JUDGMENT :- These Appeals have been referred to me by the Hon'ble the Chief Justice, pursuant to a Judgment and Order of the Division Bench of this Court due to their conflicting views, for deciding the question raised in their Judgment and Order dated 20th and 21st October, 2005 passed by the Division Bench in First Appeal No.251 of 1996 with First Appeal No.1476 of 1996; in accordance with the provisions of Section 98(2) of the Civil Procedure Code, 1908. There has been difference of opinion between two of my Learned Brother Judges R.M.S. Khandeparkar, J. and V. M. Kanade, J.

2. A brief summary of the facts of this case is as follows :

On 16th February, 1980, the State of Maharashtra issued a notification under Section 126(4) of the Maharashtra Regional Town Planning Act (hereinafter the 'MRTP Act') for acquiring land of the Respondents/claimants for the purpose of development. Thereafter the Special Land Acquisition Officer (hereinafter the SLAO) passed an award and granted compensation at Rs.4/- to Rs.6/- per sq.mtr. on 12th February, 1986. On 19th February, 1986, the notice under Section 12(2) of the Land Acquisition Act, 1894 (hereinafter the Act) was issued. On 5th June, 1986, reference application under Section 18 of the Act were filed with the Collector in the above Appeal. It is the contention of the Appellant that there was a 65 days delay in filing the reference u/s.18 of the Act with the Collector/SLAG. The said contention was neither raised nor proved before the Reference Court. The Collector forwarded the reference to the Court for its determination without raising any objection as to the bar of limitation. The Reference Court while deciding the reference finally did not deal with the question of limitation nor was it an issue. Even in the Appeal Memo of the State of Maharashtra before this Court in the First Appeal there is no objection as to the reference being barred by limitation. To put it in other words, the objection regarding limitation was orally raised by the Appellant for the first time after 19 years, at the time of final hearing of the above Appeal, and that too orally.

3. At this juncture, I deem it fit to first reproduce Section 18 of the Act and thereafter mention the points on which there is a difference of opinion between two of my Learned Brother Judges. Section 18 of the Act reads as under :

"(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 determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objections 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 Collectors award;

(b) In other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2); or within six months from the date of the Collector's award, whichever period shall first expire."

4. The following two questions arise, in view of the difference of opinion between the two Learned Judges:

a) Can the Appellant be permitted to raise the issue of limitation for the first time as a preliminary objection, during the oral arguments, without even making an application to amend the Appeal Memo and without affording an opportunity to the Respondents to oppose the same?

b) If the Appeal Memo is permitted to be amended, whether this issue of limitation ought to be remanded back to the Reference Court, so as to enable both the parties to lead evidence on the factual aspect with regard to this issue of limitation?

5. The Supreme Court while dealing with the scope of Order 41 of the Code of Civil Procedure held in Bhagwa

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