The State of Maharashtra Through the Special Land Acquisition Officer Vaitarna Hydro Electric Project Vs Shri Ashok Laxman Wani - Citation 360694 - Court Judgment

Judgment:

Swatanter Kumar, C.J.

1. Common, but, question of some significance in law arises for consideration of the court in all these Appeals. Despite liberal construction of application of law of amendment in Appeals before the Court of competent jurisdiction, we are called upon to determine the issue, as to whether the provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 are applicable to the proceedings including the Appeal proceedings arising under the Land Acquisition Act, 1894 and if the answer is in the affirmative, what is the scope and limitation of such application. To examine various facets of this, reference to the facts giving rise to these Appeals would be necessary.

2. Vide its judgments dated 4th May 1996, 17th January 1997, 22nd August 2005 and 29th August 2005, the Joint District Judge, Raigad at Alibaug, answered 23 Land References made to it by the Collector under Section 18 of the Act. Aggrieved from the enhancement granted under the impugned judgments, the State filed present Appeals for reduction of the compensation awarded, while the Claimants being dissatisfied from the compensation awarded to them by the learned Court, have come before this Court for enhancement of compensation.

3. Government of Maharashtra issued a Notification under Section 4 of the Act on 24th September 1986 proposing to acquire huge chunk of land from revenue estate of Village Padaghe, Taluka Panvel, District Raigad for a public purpose, namely, New Bombay Project. Declaration under Section 6 was issued on 10th May 1987. The SLAO exercising the powers of the Collector made and published his Award under Section 11 of the Act on 18th September 1989 awarding compensation to the Claimants at the rate of Rs. 4/- per sq. mtr. The Claimants appeared to have accepted the compensation without prejudice and filed References under Section 18 of the Act claiming compensation at the rate of Rs. 50/- per sq. mtr. which was subsequently amended to Rs. 500/- per sq. mtr. These claim petitions, presented before the S.L.A.O. on 8th November 1989, were referred to the Reference Court by the Collector on 29th November 1989. The parties produced documentary and oral evidence before the Reference Court. The Reference Court pronounced its judgments and answered the Reference in L A R Nos. 158 of 1989, 145 of 1989, 147 of 1989 and 148 of 1989 on 4th May 1996 enhancing the compensation payable to the Claimants at the rate of Rs. 160/- per sq. mtr. While awarding this compensation to the Claimants, the Reference Court primarily relied upon the report of the Valuer which was prepared by Economist of CIDCO, Exhibit 53, and calculated the cost of the land in proportion to the cost of project. While relying upon the cost in the area of steel market which was developed as Kalamboli. The Valuer arrived the price of the developed plot was fixed at Rs. 475/- per sq. mtr. It also noticed the fact that the price of the developed land in the year 1986-87 was about Rs. 346/- per sq. mtr. Reliance was also placed upon the land sold by CIDCO and MIDC. After the appreciation of this evidence, the Reference Court awarded the compensation taking it to be the just and fair market value of the land prevalent at the relevant time i.e. as on 24th September 1986.

4. In all, 23 References were answered by the Reference Court. Against the judgment of the Reference Court, 19 Appeals have been preferred by the State praying for reduction of compensation and/or restoration of the Collector's Award, while in 15 State Appeals the Claimants have filed Cross-Objections claiming enhancement of the awarded amount. The Claimants have also filed 8 Appeals claiming the same relief. During the pendency of these proceedings, 19 Civil Applications have been filed by the Claimants for amendment either in their respective Appeals or in the Cross-Objections filed by them primarily praying for substituting the amount of Rs. 500/- per sq. mtr. claimed by them on account of compensation for acquisition of their lands to Rs. 5000/- per sq. mtr. Furthermore, 10 Civil Applications also have been filed by the Claimants in some of the Appeals/Cross Objections seeking leave of the Court to place additional documents, i.e Exhibits 'A' to 'D' to their respective applications, on record. These documents are (i) the judgment of the court in the case of State of Maharashtra v. Trimbak J. Thakur AIR 2008 BR 196 (First Appeal No. 646 of 1995 decided on 21st June 2007); (ii) plan showing acquired land and its surrounding areas prepared on the basis of the visit of the Architect on 24th March 2008; (iii) letter of allotment dated 16th October 1984 allotting the land for a weight bridge in truck terminal at Kalamboli; and (iv) letter dated 18th August 1997 allotting land for shopping-cum-residential use. It may also be mentioned that in some of the cases, a common prayer has been made for amendment and for leading additional evidence limited to placing the judgment in Trimbak Thakur (supra) on record.

5. Civil Application Nos. 2677 of 2006, 3421 of 2007, 3784 of 2007 and 3783 and 3784 of 2008 are for bringing the legal representatives of the deceased Claimants/ Respondents on record. There is a delay in filing the Applications. The Applicants have also prayed for setting aside the abatement. There is no objection. Delay in filing the Civil Applications is condoned. Abatement is set aside. There is no opposition to the Civil Applications for bringing the legal representatives on record and consequently they are allowed. The legal representatives of the deceased Respondents/ Claimants would be entitled to the benefit of this order in accordance with law and subject to just exceptions. These Civil Application are accordingly disposed of.

6. Civil Application No. 7209 of 2007 has been filed by the State for praying for stay of the judgment and award of the learned Reference Court. As the main judgment in the Appeal itself is being pronounced, this Civil Application does not survive for consideration and is accordingly disposed of. Scheme of the Act in relation to matters in controversy in the present Appeals.

7. Let us first examine the relevant provisions and scheme of the Land Acquisition Act. A Notification under Section 4 of the Act is commences a definite step towards acquisition proceedings which in its nature and substance is compulsory acquisition proceedings. After following the prescribed procedure under Sections 5A, 6 and 9 of the Act, the Collector exercises his powers to conduct complete enquiry and makes an Award under Section 11 of the Act. The enquiry by the Collector as contemplated under Section 11, relates to measurements, value, claims and all other ancillary matters thereto. The Award so made by the Collector attains a status of finality and is status of conclusive evidence between the Collector and the persons interested of true area and value of the land and apportionment of compensation amongst the interested persons in terms of Section 12 of the Act. In determining the amount of compensation, the Court is to be guided by provisions contained in Sections 23 and 24 of the Act except to the extent of making a correction of clerical errors under the scope of Section 13A of the Act. Once the Collector forwards the application under Section 18 to the Reference Court for determination, becomes functus officio in regard to acquisition proceedings in so far as his power and authority under Part II of the Act is concerned.

8. Part III of the Act deals with reference to the Court, procedure to be followed thereupon, and rights of interested persons under Section 18 of the Act who has not accepted the Award or accepted it without prejudice to his rights enabling him to move an application to the Collector with the matter or reference by the Collector for determination of the Court, his objections as to measurement of land, amount of compensation and the person to whom it is payable or apportionment of such compensation amongst the interested persons. In other words, in an application under Section 18(1) of the Act, the Applicant is expected to raise a challenge to the awarded compensation by the Collector in his Award under Section 11 of the Act and in terms of Section 18(2) of the Act, the application shall state the grounds on which the objection to the Award is being taken. In other words, application under Section 18 is not a mere formality but is exercise of a substantive legal right in the manner specified in the provisions.

9. Once the provisions of law states how a right is to be exercised, then the right should normally be exercised in that manner alone and no other. The expression 'shall'' has been cautiously used by the Legislature which indicates its intent that the application should state grounds on which objection or exception to the Award is being taken. It is expected of the Applicant to be aware of what was the value of his land at the time of issuance of the Notification under Section 4 of the Act as that date alone is relevant for determining compensation payable to the Claimants. He is at liberty to raise all factual and legal objections. This is a reference by the Collector to the Court of competent jurisdiction and proceedings of reference are expected to be carried out in accordance with law. Proviso to Section 18(2) spells out a limitation within which the application contemplated under Section 18 of the Act is to be filed. The period of limitation depending on the facts of a given case would be six weeks to six months. Six months being the outer case limit, in either of the events, where the Applicant was present before the Collector at the time when the Award was made or where he was served with a notice under Sub-section (2) of Section 12 of the Act. This specific period of limitation is mandatory and is not flexible either in its term or by any enunciated principles of necessary implication. In fact, this legal issue is no more res integra and stands finally settled by the judgment of the Supreme Court in the case of Mahadeo B. Patil v. State of Maharashtra : AIR2005Bom262 , where referring to Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer : [1962]1SCR676 and State of Punjab v. Satinder Bir Singh : [1995]2SCR255 , the Court held as under:

14. We are here not concerned with the correctness of the decision, but the fact remains that having considered the claim of the appellant for compensation, the Special Land Acquisition Officer rejected the claim. This does amount to the making of an award, commonly described as 'nil award'. If the appellant was aggrieved by such an award, it was open to him to seek reference under Section 18 of the Act which the appellant actually did. We, therefore, cannot hold that no award as envisaged by Section 11 of the Act was declared on 29/8/1994, since the claim of the appellant was considered and was totally rejected. There was, therefore, no question of giving any calculation of the manner in which the compensation was computed. Since, the application under Section 18 was not filed within six weeks of the receipt of notice under Section 12(2) of the Act, the High Court did not commit any error in holding that the application was barred by limitation. It was not disputed before us that the Land Acquisition Officer making a reference, or the Court considering a reference under Section 18 of the Act has no power of condonation of delay in making an application under the aforesaid section.

10. Even a Division Bench of this Court while following the above principles, held in the case of The State of Maharashtra v. Sadashiv Ganpat Avhad and Ors. First Appeal No. 251 of 1996, decided on 31st January 2008, as under:

18. 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 for a 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. 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 -12- Section 18 of the Acquisition Act. That being the settled position of law, again it will be futile for the Courts to accept the contentions raised on behalf of the claimants for remanding the matter to the Court of the learned Joint District Judge....

19. In the light of the enunciated principles and the documents available on record before us, it is not required of this Court to remand the matter to the learned Joint District Judge. The reference applications have thus been erroneously decided by the learned Joint District Judge, in fact, under a mistaken impression of fact and law both. All the above appeals of the State thus necessarily should be allowed and we hereby allow the same, set aside the judgment of the reference Court in favour of the appellants in the above noticed appeals, while leaving the parties to bear their own costs.

11. From the above analysis of the above settled principles of law, it is clear that the limitation prescribed under Section 18 of the Act is inflexible, uncondonable and is capable of rigid interpretation. Its effect on the merits of the case, we shall proceed to discuss shortly.

12. The requirement of law is that in a application under Section 18 of the Act, the Claimant should state the grounds on which objection to the Award is taken and it should be comprehensive enough to require the Applicant to state with exactitude what compensation he desires to receive as a result of disposal of his objection and particularly what is the deficiency in amount of compensation awarded to him, guided by the requirement of determination of compensation under Sections 23 and 24 of the Act. This view would find support from the language of Section 19 of the Act where the Collector while making a reference has to provide information to the Court in writing, amongst others, stating the details of land, names of persons interested, amount awarded and particularly give the grounds on which the amount of compensation was determined if whether the objections raised by the applicant relating to deficiency or otherwise of the amount of compensation determined. The language of these two provisions clearly indicate that the requirement is not a mere formality or expects the applicant to make vague averments. The applicant as well as the Collector is expected to adhere to the requirements of law in this regard.

13. The Claimants get two opportunities before the Collector to clearly state the amount of compensation which they actually claim for acquisition of their respective lands. They are within their rights to lead such evidence and raise such objection in regard to measurement, valuation or otherwise in pursuance to the notice issued under Section 9 and prior to passing of an Award under Section 11 of the Act. The Collector is to form a distinct opinion as to what compensation, in his opinion, should be allowed for the land acquired, where after he has to send such an Award for approval to the appropriate Government and then alone would make the Award public. Secondly, after the pronouncement of the Award, while making an application under Section 18 of the Act, the Claimants can state the amount which they wish to claim while raising an objection with regard to quantum of compensation awarded to them and the grounds in support thereof that too within the period of limitation prescribed under those provisions. Once that stage is over, the Claimants would be bound by the amount stated by them in their reference application. In the scheme, the legal provisions, it appears to us that the Claimants may not be bound by their admission made in response to Section 9 notice in regard to quantum of compensation claimed in an application under Section 18 of the Act.

14. Section 25 of the Act places an obligation upon the Reference Court that it cannot award an amount less than the amount awarded by the Collector. In other words, so to say, the Award made by the Collector is final in absolute terms vis-a-vis the Government and Court can only enhance it to the extent of the amount claimed by the Claimants in the reference petition under Section 18 of the Act. The Award so made by the Court in its judgment would then become a decree within the meaning of Section 2 Clause (2) and Section 2 Clause (9) of the Code of Civil Procedure.

15. By the Act of 68 of 1984, Section 25 of the Act was amended with effect from 24th September 1984. The unamended provisions of Section 25 placed an embargo upon the authority of the Court to award excess compensation to the amount awarded by the Collector, in some cases. It provides that when an applicant has made a claim for compensation pursuant to any notice given under Section 9, then the amount awarded to him by the Court shall not exceed the amount so claimed or be less than amount awarded by the Collector under Section 11 of the Act. Secondly, when the applicant has refused to make any such claim or has omitted without sufficient reason to make any such claim, the amount awarded by the Court shall not exceed the amount awarded by the Collector. Still further, when the applicant has omitted for sufficient reason to make such a claim, the amount awarded by the Court shall not be less than the amount awarded by the Collector. All these three stages were relatable to the claim made by the Claimant in furtherance to a notice under Section 9 of the Act. The purpose was not to grant amount higher than the amount awarded by the Collector -16- except in one case where it could exceed the amount awarded by the Collector.

16. By amendment of Section 25, the restriction placed upon the power of the Court to award limited compensation has been removed. Thus, determination of compensation in excess of the amount awarded under Section 11 award is permissible. What amount is now claimed by the Claimants for acquisition of their lands may be much in excess to the amount claimed by them before the Collector in response to the notice issued under Section 9 and the Court can award an amount in excess thereof. However, the extent of claim obviously would be controlled by the amount stated by the Claimants in their reference petition under Section 18 of the Act. The proceedings before the Court are initiated by virtue of a reference made under Section 18 of the Act, as a reference proceedings. The Claimants have no right to commence the proceedings before the Reference Court directly on their own within the ambit and scope of Section 18 of the Act. The Collector is expected to comply with the requirements of Section 19 before he forwards a reference while ensuring that the reference has been filed within the prescribed period of limitation and thus satisfying the requirements of provisions of Section 18(1) of the Act. The Scheme of the Act appears to be that the Claimant would be bound by the amount claimed in his Reference Petition, it being remedy of limited jurisdiction and being initiable only upon a reference in accordance with law. There may be cases where the Claimants have not been able to take advantage of this channel of legal remedy and could not file References under Section of the Act, in that event they could take recourse to the proceedings under Section 28A of the Act praying before the Court for redetermination of the compensation. In terms of Section 28A, where the Court allows to an applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same Notification under Section 4, Sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they have not made an application to the Collector under Section 18, by written application within three months from the date of the Award of the Court, claim that amount upon re-determination.

17. Section 28A thus was introduced in the Statute book to provide a kind of alternative remedy and an opportunity to all aggrieved parties whose lands have been acquired by the same Notification even if they were not able to invoke the remedy of Section 18 and where one or more persons relating to some Notification of acquisition of same lands have received higher compensation by award of the Court. It introduces a kind of an election of remedy by a party, may be out of necessity, mistake or compulsion. Though, these two independent legal remedies are available to a claimant, but are completely distinct and different remedies. One can be invoked when award under Section 11 is made by the Collector with reference to the provisions of Sections 18 and 19 of the Act, while in the other, after award under Section 11 has merged into an order of the court and court awards higher compensation, the claimants who had not taken recourse to the proceedings under Section 18 would directly approach the Collector for redetermination of the compensation in terms of Section 28A of the Act while relying upon the judgment of the court. However, in both events, the law specifies the limitations within which the respective remedies can be invoked.

18. The claimant could even lawfully elect not to take recourse to the legal remedy available to him under Section 18 of the Act and await till the judgment of the court of competent jurisdiction enhancing the amount of compensation awarded by the Collector in relation to same Notification and in the case of similarly situated persons. Thus, the law is tilted in favour of the Claimants, and offers them protection even without entering into prolonged litigation of the proceedings under Section 18, they could directly take recourse to the provisions of Section 28A in accordance with law. But having once taken recourse to the provisions under Section 18, they are bound by the results and cannot, in law, alter that petition in regard to amount of compensation after the period prescribed is over.

19. Once the proceedings before the Court of competent jurisdiction are commenced either by way of a reference or under Section 28A, the provisions of the Code of Civil Procedure are applicable to those proceedings in so far as they are not inconsistent with the provisions of the Act in terms of Section 53 of the Act. Two prominent expressions in Section 53 are 'save in so as far as they may be inconsistent with anything contained in this Act' and 'the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act'. The provisions of Section 53 of the Act are applicable to proceedings before the Court and not the Collector. The provisions of the Civil Procedure Code therefore would be applicable to the proceedings before the Court under the Act i.e. in proceedings taken by the Court in furtherance to the reference made by the Collector under Sections 18 and 19 or the proceedings initiated by the Claimants under Section 28A of the Act. Another limitation of the application is that such provisions of the Civil Procedure Code should not be inconsistent with the provisions of the Act. Even to the proceedings in Appeal before the Court, the provisions should be applicable as to the Appeals from original decrees and Section 54 of the Act states that to which Court further an Appeal would lie.

Applicability of provisions of Order 6 Rule 17 read with Order 41 Rule 3 of the Code of Civil Procedure.

20. The law relating to amendment of pleadings had been construed quite liberally and noticing its impact on administration of justice and inevitable delays in conclusion of the proceedings, the Legislature by Code of Civil Procedure (Amendment) Act 2002 amended Rule 17 of Order 6 with effect from 1st July 2002. Amended Order 6 Rule 17 reads as under:

17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.;

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

21. The language of the amended Rule was quite distinct and intended to limit the scope for dealing with the applications for amendment as is obvious from the following language of unamended Rule 17:

22. Still the Court even under the amended provisions, has been vested with very wide powers and may allow either party to alter or amend his pleadings at any stage. The amendments have to be made which are necessary for the purpose of determining real question between the parties. However, it is obligatory upon the Court to examine that no application for amendment should be allowed after the trial has commenced unless the Court arrives at the conclusion that the party claiming amendment, despite due diligence, could not have raised the matter before the commencement of the trial. This obviously is intended to prevent, firstly, carrying out of unnecessary or casual amendments by the parties intended to delay the proceedings and, secondly, after commencement of the trial, additional burden is placed upon the applicant seeking amendment to satisfy the Court with regard to above requirements. While amending these provisions, the Legislature also amended Rule 18 of Order 6 to ensure that the amendments allowed by the Court are carried out within the granted time and where no time was granted by the Court, within fourteen days from the date of the order where after the parties shall not be permitted to amend the pleadings unless again a specific order of extension is passed by the Court.

23. The object of the amendments is to achieve expeditious disposal of cases and to ensure that law relating to amendments is not abused by a party to the proceedings. Wherever an amendment is permitted by the Court after recording its satisfaction in accordance with these provisions, the same may be carried out within the specified time. The provisions of Order 6 Rule 17 are applicable to appeals as well. A party would be entitled to make an application for amendment of his pleading in accordance with law and subject to satisfaction of the prescribed conditions. Under the unamended as well as the amended law, the principle has not changed that the amendments which are forbidden by law or would be impermissible in face of provisions of the limitation, need not be allowed. The applicability of these provisions of the Code to the proceedings pending before the Court while exercising the powers of the provisions of the Act and its extent has been subject matter of some legal controversy in the past.

24. The learned Counsel appearing for the Claimants-Applicants while relying upon the judgments of the Supreme Court in the case of Harcharan v. State of Haryana (1982) 2 SCC 408, Bhag Singh and Ors. v. Union Territory of Chandigarh : AIR1985SC1576 , Ghaziabad Development Authority v. Anoop Singh and Anr. : [2003]1SCR522 , and a Single Judge judgment of this Court in First Appeal No. 700 of 1989 (State of Maharashtra v. Sitaram B. Bhoir) on 14th March 2008, to argue that the Claimants are entitled to amend their pleadings in the appeal in relation to factual matrix as well as enhancing the claim of compensation made by them in their Petition under Section 18 of the Act before the Collector. It is argued that the amendment is bona fide and is based upon the fact that judgments have been delivered by the Court in different cases and CIDCO for whose benefits the lands were acquired have been selling land at the rate of Rs. 10,000/- per sq. mt. and above and as such they desire to amend their claim and they wanted to increase the claim from Rs. 500/- per sq. mtr. to Rs. 5000/- per sq. mtr.

25. While relying upon the case of Harcharan (supra), emphasis is laid where the Supreme Court considered the question that because of delay of six years, the amendment could be disallowed and while referring to the principle of procedural law it is intended to facilitate and not to obstruct the course of substantive justice the amendments sought were allowed.

26. In Bhag Singh (supra), the Supreme Court had examined the necessity for requiring the State to do what is fair and just to citizen and the compensation for acquisition of the land of the claimants should be paid on the basis of the market value of the land determinable at the time of acquisition.

27. In Ghaziabad Development Authority (supra), the Supreme Court held as under:

7. As in the above case, in the instant case too, the award was passed by the Land Acquisition Officer and the Reference Court earlier to the effective date of substitution of Section 25. Hence, the limitation on the power of the court to award compensation as enjoined by the pre-amended section would be attracted. However, there is a formidable impediment for the appellant to take shelter under the pre-existing Section 25. On a petition filed by the claimant, the application dated 11/7/1967 wherein compensation was claimed at Rs 20 per square yard was allowed to be amended by an order of the Reference Court passed in the year 1983. It is to be noted that by virtue of Section 53 of the Land Acquisition Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the court unless they are inconsistent with anything contained in the Act. In the light of this provision, the High Court rightly held that there is no bar under the Land Acquisition Act to file a petition for amendment of the claim application in regard to the quantum of compensation claimed as there is no provision in the Land Acquisition Act which is inconsistent with the power to allow amendment. The effect of allowing the amendment is to substitute the figure of Rs 20 by Rs 100 per square yard. When once this amendment is recognized and taken note of, it is obvious that the bar under Section 25 does not get attracted. Whether this amendment could have been permitted in the face of the unamended Section 25 has not been put in issue before the High Court in specific terms. Even in the SLP we found, in vain, any ground questioning the order allowing the amendment. No doubt, a party has right to challenge a non-appealable order in an appeal against the decree as laid down in Rule 1-A of Order 43. But, the fact remains that the legality or propriety of the order permitting amendment was neither specifically challenged before the High Court nor a specific ground taken that it was contrary to Section 25. At this stage, the appellant cannot be permitted to assail the correctness of the order permitting amendment. If that be so, the first contention based on the pre-existing Section 25 has to be necessarily rejected.

The above dictum of the Supreme Court has been heavily relied upon by the Applicants-Claimants.

28. The learned Counsel for the Claimants while referring to these judgments and emphasizing that the provisions of Section 18 do not contemplate any specific claim being raised by the applicant argued that mere protest would suffice the compliance of provisions of Section 18 and ultimately submitted that the application for amendment of the claim for market value, the Court has unrestricted powers and provisions of Section 18(2) of the Act do not in any way affect grant of such application and prayed for allowing the amendment.

29. It was argued on behalf of the State that all the above judgments of the Supreme Court do not lay down any ratio decidendi which would be applicable as a legal precedent to be applied uniformly in relation to law of amendment to the proceedings under the Land Acquisition Act. According to her, the Supreme Court has repeatedly rejected the request of the Claimants in the cases before it for receiving higher compensation by paying additional Court fee. Reliance in this regard has been placed upon the case of M. Govinda Raju and Anr. v. Special Land Additional Land Acquisition Officer and Anr. : AIR1996SC2660 . Reliance was also placed upon the judgment of the Supreme Court in the case of Scheduled Caste Coop. Land Owning Society Ltd. v. Union of India : AIR1991SC730 , where the Court took the view that redetermination of compensation under Section 28(1) is not applicable where the Claimant has sought and secured a reference under Section 18 and has even preferred Appeal before the High Court. Further, the Court also took the view that the Applicants were not entitled to claim higher compensation after a considerable delay by paying the Court fee as the society had restricted its claim to Rupees Four lakhs and against the order of the learned Single Judge, no further remedy was availed.

30. This was again followed by a judgment of the Constitution Bench of the Supreme Court in the case of Buta Singh (dead) by LRs v. Union of India : (1995)5SCC283 , where the Court held as under:.we are of the opinion that the decision rendered by a two-Judge Bench in the case of Chand Kaur had failed to notice the decisions rendered subsequent to the decision in the case of Bhag Singh, in particularly the decision in the case of Scheduled Caste Coop. Land Owning Society Ltd.' which explained the earlier two decisions. It is, therefore, obvious that the decision rendered in the case of Chand Kaur is per incuriam, inasmuch as, the attention of the Bench was not invited to a three-Judge Bench decision in the case of Scheduled Caste Coop. Land Owning Society Ltd. which was holding the field. The decision in Chand Kaur case, thus being per incuriam, does not in fact consciously differ from the decision in the case of Scheduled Caste Coop. Land Owning Society Ltd. We, therefore, put the matter beyond the pale of doubt by stating that the law as laid down in the decision in Scheduled Caste Coop. Land Owning Society Ltd. is correct and should hold the field; we approve of it and, therefore, the subsequent decision in the case of Chand Kaur to the extent it conflicts with the view taken in that case cannot be said to be laying down the correct law. We dispose of the reference to this Bench accordingly and the matter will now go back to the appropriate Bench for disposal in accordance with law laid down in Scheduled Caste Coop. Land Owning Society Ltd., hereby affirmed and approved by us.

31. It is contended on behalf of the State that the Ghaziabad Development Authority (supra) case does not enunciate the relevant principles of law, after appropriate discussion which could be applied as good precedent of law to a subsequent case, as it primarily discussed the effect of amendment of Section 25 on the claim petitions. To buttress the submission on behalf of the State, further argued that the applications which are barred by time for amendment should not be allowed and in this regard reliance was placed on the case of Dattaram V. Dharwadkar and Anr. v. Ghanashyam G. Bhende and Anr. : (2002)4BOMLR445 , and judgment of the Supreme Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors. : (2004)3SCC392 , where the Court reiterated with approval the principles in L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. : [1957]1SCR438 , that in case the claims which are barred by limitation on the date of the application, the Court would as a rule decline such amendment.

32. The law of limitation would have a limited application to the cases under the provisions of the Land Acquisition Act inasmuch as to permit amendment of pleadings as a matter of routine may result in great prejudice to either of the parties and may even be against specific provisions of law. In the above-referred judgments of the Supreme Court, it is not stated as an absolute proposition of law that amendment of petition filed under Section 18 of the Act can be permitted as a matter of course. Further, with respect, we are unable to contribute to the view expressed by the learned Single Judge of this Court in the case of Sitaram B Bhoir (supra) and Scheduled Caste Coop. Land Owning Society Ltd. (supra), as it does not appear to be correct exposition of law. It is not really necessary for us to examine the judgment relied upon by the Claimants in the present case as they have been discussed in great elaboration by the Supreme Court itself in the case of Union of India v. Pramod Gupta and Ors. : AIR2005SC3708 , where the Court examined all these cases and enunciated the law under the heading `amendment of reference and additional evidence'. The relevant part of the judgment reads as under:

132. We have noticed hereinbefore that before the Land Acquisition Collector the respondents had claimed only a sum of Rs 12,000 per bigha. Despite the same the respondents filed an application purported to be under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the memo of appeal and the reference claiming higher compensation. The respondents appear to have further filed applications under Order 41 Rule 27 of the Code for adduction of additional evidence in support of their amended claim. The High Court while rejecting the claim application filed by the appellants allowed the application for amendment as also the application for adduction of additional evidence filed by the respondents.

133. Mr Salve submitted that the bar under Section 25 of the Act must be considered having regard to Section 53 thereof which provides for applicability of the provisions of the Code of Civil Procedure. The learned Counsel urged that the respondents had already filed an application for amendment of the memo of appeal in terms of Order 41 Rule 3 of the Code of Civil Procedure, which having been allowed, would amount to amendment of the claim application in the reference case itself. Strong reliance in this behalf has been placed on Harcharan v. State of Haryana and Ghaziabad Development Authority v. Anoop Singh.

134. We do not agree. The pleadings before the trial court are the basis for adduction of evidence either before the trial court or before the appellate court. By amending the memo of appeal the original pleadings cannot be amended. The respondent claimants made their claim before the Reference Court claiming compensation for the lands acquired under two different references at a certain rate. They are bound by the said pleadings. Section 53 merely provides for applicability of the provisions of the Code of Civil Procedure including the one containing Order 6 Rule 17 thereof. Order 6 Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings. Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several factors including viz whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event the application for amendment may not be allowed. (See Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & Co., Heeralal v. Kalyan Mal and Sangramsinh P. Gaekwad v. Shantadevi P Gaekwad).

135. Delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. The High Court neither assigned sufficient or cogent reasons nor applied its mind as regards the relevant factors while allowing the said application for amendment. It has also not been taken into consideration that the application for amendment of pleadings might not have been maintainable in view of statutory interdict contained in Sub-section (2) of Section 25 of the Act, if the same was applicable.

136. In Anoop Singh whereupon reliance has been placed by Mr Salve, the Division Bench of this Court did not have any occasion to consider that decisions of this Court in Krishi Utpadan Mandi Samiti v. Kanhaiya Lal and B.V. Reddy which, it will bear repetition to state, are authorities for the proposition that once it is held that Section 25(2) of the Act would be attracted in a given case, the parties are estopped and precluded from claiming any amount higher than that claimed in their claim petition before the Collector. An observation made to the effect that an application under Order 6 Rule 17 would be maintainable having regard to Section 53 of the Act, with utmost respect, does not constitute a binding precedent. No ratio has been laid down therein and the observations made therein are without any discussion. Furthermore no reason has been assigned in support of the said proposition of law.

137. In Harcharan also this Court did not address the question as to whether Order 6 Rule 17 would be applicable in relation to the original claim petition or memo or appeal.

33. The amendment of Memorandum of Appeal has to be understood in complete distinction to amendment of Reference Petition under Section 18 of the Act. The Petition filed before the Collector is in compliance of a statutory provision and can only be filed within the prescribed period of limitation. The provisions of Order 6 Rule 17 of the Code of Civil Procedure would have no application to the proceedings before the Collector even with the aid of Section 53 of the Land Acquisition Act and Collector does not act as a Court within the meaning of Section 3(d) of the Act. In other words, there will be no occasion for an applicant to amend his application under Section 18 of the Act particularly when the period of limitation specified under Section 18(2) is over. It is a settled principle of law that the Collector empowered even to refuse to make a Reference and reject the same if it is barred by time. The Collector or the Court, for that matter, have no jurisdiction to condone the delay in filing an application under Section 18 of the Act. In other words, a Petition under Section 18, if filed within time, will be referred to Court and would be incapable of being altered or amended with the aid of procedural provisions provided under the Code. The provisions of the Code are procedural in nature, while the provisions of the Land Acquisition Act are statutory and binding. The Land Acquisition Act is a special enactment intended to prescribe procedure and is a Code in itself particularly in relation to the proceedings taken under Part II of the Act and the Collector upon making a Reference under Section 18 of the Act, loses its control and jurisdiction over such proceedings.

34. The law of amendment which will enable a party to amend the Memorandum of Appeal could normally relate to certain circumstances, like potential, location of the acquired land or reference to certain transactions which for bona fide reasons and despite due diligence could not be placed before the Court. In law, it would be difficult to hold that a Reference Petition which has been filed before the Collector within time can be amended in relation to quantum and can be altered after the prescribed period of limitation is over. Section 18(2) of the Act prohibits certain dealings and proceedings after expiry of the prescribed period and what cannot be achieved directly can also not be achieved indirectly by adopting recourse to the procedural law. The procedural law cannot frustrate a substantive right that has accrued in favour of one of the parties to the proceedings. It is an admission of a party of which the other party would be fully entitled to take advantage, where every Claimant would know and at least is expected to know that the Collector is to fix the market value of the land as on the date of acquisition i.e. when Section 4 Notification is issued. The stage of issuance of notice under Section 9 of the Act is much later in point of time by which they are expected to collect all the evidence that may be necessary for proper determination of the claim of compensation. Even thereafter when Award is made under Section 11, the Claimants are at liberty to raise an issue for receiving higher compensation even more than the compensation which they may have claimed in response to the notice under Section 9 of the Act. A Claimant being fully aware of his rights and having sufficient time to prepare his application for making a Reference to the Court of competent jurisdiction, is expected to state grounds and his objections as to why the amount awarded by the Collector is not acceptable to him, while also stating the amount and grounds on which he claimed higher compensation. The application under Section 18 cannot be termed as a mere formality, but it is besides being a statutory application is an admission of facts and grounds stated therein by the party concerned. Withdrawal of an admission as a rule is impermissible, of course, to certain extra ordinary exceptions, permissible under the law.

35. The learned Counsel appearing for the Claimants while referring to the provisions of the Land Acquisition Act argued that the function of the Collector under Section 18 is a ministerial function and the forwarding of a reference is merely a duty for commencing of the proceedings for reference petition. With the aid of the provisions of Section 53 of the Act, the provisions of Civil Procedure Code are applicable to reference proceedings, therefore, amendment can be carried out at any stage of proceeding under Section 18 of the Act. Section 3(d) of the Act defines 'Court' which means a Principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer to exercise such powers within the specified limits to perform function of the Court. There can be no doubt to the position of law that the Collector while exercising powers under this Act is not a 'Court' within the meaning of the provisions of the Act and for that matter even under legal parlance. Once an application is presented before the Collector and it conforms to the requirement of Sections 18 and 19 of the Act, even then the Collector has power to reject the reference if it is barred by time as the Collector or the Court for that matter have no power to extend the period prescribed under Section 18(2) of the Act. Thus, it is not correct to say that the function of the Collector is merely ministerial or can be effected without application of mind. Section 19 places an obligation upon the Collector to apply his mind, see if the reference is within time and satisfy the requirement of Section 18 before forwarding the reference for determination of the Court of competent jurisdiction in accordance with law. The Collector while exercising such powers does not have the trapping of a Court and to that extent provisions of the Code of Civil Procedure per se would not be applicable to the proceedings before the Collector. Admittedly, once the matter comes within the realm of the Court, the provisions of the Code of Civil Procedure would be applicable with the aid of Section 53 of the Act again and only to the extent they are not in conflict with the provisions of the Act. If a petition has become barred by time, then the provisions of the Code cannot be utilized for the purposes of defeating the bar which emerges from the specific provisions of the Act. Merely because subsequently a law is amended and/or a judgment is pronounced which may give some benefit by itself would not be a sufficient ground for permitting an amendment which at the face of it is impermissible in law.

36. Even under the provisions of old Section 25 of the Act, the expression `as may a claim' and the `amount so claimed' were referable under Section 9 of the Act. In other words, there was a bar in the way of the applicant to claim compensation higher than what he had claimed in response to a notice under Section 9(1) and/or (2) of the Act. Section 9 under the old as well as the new law requires the Collector to give a public notice stating that Government intends to take possession of the land, and that claims to compensation for all interests in such land be made to him and further requires the applicants-claimants later than 15 days, to submit their interest in the land, and the amount and particulars of the claim of compensation and their objections, if any. The applicant was expected to submit the specific amount of compensation he claims for acquisition of his lands. But after amendment of Section 25, the Legislature in its wisdom lifted the bar and granted liberty to the claimant that while filing an application under Section 18, they could claim any higher amount than what was claimed in response to a notice under Section 9 and such claim would no way hamper their right to challenge the award with complete freedom and regarding quantum. These are not the cases where the applicants have either omitted or have not chosen to pursue or have not filed their applications under Section 18 within the prescribed time.

37. The learned Counsel for the Claimants also made a reference to the format provided under the Maharashtra Land Acquisition Manual in relation to making of an order under Section 18 of the Act. While relying on the said form, it is stated that this form does not contemplate mentioning of any amount. This argument is misconceived. The format referred to in the Manual is not the form of the application which the Claimant is required to submit under Section 18 of the Act but it is a form of the order which is to be passed by the Collector while referring the matter to the Court. The relevant form is 'VI'. It reads as under:

Case No. 19

VI. Reference to the Court under Section 18 WHEREAS A. B., son of , has not accepted the award a copy of which is hereto annexed (Repeat Form V) made by me under Section 11 of Act I of 1894, and has required by the accompanying application (dated _____________) that the matter be referred to the Court, I hereby make the reference to the Court of the Ground on which the (A copy of the award amount of Compensation relevant portion was determined : should accompany)

Nature of the objection taken to the award.

SCHEDULE: Particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested.

Dated 19 Collector.

38. The bare reading of the above form shows that it is not even to be signed by the applicants nor it is required to be filled in by the applicant. This order of reference is in conformity with the provisions of Sections 18 and 19 of the Act. At the cost of repetition we may say that the application of the Claimant under Section 18 of the Act has to be in conformity with the requirements of law i.e. to state the amount, grounds of objections and grounds in support thereof and the reasons why the Claimant claims higher compensation amount than the one awarded by the Collector. Thus, this argument is also of no avail to the applicants.

39. Besides this legal position that emerges from the above judgments and the provisions of the Land Acquisition Act, let us also examine the aspect of prejudice to the parties.

40. The claimants are expected to act vigilantly and raise their appropriate claim for acquisition of their lands. However, even if the Claimants, despite exercise of due diligence, are not able to make an appropriate claim for determination of market value of the land as on the date of issuance of Section 4 notification, in response to notice under Section 9 of the Act, still after amendment of the provisions of Section 25 of the Act, they can raise the claim for a higher amount in an application under Section 18 of the Act. As already noticed, these provisions require the applicants to submit their objections and grounds, interalia, for inadequacy of the compensation awarded to the claimants and claim such other amount as they deem fit and proper. The legislative intent appears to be that there should be appropriate and expeditious disposal of land references. The scheme of the Act does not contemplate amendment of Section 18 petition at a subsequent stage. In view of the legislative protection provided, there is hardly any prejudice being caused to an applicant-claimant if amendment to Petition is denied as it is the duty of every interested person to act diligently and in accordance with law.

41. On the contrary, if Petition under Section 18 is permitted to be amended at a late stage, it is likely to result in prejudice to the State or the acquiring authority. They will hardly be in a position to defend prayer for enhancement and the matter would have to be remanded to the court of reference which again would result in delay of conclusion of proceedings and lastly such an approach does not appear to be permissible under the provisions of the Act.

42. Reverting back to the judgment of the Supreme Court in the case of Pramod Gupta (supra), the court has already discussed the judgments relied upon by the claimants. It was noticed in this case that claimants would be bound by their pleadings before the Collector. The court will have to consider that the claimants intent to resile from an express admission made by them and the observation in Gaziabad Development Authority case (supra) was not a binding precedent for no ratio having been discussed in the judgment as well as in Harcharan's case, where the court did not address the question as to whether Order 6 Rule 17 would be applicable in relation to petition under Section 18. In the case of Ghaziabad Development Authority (supra), the Supreme Court had stated the principle that where a question in relation to amendments are allowed are not put up in issue before the High Court in specific terms, then the Court particularly when a party has a right to challenge an order otherwise or in any case in memorandum of appeal even if it was not appealable and once the order permitted amendment is neither specifically challenged nor taken up in the grounds of memorandum of appeal, the appellate Court will not interefere with such a plea.

43. In the light of the recent judgment of the Supreme Court in the case of Pramod Gupta (supra). which provides the reasoning, discussion and which appropriately discusses the previous judgments of the Supreme Court referred by the Petitioner would be a binding precedent.

The judgment and the specific dictum spelled out in the judgment of Pramod Gupta (supra) provides the clear ratio decidendi to the court for answering the matters in issue in the present petition.

44. For the reasons afore-recorded, we are of the view that the provisions of Order 6 Rule 17 read with Order 41 Rule 33 of the Code of Civil Procedure cannot be resorted to amend the application filed by the claimants under Section 18 of the Land Acquisition Act in so far as it relates to enhancement of the amount of compensation claimed. However, the provisions of amendment under the Code can be invoked in amending the memorandum of appeal or a petition before the reference court in so far as it relates to other matters pertaining to pleading and/or evidence, e.g. location, potential of the acquired land, sale instances which would benefit the applicants to justify the amount claimed under Section 18 and which could not be brought before the Court by them despite due diligence. In other words, amendment of memorandum of appeal should be understood in distinction to amendment of an application filed before the Collector under Section 18 of the Act.

45. Having discussed various legal aspects of the questions involved in the present Appeals, now we would even proceed to discuss the application for amendment in the alternative. Even if we were to assume that provisions of Order 6 Rule 17 of the Code of Civil Procedure can be invoked in amending a petition under Section 18, even then on merits the present applications ought to be dismissed. The claim petitions under Section 18 were filed by the applicants on 8th November 1989, while the Notification under Section 4 of the Act was issued on 24th September 1986. Obviously, prior to filing of the application for reference, the Claimants had claimed compensation and contested the proceedings before the Collector in respect to the notice under Section 9 of the Act. The claim petition in turn were referred to the Reference Court which made its Award and judgment on 4th May 1996 after a lapse of nearly seven years. During the pendency of these petitions, the Claimants filed an application for amendment of the claim petition on 10th August 1994 which was allowed vide order dated 24th August 1994 and the Claimants claimed compensation at the rate of Rs. 500/- while they had initially claimed it at the rate of Rs. 50/- under Section 18 of the Act. The parties led evidence on this basis and finally vide Award dated 4th May 1996, the Reference Court granted compensation at the rate of Rs. 160/- per sq. mtr. to the Claimants. These Appeals were filed by the State as well as the Claimants in the years 1996 and 1997 onwards and since then these Appeals have been pending, while the Civil Applications for enhancing the compensation claim from Rs. 500/- to Rs. 5,000/- and seeking amendment have been filed in the year 2004 and onwards after a lapse of more than seven years. It is doubtful whether the amendment applications filed by the Claimants could have been allowed by the learned Reference Court, but since there is no challenge to that order before us and the Appellants had already accepted the amendment and led evidence in that regard, we are not entering into that controversy in the present Appeals primarily for want of challenge and that parties by their conduct accepted the said amendment and faced the trial before the learned Reference Court. The conduct of the applicants is such that they would not be entitled in equity and law from claiming such an amendment. Firstly, when they filed an application for amendment before the Reference Court, they were in a position and ought to have asked for the amount whatever they wanted to. They opted to amend their petitions and claim compensation only at the rate of Rs. 500/- per sq. mtr. that too after a lapse of more than seven years from the date of filing the application for Reference. Again, when the present Appeals were filed, they waited for a period of seven years before they filed the present applications. The Claimants cannot wait indefinitely and then ask for amendment after such a prolonged and unexplained delay. The present application for amendment obviously suffers from the defect of delay and laches. Even reference to the judgment of this Court in First Appeal No. 646 of 2004 (supra) does not advance the case of the applicants any further. The Reference Court, in those cases, already had granted compensation at the rate of Rs. 200/- to Rs. 230/- per sq. mtr. and in those Appeals, the Claimants in their Appeals, at the first instance, had asked for compensation at the rate of Rs. 2000/- to Rs. 2200/- per sq. mtr. Which were filed in year 1995 though relating to the same Notification and adjacent villages. In other words, even before they filed the Appeal, the amount claimed by other claimants in those Appeals was well known and at least it would be expected to be known.

The present applicants fairly would have knowledge or deemed to have knowledge of those appeals where the claimants had claimed compensation at the rate of Rs. 2000/- to Rs. 2200/- per sq. mtr. Now, suddenly raising the claim at the rate of Rs. 5000/- per sq. mtr. is not only a belated attempt on the part of the applicants but even lacks bona fide. In support of their claim, they have attempted to file some documents, such as, map, judgment of this Court in First Appeal No. 646 of 1995 and letter dated 16th October 1984 issued by CIDCO giving a piece of land for weigh bridge on lease for 60 years at the rate of Rs. 1873.28 per sq. mtr. This, in any case, would not advance the case of the Applicants even in regard to the prayer made for leading additional evidence. The application similar to the application for amendment is belated and is an application which lacks bona fides. These letters are of the year 1984 referred in Land References and against the judgments out of which First Appeal No. 646 of 1995 arises, were passed in the year 1993 and they must have been well within the knowledge of these Applicants. More so, the applications are vague and one a mere attempt to delay the present proceedings. We also cannot ignore the fact that the State Government would have to accrue further liability for payment of statutory interest on the enhanced compensation for the period during which these proceedings are pending. There is no justification made out by the Applicants to show that the present Civil Applications are bona fide and the prayers made should be granted as, despite due diligence and care, they were not in a position to bring on record the documents and to lead additional evidence besides prayer for amendment of the claim petition.

46. Another aspect of these Applications for amendment is that the claim now sought to be amended by the Applicants is hit by the provisions of Section 18(2) of the Act as they would be deemed to be barred by time. It is a settled principle of law that the provisions of Order 6 Rule 17 for amending a plaint even cannot be permitted where the claim has become barred by time and the application for amendment is moved after undue delay. Reference in this regard can be made to the case of K. Raheja Construction Ltd. v. Union of India : [1995]3SCR960 .

The Collector and the Court had no power to condone the delay, which obviously means that whatever claim they have raised while making Reference under Section 18 of the Act before the Collector would bound the Applicants.

47. Still another argument which can be fairly addressed against -48- the Applicants is that they are trying to withdraw an admission made by them with full awareness of the law and the consequences thereof. Under Section 17 of the Evidence Act, admission has been defined as a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances stated in the Act. Statement of a fact made by a party to a proceeding are admissions. Under Section 18, the persons who have any proprietary or pecuniary interest in the subject matter of the proceeding and who make a statement in their character of the persons so interested are admissions. Keeping in view the scope of Sections 18 and 19 of the Act, admission of fact is made by the applicant by referring to the amount of compensation they claim as true market value of the acquired land. No doubt, it is obligatory upon the State to pay true market value of the acquired land to the claimants, but it has to be in accordance with law. Once the Collector makes his award, then the onus shifts to the applicants to show that their objections in regard to extent of compensation are justifiable and the amount claimed by them in that application is payable to them. They are bound by the admission and are expected to prove their claim in accordance with law.

48. Reliance on behalf of the State was also placed upon the principle of estoppel as it creates a bar that prevents the Claimants from making higher a claim was right that contradicts what they had claimed earlier in an application under Section 18 of the Act. There is no justification on record to show as to why the Applicants should be permitted to withdraw such definite admissions when even no circumstances have been suggested. As held in the case of P.B. Gupta (supra), withdrawal of admission cannot be permitted as a matter of routine and the party which made the admission normally would be bound by such admission.

49. The cumulative effect of our above discussion of well settled principles of law is that the present Civil Applications for amendment as well as for leading additional evidence suffer from the defect of delay, laches and even lack bona fides. These Civil Applications, if allowed at this stage, would certainly cause serious prejudice to the non-Applicants. Resultantly, all these Civil Applications are dismissed as not maintainable as well as on merits.

Merits of the Appeal

50. During the course of argument, the learned Counsel -50- appearing for the Claimants also referred to the letter of September 2007 which was placed on record during the course of hearing stating that the Government had decided to acquiesce to the to the judgment of the Court dated 21st June 2007 passed in First Appeal No. 646 of 1995 and argued that they are entitled to the amount of compensation claimed by them. The learned Counsel appearing for the State then informed the Court that the State had not preferred any Special Leave Petition against the judgment of the Court. In these circumstances, the judgment has attained finality and, therefore, the Claimants would be in any way entitled to the compensation at the rate of Rs. 500/- per sq. mtr. as claimed by them.

51. It has been brought on record that first notification under Section 4 of the Act was issued on 1st February, 1970 as this notification lapsed. In view of the amended provision of the Land Acquisition Act, the State Government issued a fresh notification under Section 4 on 24th September, 1986. On lapsing of the first notification and upon acquisition of the lands vide the second notification dated 24.9.1986, as already noticed, SLAO while exercising the power of the Collector vide his award dated 18th September, 1989 granted compensation at the rate of Rs. 4/- per sq. mtr. The possession of the land was taken in October, 1989. Section 18 petitions had been filed upon which the reference court enhanced the compensation payable to the claimants at the rate of Rs. 160/- per sq. mtr. in respect of the lands from village Padgha as well village Roadpali. The compensation was granted between Rs. 200/- to Rs. 230/- per sq. mtr., depending upon the location of the land, vide his award dated 4.5.1996. The appeals in regard to village Roadpali have been disposed of by this Court by First Appeal No. 646 of 1995. In the present case, the learned reference court while making the award and enhancing the compensation at the rate of Rs. 160/- observed as under:

35. The above observation make it clear that if the other evidence of the sale of the similar land is not available, then this type of the evidence be considered for working out the market value of the land. Here, the claimants' valuer in his valuation report has shown some instances made by the acquiring body. The evidence of the witness of the acquiring body also shows the instances made by the acquiring body at the time of Notification, which I have considered. In addition to this I have already stated that these lands face a draw back. These lands are situate on the boundary of the development plan and there are no free access or the road to go to the acquired lands. In addition to this the judgments, produced on behalf of the claimants are challenged in the appeals. The view taken by my predecessor has not been finalized. For all these reasons, I find it very difficult to ascertain the market value of the land at the claimant.

36. We usually see considering the present we estimate about the future, but we do not find for estimating things of past things of future considered. Therefore, considering the land value awarded in those judgments, which were not in existence at the time of the Notification, I find it difficult to go back because this evidence came into existence after 7 years of the date of the Notification. This is not the proximate time allowing me to consider to be an instance on or about the date of the Notifications.

37. Counsel of the claimants also relied on the judgments of Nos. 172 of 1986 and 168 of 1986 of the lands situated in village Ambetarghar, which is adjoining to village Padaghe towards the West. These lands were notified in the year 1970. In the year 1977 compensation was awarded at the rate of Rs. 90/- psm. Counsel submits that considering the ratio of appreciation, the claimants be awarded compensation at the rate of Rs. 500/- psm. I find it very difficult to accept this contention. In existence of sales made by the acquiring body at the time of the Notification or in proximate of the date of the Notification, if available and relied by both the parties, then it will not be better for me to consider the market value on the rate of appreciation which will not provide justification to the acquiring body. In this case the claimants also claimed compensation at the rate of Rs. 100/- psm. But actually claimed compensation at the rate of Rs. 50/- psm. disclosing the reason that the claimants had no amount to pay the Court fee, so less claim was made. Later on the references were amended and they claimed compensation at the rate of Rs. 500/- psm. for accepting the market value at the rate of Rs. 500/- p.m. Absolutely from all the angles, there is no evidence with the claimants. The market value, after all is a value of the bonafide sale transaction passed by the buyer to the seller, and this is the value which provides satisfaction and justification to the seller and also to the buyer, having realizationed knowledge about the market value of the land at the time of making reference, the claimants made claim of Rs. 100/- psm. On the basis of the valuation report and judgments, which were not relied in the petition, but produced in Court, after 7-8 years, enhanced the claim. I think this conduct of the claimants is not fair. I do agree they have right to claim this much amount of compensation for the acquired lands. But at the same time it is their duty to express their satisfaction in showing definite market value of the land before making the initial claim. Shri Ambike on oath specifically stated that there is no any kind of development on the acquired lands. Still the lands are lying as barren lands. For all these reasons, I find the market value of the land should be Rs. 160/- psm. which provides satisfaction to the buyer and seller. I award the same. Hence the order.

52. As is evident from the above discussion, the main reliance was placed upon the report of the expert valuer and the letters issued by CIDCO in relation to sale of plots from the same vicinity. According to the claimants, as CIDCO had sold the land at much higher price, they are entitled to compensation at the rate of Rs. 500/- per sq. mtr. while according to the State, the compensation awarded by the reference court is much on the higher side and should be reduced, if not, restore it to the award of the Collector.

53. During the course of arguments, the learned Counsel appearing for both the parties fairly conceded that the evidence led, documents produced and deposition of the witnesses is similar to that of LAR No. 138 of 1990. This award which was made on 23rd December, 1993 was available to the reference court which passed the award under appeal and furthermore that village Roadpali is adjacent to village Padghe. Thus, the judgment of this Court in First Appeal No. 646 of 1995 decided on 21st June, 2007 shall squarely cover the issue of fact and law even in the present appeals. In First appeal No. 646 of 1995, after detailed discussion, this Court held as under and granted the following compensation to the claimants:

23. Thus, in view of the above stated principle, we have to make substantial deduction from the price that we determine with particular reference to the facts of the present case. Certain areas have been developed. Even the purpose for which the lands were acquired had potential, but it does not mean that at the time of acquisition, the same could be compared to a developed area or an area which was totally commercial and was capable of fetching much higher price than that a willing purchaser would buy in relation to the acquired lands. We have also held that we cannot blame the parties and particularly the claimants that they have not produced and proved any sale-deeds on record. There were no sale-deeds executed right from 1970 to 1984 and it was only already developed land which was given on perpetual lease by the authorities/Corporation for commercial or other purpose. Mainly, three instances are available on record which have been proved in accordance with law and have to be considered for determining the fair market value of the lands. First instance is an allotment letter dated 16th October 1984 vide which an area of 420 square metres being plot No. 413 at Kalamboli, Navi Mumbai, was allotted on 60 years' lease for total premium of Rs. 7,06,777. This instance was proved by the witness No. 1 Shrikrishna, who stated and who gave rate of the plot at Rs. 1873.28 per square metre. The letter of allotment showed that water and power supplies were available; and charges were to be paid directly by the allottee to the authorities concerned. Another witness Karyal, on behalf of the Claimants, also made a reference to this instance, and also stated that CIDCO had developed wholesale steel market in the year 1980 by planning an area of 305 hectares. In his statement he has further stated that in regard to the sale of Anusuya for the purpose of petrol pump the land was leased out by way of tender; and it was at the rate of Rs. 240 per square meter. The other instance is a lease-deed dated 2nd May, 1986 which was proved and placed on record. In the submission of this witness, the instance was, where the plot in question was given at a premium of Rs. 345.87 per square metre; and this was with regard to the plot admeasuring 2250.24 square metre. Still another instance which was proved by the Claimants is with regard to the plot which was admeasuring 1466 square meters given for a weigh bridge at the rate of Rs. 2727 per square metre.

24. All the above instances relate to village Kalamboli. From Exhibit 15, the map, it is clear that the location of these lands is nearer to the highway and is part of the already developed area, i.e., steel market or industrial area. Certainly, the lands in question are neither developed to that extent nor entire lands about the national highway. The instances that have been referred to by the acquiring authority related to the lands which are much farther away from the acquired lands and the developed area. The respondents did not lead any evidence before the learned reference Court, and only relied upon the record of the acquiring authority. On the basis of the instances proved by the Claimants, it is clear that there has been an increasing trend in the values of the lands surrounding the acquired lands; but that itself would not entitle the Claimants for the same compensation for which the property was leased out or leasehold rights were created by the Corporation. These lands were given after they were fully developed where commercial development had taken place, water and electricity were available, roads and other essential amenities were duly provided for and that all would form part of the costs of development, which have to be deducted from the compensation to be given to the claimants. The Court would also have to consider that in the award in LAR No. 172 of 1996, the learned reference Court had awarded R.90 per square metre in the year 1977. The lands in question were acquired 7 years later i.e. In the year 1984. Merely three instances referred to by the Claimants as well as a petrol pump instance can hardly form the basis for determination of the compensation. Since we have found that the instances referred to are of the lands which are fully developed they cannot be taken into consideration and therefore, we have taken the average of two instances referred to in paragraph 23 above; and have computed the amount of compensation by deducting 25%. That is how the compensation has been worked out by us at the rate of Rs. 1725/- per square metre with statutory benefits as contemplated under Sections 23 and 23(1A) of the Land Acquisition Act.

25. In the result, the Appeals are dismissed. Consequently, the Cross Objections are partly allowed. All Civil Applications stand disposed of. No order as to costs.

54. As in the present case, the applications for amendment have been rejected and the claimants would be entitled at best to claim the amounts which they had claimed by amending their petitions before the reference court i.e. at the rate of Rs. 500/- per sq. mtr. The evidence discussed in the judgment under appeal clearly shows that in the MIDC area, development was started in the year 1968 and there are number of industrial area adjacent to village Roadpali and Village Padghe is only divided by a river. This has come in evidence and there is hardly any dispute in that regard. As per the valuation report Exhibit 47, it was stated that in village Kalamboli, there was a premium of Rs. 1837.28 per sq. mtr. when it was given for a weigh bridge for 60 years lease. It is a settled principle of law that the development on commercial or even residential plots would not reflect the true market value for an agricultural lands which have been acquired as large chunk. Be that as it may, the compensation granted by the reference court in the judgment under appeal is in no way unreasonable or unfair. It is to be enhanced in terms of the judgment of this Court in different cases.

55. The Claimants, thus, would be entitled to the full claim for compensation claimed by them i.e. at the rate of Rs. 500/- per sq. mtr.

56. The above order would be applicable to all the Appeals and the Cross-Objections except in the four Appeal Nos. 1510 of 2006 to 1513 of 2006 where the Claimants had claimed compensation at the rate of Rs. 1000/- per sq. mtr. in their applications under Section 18 of the Land Acquisition Act. However, before the trial Court as well as before this Court in their Appeals, they have restricted their claim to Rs. 400/- per sq. mtr. and they paid Court Fee before the Courts on that quantum. In other words, they have not pressed their claim for any sum higher than Rs. 400/- per sq. mtr. and no steps were taken by them before this Court even to make up the deficiency in payment of Court Fee and/or take any other steps relating to amendment or otherwise in these Appeals. Thus, keeping in view the judgments of the Supreme Court in the case of Govinda Raju (supra) and Scheduled Caste Coop. Land Owning Society Ltd. (supra), these Claimants would be entitled to claim and are granted compensation at the rate of Rs. 400/- per sq. mtr. with all other statutory benefits.

56. In view of the above discussion, the Appeals filed by the State are dismissed, while the Appeals and the Cross-objections filed by the claimants are allowed. They are granted compensation at the rate of Rs. 500/- per sq. mtr. with all other statutory benefits in accordance with law, except First Appeal Nos. 1510/2006, 1511/2006, 1512/2006 and 1513/2006, where the Claimants are granted compensation at the rate of Rs. 400/- per sq. mtr. with all statutory benefits in accordance with law. Resultantly, all the Appeals and Applications are disposed of with no order as to costs.

Subject	Property;Civil
Court	Mumbai High Court
Decided On	Jul-31-2008
Case Number	First Appeal No. 1119 of 1997 in L.A.R. No. 158 of 1989, First Appeal Nos. 1199 of 1996, 829, 866, 8
Judge	Swatanter Kumar, C.J. and ;A.P. Deshpande, J.
Reported in	2008(6)ALLMR65; 2009(1)MhLj856
Acts	Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 17 and 18 - Order 41, Rules 3, 27 and 33 - Order 43, Rule 1A; Land Acquisition Act, 1894 - Sections 3, 4, 5A, 6, 9, 9(1), 9(2), 11, 12, 12(2), 13A, 18, 18(1), 18(2), 19, 23, 23(1A), 24, 25, 25(2), 28A, 53 and 54; Code of Civil Procedure (CPC) (Amendment) Act, 2002; Evidence Act - Sections 17
Appellant	The State of Maharashtra Through the Special Land Acquisition Officer, Vaitarna Hydro Electric Proje
Respondent	Shri Ashok Laxman Wani;special Land Acquisition Officer and anr.
Appellant Advocate	G.P Mulekar, Assistant Government Pleader and ;S.G. Surana, Adv. in F.A. Nos. 1510 to 1513 of 2006
Respondent Advocate	R.V. Pai and ;S.S. Kulkarni, Advs.

The State of Maharashtra Through the Special Land Acquisition Officer, Vaitarna Hydro Electric Project Vs. Shri Ashok Laxman Wani - Court Judgment

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