been filed within time limit. 5.7 However what is pertinent is that the said details were not placed on record of the Reference Court. Hence, so as to ensure that relevant evidence comes on record of original proceedings i.e. Reference cases, the Court passed the order dated 16.2.2012 in the said appeals and remanded the cases to the Reference Court for recording evidence and fresh order. 5.8 It is not in dispute that after the said order remanding the cases to the reference court, the petitioners – claimants examined witnesses and on the understanding, based on the observations by the High Court in the appeals, that the land acquisition officer would be examined by the respondents, the petitioner closed the stage of their oral evidence. 5.9 However, the respondents, after the petitioner closed the stage of their evidence, decided not to lead evidence and without leading any evidence closed the stage of their evidence. 5.10 In the result necessary evidence / proof which can establish all relevant aspects in connection with and related to the Notice under Section 12 of the Act and whether the intimation about declaration of the award by land acquisition officer (i.e. the very purpose for which and the very evidence for which the cases were remanded) was duly served to the claimants or not is not made available on record of the Court. 5.11 This means that the object and purpose of this Court’s order dated 16.2.2012 is not served and on account of the impugned order by the learned trial Court the purpose and effect of the said order is nullified. 5.11 This means that the object and purpose of this Court’s order dated 16.2.2012 is not served and on account of the impugned order by the learned trial Court the purpose and effect of the said order is nullified. 5.12 It cannot be denied that in view of the provision contained under section 12(2) of the Act and in view of the dispute raised by the claimants about service of Notice and intimation about declaration of award, the evidence / proof about service of notice contemplated under Section 12(2) of the Act and the proof that declaration of award was, or was not made in presence of the claimant after due intimation is very relevant and crucial, more so when the reference cases are sought to be rejected on ground of delay. 5.13 In the facts of the case it was necessary that the evidence about the date of service of notice under Section 12(2) of the Act and the evidence that the claimants had the knowledge about the date when the award was to be declared is relevant and crucial, and that therefore, the learned Reference Court ought to have ensured that relevant and sufficient and proper evidence is made available on record. 5.14 Actually, if the parties failed and / or avoided to place on record such evidence then it was learned Court's obligation, to do real, purposeful, substantive and complete justice, to ask the parties – particularly the party who has such evidence in its possession – to place the evidence on record. Instead the learned Court seems to have acted casually and with unjustified haste. 5.15 The learned Court failed to appreciate that it is the claimants who are claiming higher rate of compensation and that obviously they would, therefore, be eager to complete the hearing and get the award at an early date and cannot be interested in delaying the proceedings. In this view of the matter also there was no justification to deny the request made by the applicants. 5.16 Since, the claim of the petitioner is that the notice under the said provision was not served, proof of service of notice was required to be placed before the learned Court, more particularly in light of this Court's order dated 16.2.2012. 5.16 Since, the claim of the petitioner is that the notice under the said provision was not served, proof of service of notice was required to be placed before the learned Court, more particularly in light of this Court's order dated 16.2.2012. 5.17 Ordinarily such evidence would be in possession of the respondent authority since the acknowledgment receipt which would establish the service of registered notice contemplated under Section 12(2) of the Act would be returned to, and would be in possession of, the respondent authority. 6. In backdrop of such facts, the application by the claimants should have been construed as application under Order XVIII Rule 17 and should have been decided in light of the said provision. 6.1 According to the provision under Order XVIII Rule 17, the learned Court has the power to call or to recall any witness at any stage, of course for just and equitable reason and for effective order, substantive justice and for reaching to the truth and upon being satisfied about the reason for such request and the facts and circumstances on account of which such request is made. 6.2 In the facts and circumstances of present case, there was sufficient justification for such request. Besides this, in present case, equity is also in favour of the claimants and the order dated 16.2.2012 passed by this Court, which justified the exercise of power under Order XVIII Rule 17 and there was no reason or justification for the learned trial Court to reject the said application. 6.3 On the contrary, the learned reference Court, as mentioned hereinabove, so as to do substantive justice and to effectively decide the dispute, ought to have granted the opportunity as prayed for by the petitioner. 6.4 In rejecting the said application, the learned reference Court has failed to exercise jurisdiction and authority without proper reason and without application of mind. 6.5 The failure to exercise power by the learned reference Court and non-application of mind amounts to material irregularity in exercising the power conferred by the Court. Therefore also the impugned order deserves to be quashed and set aside. 7. 6.5 The failure to exercise power by the learned reference Court and non-application of mind amounts to material irregularity in exercising the power conferred by the Court. Therefore also the impugned order deserves to be quashed and set aside. 7. Ordinarily, such evidence would be in possession of and / or within the knowledge of the respondent authority, however the respondent authority did not place the said proof on record before the Court, instead the authority, despite the order dated 16.2.2012, conveniently and strategically preferred not to lead any oral or documentary evidence, after the petitioners closed the stage of their evidence. 7.1 At the stage when the petitioners – claimants closed the stage of their evidence they, obviously, expected and believed that having regard to the order dated 16.2.2012 (and since the relevant evidence is in their possession and knowledge) the respondent will place that evidence on record and / or will examine the land acquisition officer and during his evidence the evidence / proof about service of notice under Section 12(2) may be placed on record. However, respondents did not lead evidence. 8. Not only this, but when the petitioners – claimants submitted the application (exhibit 47) requesting the Court to allow them to lead evidence and examine the land acquisition officer and for that purpose to open the stage of evidence, the respondent authority opposed the application and the learned reference Court, unfortunately, rejected the application by technical and dogmatic construction of this Court’s order dated 16.2.2012 and held that the High Court merely directed to allow the claimants to lead evidence and since the opportunity to lead evidence was given and thereafter the claimants closed their evidence, the direction was complied and request made by them under exhibit 47 cannot be granted. 8.1 The learned reference court, in the process, ignored and overlooked the actual object and spirit of the order dated 16.2.2012 whereby the High Court, in substance and in effect desired and directed that the evidence / proof about service of the notice under Section 12(2) of the Act and about the intimation about declaration of the award should be made available on the record of the Court so that the issue about limitation / delay can be effectively and correctly decided in the manner contemplated under the Act. 8.2 Unfortunately, the respondent authorities also, instead of acting as a fair litigant – it being “State” -adopted adversarial role and instead of complying the order as per its spirit and object, the respondent acted strategically. 8.3 The conduct of the respondent actually tantamount to suppressing relevant material / document from the Court. 8.4 Such conduct of the respondent authority who, to say the least, is supposed to act as a fair litigant, is unjustified unacceptable and unsustainable. 8.5 The learned reference court also failed to balance the equities and instead of doing substantial justice acted on technicalities and failed to appreciate that in such cases and such facts the Court ought to act pragmatically instead of adopting a dogmatic stance. 8.6 In this case the learned Court failed to ensure that complete total evidence about service of notice under Section 12(2) of the Act and about service of intimation regarding declaration of award is placed / brought on record and the Court failed to call for the evidence from the party in whose possession the relevant evidence is and thereby learned reference Court failed to exercise jurisdiction. 9. Unfortunately the matter does not end here so far as the conduct of proceedings by learned reference Court are concerned inasmuch as despite the fact that at interlocutory stage (i.e. against the order passed below exhibit 47) present petition was pending in this Court and though this aspect was brought to the notice of the Court the learned reference Court, instead of awaiting the decision in the petition, finally disposed of the main reference cases. 10. In this view of the matter the impugned order below exhibit 47 and the final judgment and order dated 22.8.2012 disposing the reference, deserve to be set aside. 11. Hence, below mentioned order is passed:- For the foregoing reasons the impugned order dated 9.7.2012 below exhibit 47 and the final judgment and order dated 22.8.2012 are set aside and the matter is remanded to learned reference court with clarification and direction that the matter may be heard afresh from the stage when the petitioner submitted application exhibit 47. Appropriate fresh order as regards the said application exhibit 47 may be passed after hearing the petitioners – claimants and the respondent authority and after taking into account the order dated 16.2.2012 and present order. Appropriate fresh order as regards the said application exhibit 47 may be passed after hearing the petitioners – claimants and the respondent authority and after taking into account the order dated 16.2.2012 and present order. The proceedings from the stage when the said application exhibit 47 came to be filed shall commence afresh and appropriate orders including final judgment and order may be passed afresh in accordance with law and in light of the material available on record. It is clarified that this court has not expressed any opinion on merits as regards the issue regarding limitation / delay and / or about the merits of the reference cases and this order is not to be construed as expression of this Court’s opinion on the merits of the case. With the aforesaid clarification and direction the petition is disposed of.