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Judgment
Alladi Kuppuswami
This appeal is preferred by the first respondent in O. P. 254 of 1967 on the file of the Subordinate Judge''s Court Vijayawada which was a reference under sec. 18 of the Land Acquisition Act made by the Special Tahsildar, Land Acquisition, Central Railway, Vijayawada, for determining the compensation payable to the claimants for their property of an extent of Ac. 4-51 of land in R. S. No. 359/2A and 359/2C in Gollapudi village. The said property was acquired for providing additional Down Yard facilities for the railway junction at Vijayawada. The notification u/s 4 (1) of the Land Acquisition Act was made on 17-2-1966. Even before the notification, possession was taken with the consent of the owner on 1-11-1965 Notices under Sec. 9(1) and 9 (3) of the Act were served on the owner, and the enquiry was held between 1-6-66 and 4-6-66. The land is owned by a Society called Sankara Mathalya Vidya poshakasangham. It appears that the president of the Sangham submitted a petition on 4-6-66, for extension of time for filing a statement. It is not clear from the records whether the extension asked for was either granted or refused, but subsequently no claim statement was filed on behalf of the owner. The Land Acquisition Officer gave his award on 13-3-67. He came to the conclusion that the proper compensation for the land acquired was Rs. 6,000/- per acre. The appellant claimed compensation at the rate of Rs. 12,000/- per acre. The appellant made an application dt. 26-4-67 requesting that the matter may be referred to the court for adjudication. Accordingly, a reference was made under sec. 18 of the Land Acquisition Act to the Sub-Court. Vijayawada. Counter affidavits were filed on behalf of the appellant as well as the Land Acquisition Officer. The learned Subordinate Judge came to the conclusion that Rs. 10,000/- per acre was a just and reasonable compensation for the lands under acquisition. He however, took the view that appellant had not filed any claim before the Land Acquisition officer, the court was precluded from granting any compensation in excess of the compensation awarded by the Land Acquisition Officer by reason of the Provisions of Sec. 25 (2) of the Land Acquisition Act. He therefore, held that the claimant was not entitled to the enhanced compensation which was found by him to be just and reasonable for the lands acquired. In the result, he held that the claimant was entitled only to the amount awarded by the Land Acquisition Officer.
The appellant has preferred the above appeal against the judgment and award of the learned Subordinate Judge.
On behalf of the appellant Sri Veerabhadrayya raises the following contentions.
(1) The court below was not justified in holding that the appellant was not entitled to claim compensation in excess of the compensation awarded by the Land Acquisition Officer.
(2) The Claimant is entitled to compensation at the rate of Rs. 12,000/- per acre and the court below was not right in holding that the reasonable compensation was only Rs. 10,000/- per acre.
In regard to the first contention it is submitted that the Land Acquisition Officer in his counter to the reference application did not raise the contention that the appellant was not entitled to any compensation in excess of the compensation awarded by the Land Acquisition Officer by reason of Sec. 25 (2) of the Act. All that was stated was that the compensation awarded by the Land Acquisition Officer was reasonable and ought not to be enhanced. The learned Subordinate Judge was wrong in Suomotu considering this question and holding that in view of Sec. 25 (2) of the Act the appellant is not entitled to claim compensation more than what was awarded by the Land Acquisition Officer even though according to his view the reasonable compensation was Rs. 10,000/- per acre. In any event he submitted that the Court below ought to have given an opportunity to the appellant to satisfy the court that he omitted to make a claim for a sufficient reason and hence Sec. 25 (2) is not applicable.
Before dealing with this contention it is necessary to state a few facts which are relevant for this purpose.
In the award it is stated that notices under Sec, 9 (1) and 9 (3) were duly published and served. The actual notices however were not produced before the court. It is also mentioned in the award that the president of the Sangam sent a petition requesting for a short adjournment for filing the statement, but no statement was filed subsequently even. The petition referred to also does not form part of the record and it is not clear whether that petition was either ordered or rejected. Though it is admitted that no claim in writing was made it is not claimed from the record whether any claim regarding compensation was made orally before the Land Acquisition Officer.
Section 25 of the Act is in the following terms :
25 (1). When the applicant has made a claim to compensation, pursuant to any notice given u/s 9, the amount awarded to him by the court shall not exceed the amount so claimed or be less than the amount awarded by the Collector u/s 11.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the court shall in no case exceed the amount awarded by the Collector.
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector.
Reference to "such claim" made in section 25 (2) must be read in the light of section 25 (1) which refers to the applicant making a claim to compensation pursuant to any notice given under Sec, 9. It therefore, follows that refusal or omission to make a claim under Sec. 25 (2) would also refer to a claim pursuant to a notice under sec. 9. In order that Sec. 25 (2) may be attracted therefore, the following conditions have to be satisfied.
(1) There must be a notice under sec. 9 of the Act.
(2) The applicant must have refused to make a claim pursuant to that notice or must have omitted without sufficient reason to make such claim.
It is only if these conditions are satisfied it is provided that the amount awarded by the court shall not exceed the amount awarded by the Collector. It is argued on behalf of the appellant, therefore, that these conditions which are to be satisfied before sec. 25 (2) is attracted have to be brought to the notice of the court by means of a pleading to that effect by the Land Acquisition Officer. Unless the Land Acquisition Officer objects to the award of compensation in excess of the amount awarded by the Collector for the reasons stated in sec. 25(2) it is not open to the court sue motu to deny the just compensation to which the appellant would be entitled in the ordinary circumstances of the case. On the other hand, it is contended by the learned Government Pleader that this sanction places an embargo upon the Court from granting compensation in excess of the amount awarded by the Collector, provided not doubt, the conditions referred to in sec. 25(2) are satisfied. It is therefore, open to the court and it is even the duty of the court if it comes to the notice of the court that the appellant either has refused to make a claim or omitted without sufficient reason to make a claim, to see that the amount awarded by the court does not exceed the amount awarded by the Collector. There is nothing in this section which precludes the court from considering this question sue motu. It is not necessary that there should be an objection to the payment of the excess amount by the Land Acquisition Officer or a pleading to that effect.
The learned Government Pleader no doubt agreed that even if the court suo motu considers the question whether the claimant is entitled to an amount in excess of the amount awarded by the collector when he has refused to make such claim or has omitted without sufficient reason to make such claim, the court is bound to give an opportunity to the appellant to satisfy the court that he has in fact made a claim or that there was sufficient reason for omitting to make a claim He however, submitted that in this particular case such an opportunity has been in effect, given to the appellant. Even if this court came to the conclusion that no such opportunity was given, the proper course for this court is to remand the case with a direction that an opportunity should be given to the appellant to satisfy the court that the conditions of sec, 25(2) are not complied with either because no notice had been given to the appellant or because the appellant has made a claim though not in writing, or because there was sufficient reason for omitting to make a claim.
For the purpose of this case we consider that it is unnecessary to deal with the extreme contention that he court has no jurisdiction to consider the question whether under sec. 25(2) the claimant is entitled to any amount in excess of the amount awarded by the Collector when no objection is raised in the counter by the Land Acquisition Officer and there is no issue to that effect in the court below. There may be some instances where there is no dispute about the existence of the requisite conditions for invoking section 25(2). For instance, it may be absolutely clear from the record that a valid notice had been served on the appellant complying with all the requirements of Sec 9(3) and there is also no doubt that the appellant has refused to matte a claim or has omitted to make a claim. In such a case all the conditions required for applying the provisions of sec. 25(2) exist and it is possible to argue that in such a case the court may suo motu take itself the duty of deciding whether the claimant is entitled to claim the amount in excess of the amount awarded by the Collector. Even then it cannot be denied that the claimant must be given an opportunity to satisfy the court that he had sufficient reason for omitting to make a claim.
In this case however, we are of the view that it cannot be said that even the conditions required for applying the provisions of sec. 25(2) are admitted to exist. As has been pointed out, it is not satisfactorily established that a valid notice satisfying the requirements of sec. 9 (3) had been served. Under sec. 9 (3) read with sec. 9 (2) the Collector shall serve notice giving 15 days time for the persons to appear personally or by agent before the Collector at a time and place mentioned therein. The records do not disclose that such notice was given. The learned Government Pleader submitted that it is stated in the award that the notices were duly published and served and it must be presumed that such notice had been validly given as there is always a presumption that official acts are duly performed. In this case, however, the notice could have been easily produced before the court and therefore, we are of the view that the Land Acquisition Officer is not justified in relying upon the presumption when It was within his power to produce the actual notice and satisfy the court that it was a valid notice given under sec. 9(3) of the Act. It was also argued by the learned Government Pleader that as the President appeared before the Land Acquisition Officer he must be deemed to have waived the requirements of notice even assuming that there is some irregularity in the issue of the notice. In this connection he relied upon the decision in A.P.S. Karuppaiah Nadar v. Spl. Dy. Collector For L.A. AIR 1955 Mad. 406. In that case it was found that there was an irregularity in the manner of the service of the notice, but the claimant himself asserted in his application for reference that at the enquiry he claimed compensation at a particular figure, but this statement turned out subsequently to be false. It was held that the irregularity in the service of notice was waived and the applicant in the circumstances must be said to have either refused or omitted to make a claim as provided in sec 25 (2) of the Act. Hence, he was not entitled to claim compensation in excess of the compensation awarded by the Collector. On the other hand, the learned counsel of the appellant relied upon the decision in Venkatrama Iyer v. Collector of Tanjore AIR 1930 Mad. P. 836 where it was held that the stringent provisions of sec 25 (2) can only be applied after a notice which is strictly in compliance with sec, 9 (2) and (3) has been served upon the landlord. Under sec. 9 (3) the owner is entitled to 15 days notice. Where the notification under sec. 9 does not give the claimant the 15 days'' as required, it amount''s to ''sufficient cause'' within the meaning of sec 25 (3) of the Act for the claimant''s omitting so make a claim and hence the claimant escapes the application of the stringent provisions of sec. 25 (2) of the Act. It was held that merely because the claimant appeared before the Collector it cannot be said that he has waived the requirement of the notice. It was not sufficient to show that the appellant appeared before the Officer. It must be further shown that the appellant was given atleast 15 days notice. In A.P.S. Karupaian Nadar v. Spl. Dy. Collector For L.A. AIR 1955 Mad. 406 Supra the decision In Venkatrama Aiyar v. Collector of Tanjore AIR 1955 Mad. P. 406 was distinguished on the ground that in that case the notice did not conform to the requirements of the statute which prescribe a minimum of 15 days between the date of the receipt of the notice and the date fixed for appearance. In the present case also there is no evidence to show that there has been a valid notice satisfying the requirements of sec. 9 (2) and (3). We are of the view that in the circumstances of the case it cannot be said that there was waiver of the notice merely because the President chose to send a petition requesting that time may be given to submit the claim statement. In this connection it is also to be remembered that it is not necessary that the claim should be in writing. It is open to the party to appear before the Collector and make an oral claim vide decision in Spl. L.A. Officer v. Chikkaboranna AIR 1963 Mys. 319 following the decisions of the Patna High Court to the same effect in State of Bihar Vs. Jehal Mahto and Others, nd State of Bihar Vs. Anant Singh and Others, . There is nothing in the records, one way or other to show that such an oral claim was made or not.
It was further argued by the learned Government Pleader that neither in the application for reference, nor in the counter in the O.P. the appellant has made a grievance of the fact that no valid notice has been served upon him, nor the appellant asserted that he made a claim. In those circumstances he argued that it must be taken as established that valid notice had been served and there was an omission to make a claim thus satisfying the conditions required for invoking sec. 25 (2) of the Act. This contention in our view has, no substance. The application for reference or the counter did not afford any occasion for consideration of the question whether a valid notice was given or whether he made a claim. At that stage the appellant was only concerned with the quantum of compensation and he made out a case for grant of compensation at Rs 12,000/- per acre. If this question had been raised in the counter of the Land Acquisition Officer, perhaps, there might have been some justification in contending that the appellant has not answered that objection by stating that there was no valid notice or that be made a claim. Sri Veerabhadraiah also drew our attention to the fact that an application was made on 28th July, 1969 before the learned Subordinate Judge in order to satisfy him that there was sufficient reason for omitting to make a claim, but the learned Subordinate Judge dismissed it on the ground that the application was received by the Sheristadar after he had pronounced the judgment the same morning. We have no reason to doubt the statement of the learned Subordinate Judge and in the circumstances it cannot be said that the dismissal of the application was unwarranted. But in the view we have taken it is unnecessary for the claimant to have made such an application.
It now remains to deal with the case which were cited at the bar.
The learned counsel for the appellant relied on Tarwadi Ravishanker Mohanlal Vs. Collector, Panchmahals, In that case the land Acquisition officer awarded at the rate of Rs. 50/- for each mango tree which were acquired. The claimants got a reference made under sec. 18 of the Act, The Civil Court found that since the claimant admitted before it to have not made any claim in respect of trees in question they were not entitled to claim anything more than what was already awarded by the Land Acquisition Officer in view of Sec. 25 of the Act. It was held that sec. 25 (2) would operate only when a notice under sec. 9 has been served on the applicant, but from the papers on record it was found there was nothing to show that the applicant had been served with notice required to be given under sec. 9. Apart from this, it was also observed that in the written statement filed by the respondents before the court, no plea based upon sec. 25 (2) has been raised. Even no issue was sought for by the respondent and no issue was framed by the court. It was held that if any issue were raised it would have been open to the claimant to show sufficient reason for omitting to make a claim. They had no opportunity to meet any such ground. It was observed that.
Whenever any such bar is claimed, it is essential that a plea to that effect is raised. Besides, an issue is raised by the other party to meet the same.
It was further observed: "Not only that, but the person who claims such a bar must show that the conditions required to be fulfiled before the bar is available, are established by evidence on record. Nothing of the kind is shown and in those circumstances, it would be too much to act upon the statement made by the claimant in his evidence about his having not claimed Rs. 150/- before the Land Acquisition Officer so as to necessarily justify the court to hold that no additional claim was permissible u/s 25 of the Act.
Sri Veerabhadrayya, strongly relies on this decision in support of his contention that in the absence of any plea being raised by the Land Acquisition Officer, based upon Sec 25 (2) it is open to the court to go into that question by itself. It is true that this decision goes to that extent, but as we have already observed it is not necessary for the purpose of this case to say that the court has in no circumstances jurisdiction to suo moto apply the provisions of sec. 25 (2) if an objection or a plea is not raised by the Land Acquisition Officer. But this decision also points out that before invoking the provisions of sec 25 (2), conditions necessary for invoking these provisions should be proved to exist. As we have held that the record does not disclose that these conditions existed, it is enough for the purpose of this case to say that the court ought not to have exercised its jurisdiction, if any to consider the question suo motu. In Spl. L.A.O. Ghataprabha v. Shlyaputra AIR 1974 Mys. 5 notice under sec. 9 (1) was published in the Gazette and was also served upon the owner under sec. 9 (3) but the claimant did not prefer a claim statement in response to the notice. After the award was made, the claimant sought reference under sec. 18 of the Act. The question for consideration was whether in such circumstances the court had jurisdiction to award compensation in excess of what was awarded by the Land Acquisition Officer. It was held that in order to satisfy the court that it was a bar to grant any enhancement by reason of sec. 25 (2) of the Act, the burden is on the Land Acquisition Officer to show that the pre-requisite conditions have been satisfied. In the instant case all that was on record was the fact notices under sec. 9 had been served on the claimant. The notices served were not produced or caused to be produced. It was held that if the Special Land Acquisition Officer did raise the contention that claim for enhancement is barred by reason of sec. 25 (2) it was for the claimant to produce the notices served on them under sec. 9 to show that the conditions laid down under the said section have not been satisfied by the said notices. In the absence of pleadings on the part of the Land Acquisition Officer there was no duty on the claimants to have produced the notices served on them. The facts and circumstances of the case are almost identical with the facts of the present case. We agree with the view expressed in that decision that without being satisfied that circumstances for invoking sec. 25 (2) exist it is not open to the court to invoke the provisions of that section. It may in passing be observed that in this case the question whether, even in the absence of pleadings, it the notice had been brought on record, the court could have looked into the matter, was left open.
The learned Government Pleader relied upon the following observations in The Secretary for State for India in Council v. Bishan Dat 33 All. p. 367.
Section 25, clause (3) makes the refusal or omission to comply with the provisions of sec. 9 (2) without sufficient cause an absolute bar to the obtaining of a greater sum than that awarded by the Collector.
In that case the Land Acquisition Officer awarded a compensation of Rs. 3,450/-. The claimant applied for a reference to the District Judge who awarded a sum of Rs. 6,668/-. After making the above observation their Lordships stated that there was no reference in the judgment of the learned District Judge to the point having been raised before him and then proceeded to consider the merits of the claim and ultimately came to the conclusion that the learned Judge had contrary to the evidence produced by the owner himself awarded a sum greater than that awarded by the Land Acquisition Officer and therefore the amount awarded by the Land Acquisition Officer was proper As the learned Judges went into the merits of the case the observations regarding sec 25(2) can only be considered in the nature of obiter dicta Further there is no discussion of the various aspects which have been considered by the Gujarat High Court or the Mysore High Court in the decisions referred to above.
Another decision which was relied upon by the learned Government Pleader is that Nalamvari Annasatram and Another Vs. The Special Land Acquisition Officer, Co-operative Housing Schemes, Madras, where it was held that when the owners of the Land tailed to present their claim for compensation in pursuance of a valid notice under sec. 9 the court cannot award a higher sum than the amount awarded by the Land Acquisition Officer. From the Judgment it is found that it was not denied before the learned Judges that a valid notice under sec. 9 was served upon them and that they did not present any claim for compensation within the time prescribed by that notice. Further it also appears that the objection based upon sec. 25 was raised before the learned District Judge. This case therefore, does not deal with a case where no objection was raised before the District Judge. Further it is also admitted in that case that a valid notice had been given and a claim had not been preferred. It is not therefore, a case where there was any dispute that the conditions necessary for invoking sec. 25 (2) existed.
For the reasons above stated we are of the view that the learned Subordinate Judge was not right in holding that the petitioner is not entitled to compensation in excess of the amount granted by the Land Acquisition Officer.
The next question that has to be considered is what is the proper amount of compensation. The learned Subordinate Judge in paragraph 7 of the Judgment referred to two documents, Exs. A-1 and A-2 relied on by the appellants to show that the proper market value of the land at or about the date of acquisition was Rs. 12,000/- per acre. He stated that nothing was put forward on behalf of the Government to indicate that the tranactions covered by Exs. A-1 and A-2 are not genuine. He also referred to the fact that the lands adjacent to this land are also the subject-matter of acquisition and in OP. Nos. 181/65 etc, dt. 30-4-1966 the Sub Court had awarded compensation in respect of R.S. No. 350 at Rs. 12,000/- per acre. The learned Subordinate Judge observed that it cannot be disputed that the land in question in R.S. No. 359 lies in the same area and so long as it is not shown that it does not enjoy the advantage of lands covered by O.P. No. 181/65 etc., the determination of the market value by the Land Acquisition Officer at Rs. 6,000/- per acre is not just and reasonable He also observed that it is not in dispute that S.No. 350 is immediately south of S. No. 359. Having made this observation, the learned Subordinate Judge curiously held that the compensation for the land in question would not be anything less than Rs. 10,000/- per acre. We are unable to understand now the learned Subordinate Judge fixed the compensation at Rs. 10,000/- per acre only in these circumstances. Further, it has also been brought to our notice that the decision in O.P. Nos. 181/65 etc, has been affirmed by this court in A.S. 517/66 (batch) by its judgment dt. 16-4-1970. Having found that Exs. A-1 and A-2 are genuine and the market value was Rs. 12,000 per acre and having held for the land adjacent to this land there was no difference at all and in respect of which the court itself had awarded Rs. 12,000/- per acre, the court was bound to award the same compensation in respect of the lands acquired. The learned Subordinate Judge has not given any reason at all for not awarding compensation at the rate of Rs. 12,000/- per acre, We are therefore, of the view that the proper compensation to be awarded was Rs. 12,000/- per acre.
As far as interest is concerned, the appellant will be entitled to it at the rate of 6% p.a. from the date of taking possession till the date of notification under sec. 4 of the Act, and at the rate of 4% p.a. from the date of notification to the date of payment. In the result, the appeal is allowed to the extent indicated above with costs.