1. Heard learned Counsel for the appellants, learned A.G.P. for respondent No.1 and learned Counsel for the respondent No.2.

2. Being aggrieved by the judgment and decree dated 25/09/2019 by 3rd Joint Civil Judge Senior Division, Akola in Land Acquisition reference Nos. 09/2015, 10/2015, 11/2015 and 12/2015, the present appeals are filed by the appellant. Relevant facts can be summarized as under:

3. The appellants were owners of field survey Nos.5, 20/1, 18/1 and 18/1-A, admeasuring 1.50 HR, 4.21hr, 4.3 HR and 4.3 HR of lands respectively situated at Batwadi Bk., Taluka Balapur, Dist. Akola. The Government has acquired 1.50 HR, 1.46 HR, 2.56 HR and 1.22 HR lands out of these land. The respondents have acquired this land as the same was coming under submergence while expansion of dam for construction of plant for respondent No.2. Notification under Section 4 of the Land Acquisition Act (hereinafter referred as ‘ the’) was published on 24/07/2008. Final Notification under Section 4(1) of thewas published on 15/12/2008. Notification under Section 6 was issued on 12/03/2009. Award was passed on 28/05/2010 awarding compensation @ Rs.99,000/- per hectare.

4. The appellants were not present before the Collector when the awards were passed. Copy of awards were also not provided to the appellants/claimants along with the notice issued under Section 12(2) of the. The appellants applied for certified copy of award on 23/02/2011 and received the same on 24/02/2011. Till that time the respondent has not supplied copy of award. On getting copy, the appellants filed reference under Section 18 of thefor enforcement of compensation @ Rs. 10,00,000/- and Rs.12,50,000/- per hectare. The 3rd Joint Civil Judge Senior Division by the judgment and decree dated 25/09/2019 dismissed the reference. The main ground of challenge to the order passed by Reference Court is that without framing issue of limitation, the Reference Court dismissed the reference case only on the ground of limitation. The appellants have not got sufficient opportunity to lead the evidence and to file documents on this point in absence of issue. Secondly, the appellants neither were present before the Collector when award was passed nor they have received copies of award with notice issued to them under Section 12(2) of the. They filed reference petitions on 06/04/2011 after receiving the certified copies on 24/02/2011. Therefore, the reference petitions are filed well within limitation. The Reference Court erred in law in holding that the reference case petition is filed beyond limitation. It is pointed out by the learned Counsel for the appellants that a Reference Court has come to the conclusion that the appellants have duly established that the Special Land Acquisition Officer has paid inadequate compensation and the market value of the land on the date of notification under Section 4(1) of theis more, however, rejected the claim on the ground of limitation. The learned Counsel for the appellants therefore, pray for setting aside the judgment and decree passed in L.A.R. Nos.09/2015, 10/2015, 11/2015 and 12/2015 and to allow the Land Acquisition References.

5. The learned Counsel for the appellants also submitted that the learned Reference Court wrongly place burden of proving negative facts on the appellants when this burden was on the respondent to prove that the copy of award supplied along with notice.

6. The learned Counsel for the appellants relied on Divya Exports Vs. Shalimar Video Company; (2014)16 SCC 194 [LQ/SC/2011/1167] , Gannmani Anasuya and others Vs, Parvatini Amarendra Chowdhary and others; (2007)10 SCC 296 [LQ/SC/1999/1084] , Premji Natthu Vs. State of Gujrath and another; (2012)5 SCC 250 [LQ/SC/2000/765] .

7. As against this learned A.G.P. vehemently argued that the order passed is perfectly justified. Issue of limitation is a question of law that can be taken up at any point of time and can be decided without framing issue. The learned A.G.P. also further argued that the burden is on petitioner/applicant to establish that he has not received copy of notice or award. It is not necessary to lead evidence in this regard.

8. Heard both the parties at length considered citation placed on record. It is apparent that no issue is framed by the learned Reference Court on the point of limitation. The learned Reference Court held that issue of limitation even though is not framed can be discussed or/and decided as it is a legal issue going to the root of the case. The learned Trial Court further observed that as claimants clearly stated that the award dated 28/05/2010 came to their knowledge after service of notice under Section 12(2) but the time spent in obtaining certified copy of the award, that period needs to be excluded. The learned Reference Court further observed that there is no evidence regarding benefits of exclusion of time required for obtaining certified copy on the admission of claimants that they have received the notice regarding acquisition of land and failed to place on record copy of notice and failure to place on record any documentary evidence the learned Trial Court held that the reference is barred by limitation. It is observed by the learned Reference Court that if the award is not made in absence of presence of the person interested, the reference can be made during six weeks of the receipt of the notice from the Collector as contemplated under Section 12(2) and if he was neither present nor received the notice then the reference can be made within six months from the date on which he actually or constructively came to know about contents of the award. If the notice is received after six weeks from the date of the notice then the period will commence from the date of notice and not the period of six months will be available to the petitioner.

9. In my considered opinion, the learned Reference Court totally erred in deciding issue of limitation without framing the same and without granting any opportunity to lead evidence to that effect to the appellants. For the sake of convenience, Section 12 of Land Acquisition Act, 1894 is reproduced as under:

“12. Award of Collector when to be final – (1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.”

In view of this Section a duty is cast upon Collector to give notice and award such an opportunity to the person interested as are not present personally or by by their representative when the award is made. It will also be beneficial to quote Section 18 of thewhich reads as under:

“18. Reference to Court- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.

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

10. Proviso to Section 18 clearly states that if the person is not present when the award is passed by Collector he shall file his objection within six weeks of the receipt of the notice from the Collector under Section 12 Sub Clause 2, or within six months from the date of the Collector’s award whichever period shall first expire. It appears that learned Reference Court relying on the letter issued by the Collector presumed that notices were issued on 15/02/2011 calling claimants for accepting compensation on 21/02/2011. The references filed on 05/04/2011 are beyond limitation. The learned Reference Court though admitted that there is no mention that when the notices were served upon the claimants, he placed burden of establishing the date on which the claimants received the notice. Failure to place the copy of notice by the claimants, the learned Reference Court drawn adverse inference against the claimants. As held in Premji Natthu (supra) along with notice issued under Section 12(2) of the Act, land owner who is not present or not represented before the Collector at the time of making of award should be supplied with the copy of award so that he may effectively exercise the right under Section 18(1) to seek reference to the Court.

11. On behalf of the State Government no evidence was produced before the Reference Court to show that the copies of awards were sent to the appellants along with the notice. The learned Reference Court committed serious error while drawing adverse inference against the claimants specifically when the burden of proving the fact that copy of award was supplied along with the notice was on the respondent. In Premji Natthu (supra) Hon’ble Apex Court relied on Harish Chandra Raj Singh Vs Land Acquisition Officer, AIR 1961 SCC 1500, wherein the Apex Court was called upon to decide whether the expression “date of award” is to be interpreted with reference to the time when the award is signed by the Collector or from the date the affected party comes to know about the same. The Hon’ble Apex Court in Harish Chandra(supra) held that :

“5. Therefore, if the award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the cannot be reasonably excluded. Thus considered 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; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words ‘the date of the award’ occurring in the relevant section would not be appropriate.

6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the Office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. 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. 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. 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 ‘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 actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words ‘from the date of the Collector's award’ used in the proviso to Section 18 in a literal or mechanical way.”

12. Initial burden is discharged by the appellants that they were not present when the awards were passed which can be inferred from the notices issued by the respondent under Section 12(2) of the. They also established that copies of awards were not supplied along with notice from the fact that they required to obtain certified copy of the same. Even though the claimants admitted that they have received the notices, it can not be presumed that they have the knowledge of contents of the award. There is nothing on record placed by the respondent to show that they supplied copy of award along with the notice. It is unreasonable to ask appellant to prove the negative facts. Supply of copy of award as held in Raja Harishchandra Rajsing and Premji Natthu (supra) is essential for effective exercise of rights vested in the appellant to seek reference under Section 18(1). This order passed by the Reference Court is patently erroneous. It is necessary to frame the issue of limitation before recording finding as there are mixed question of law and fact are involved. It is not purely a question of law as it is necessary to establish that notices were served along with copies of award and the date on which the service of notice was effected. The learned Reference Court though observed that the compensation awarded by S.L.A.O. is inadequate and market value of the land on the date of notification under Section 4 Sub Clause 1 of the was Rs. 1,48,164/-, however, the relief was not given on the ground that reference is barred by limitation. In view of Section 18 (b) it is necessary for calculating the period of limitation, the date of service of effective notice and therefore it is also necessary to frame the issue of limitation and allow the parties to lead evidence to that effect. It is not the case that the parties are agreed that copy of award received along with the notice. In that circumstances, there might not be any necessity of framing issue of limitation. As such the appeals deserve to be allowed in following terms.

ORDER

1. First Appeal Nos. 42/2021, 47/2021, 118/2021 and 122/2021 are partly allowed.

2. Common judgment passed in Land Acquisition Case Nos. 09/2015, 11/2015 and 12/2015 dated 25/09/2019 is hereby quashed and set aside.

3. The matter is remanded back to the Civil Judge Senior Division at Akola for framing issue of limitation and allow the parties to lead evidence on that issue.

13. No order as to costs.

14. Parties to appear before the Reference Court on 11/07/2022. As the date is already fixed, no formal notice will be required to the parties.