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1954 DIGILAW 191 (KER)

State v. Ramakrishna Pillai

1954-11-05

GOVINDA PILLAI, KOSHI

body1954
Judgment :- 1. This is an appeal by the State against a decision of the learned Additional District Judge of Trivandrum on a Land Acquisition Reference by which the learned judge enhanced the value awarded by the Land Acquisition Authorities for a plot of 23 cents of land which belonged to the respondent, and which was compulsorily acquired by the State for the purpose of improving the aerodrome at the Sankumukhom beach, Trivandrum. The main point raised by the learned Government Pleader was that inasmuch as the land owner, that is, the respondent had not made any claim as enjoined by S.9(2) of the Land Acquisition Act (Act XI of 1089, Travancore) pursuant to the notice issued to him thereunder, it was not competent for the learned judge to enhance the value awarded by the Land Acquisition authorities. This objection was raised before the learned judge only at the time the case came up for arguments after the conclusion of the evidence and the learned judge repelled it on the ground that as it was not raised by the Government Pleader in the written objections filed by him in Court in answer to the claim for enhanced compensation, the respondent got no opportunity to explain his omission to make a claim and that the Court will not, therefore, be justified in refusing the relief which the land owner was entitled to on the merits of his claim. S. 24 (which corresponds to S. 25 of the Land Acquisition Act, I of 1894) contains the 'rules as to amount of compensation' and that Section is in the following terms: "(1) When the applicant has made a claim to compensation pursuant to any notice given under 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 Division Peishkar under S. 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the court) to make such claim, the amount awarded to him by the court shall in no case exceed the amount awarded by the Division Peishkar. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the court) to make such claim, the amount awarded to him by the court shall in no case exceed the amount awarded by the Division Peishkar. (3) When the applicant has omitted for sufficient reason (to be allowed by the court) 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 Division Peishkar". 2. Sub-s. 2 makes it clear that in a case where the claimant omitted to put forward his claim under S.9(2) the amount awarded by the Court shall in no case exceed the amount awarded by the Division Peishkar unless the Court finds that there was sufficient reason for the failure. The learned judge below has not chosen to apply his mind to the question whether there was sufficient reason for the respondent's omission to make the necessary claim and would seem to have proceeded on the ground that the Government Pleader was not entitled to raise the objection at that late stage. 3. The provisions of the section quoted above are mandatory. It prescribes a penalty for the omission unless it is properly accounted for and on the language of the section it is the party who wants to be exempted from the penal consequences prescribed by it that should move the court to permit him to make the claim for enhanced compensation. The wording of the section would seem to us to admit of no other construction. Decided cases support this view. The Secretary of State for India v. Gobind Lal Bysak (1908) XII Calcutta Weekly Notes 263; The Secretary of State for India in Council v. Bishan Dat (1911) I.L.R. XXXIII Allahabad 377; Narain Dat v. The Superintendent of Dehra Dun (1915) I.L.R. XXXVIII Allahabad 69; Ram Prasad v. The Collector of Alligarh (1917) XI Indian Cases 274. In Birbal v. Collector of Moradabad A.I.R. 1927 Allahabad 183 the Allahabad High Court followed the two earlier decisions of that court mentioned above. Certain other cases go further and hold that the claim in answer to the notice under S.9(2) should be a specific claim, a claim which states in Rupees the value the claimant places upon his property. In Birbal v. Collector of Moradabad A.I.R. 1927 Allahabad 183 the Allahabad High Court followed the two earlier decisions of that court mentioned above. Certain other cases go further and hold that the claim in answer to the notice under S.9(2) should be a specific claim, a claim which states in Rupees the value the claimant places upon his property. Orient Bank of India Ltd. v. Secretary of State (1926) I.L.R. VII Lahore 416 and Subbanna v. District Labour Officer (1930) Madras Weekly Notes 373. 4. The earliest Allahabad case cited above explains the rules embodied in the two relevant sections as follows: In our opinion it was intended by Cl. (2) of S. 9 that the owner of property about to be acquired should appear and state his claim in the manner provided by the clause so as to enable the acquisition officer to make a fair, proper and reasonable award based upon a proper inquiry after the proper means have been placed before him for holding such inquiry. S. 25, Cl. (2), makes the refusal or omission to comply with the provisions of S. 9, Cl. (2) without sufficient cause an absolute bar to the applicant in the reference obtaining a greater sum than that awarded by the Collector". 5. If we may say so with respect, this construction commends itself to us as conveying the true import of the combined effect of the two sections and is seen accepted in practically all the subsequent decisions bearing on the point. After explaining the meaning of the provisions thus, the learned judges in that case referred to the fact that the failure to make the claim was not sought to be made a point before the District Court and that the respondent suggested that the point was waived, they went on to consider the appeal on the merits and found that the enhancement made by the District Court was not warranted. In the case in hand the objection was raised before the District Court, but that Court overruled it without adverting to the question of "sufficient cause". Nor did the Court in so many words say that the point was waived. 6. It is, however, open to us to consider whether there was "sufficient cause" for the respondent for not putting forward his claim in answer to the notice under S.9(2). Nor did the Court in so many words say that the point was waived. 6. It is, however, open to us to consider whether there was "sufficient cause" for the respondent for not putting forward his claim in answer to the notice under S.9(2). Secretary of State v. Dinshaw A.I.R. 1933 Sind 21. In the present case the declaration under S.6 was published in the Government Gazette dated 13.8.1121 and the notification under S. 9 was published in the Gazette dated 20.8.1121. The notice under S.9(2) was issued on 9.10.1121 asking the respondent to file his claim before the Division Peishkar on the 20th of that month and that was served on him on the 19th. On the appointed day he filed an application for two weeks' time to produce the necessary papers and to submit his claim. That application is among the papers forwarded to the District Court by the Division Peishkar along with his order of reference, but no order is seen made on it allowing or disallowing the prayer for adjournment. That the further enquiry by the Division Peishkar was conducted exparte is seen from the award he passed in the case on 31.12.1121. We do not know as to what date the enquiry was adjourned from 20.10.1121 and whether the respondent was given notice of the adjournment. S.11 authorises the Division Peishkar to adjourn the enquiry from time to time. Among the other records forwarded to the District Court are seen the valuation statements of P.W.D. and Revenue Officers and a deposition of the Special Land Acquisition Proverthicar. His examination was on 6.12.1121, but the award was passed only on 31.12.1121. Notice of the award was given to the respondent and he then moved under S.18 for a reference to the District Court. 7. The course the proceedings before the Land Acquisition authorities took between the date of the respondent's application for adjournment (20.10.1121) and the date of the award (31.12.1121) has an important bearing on the question whether the respondent had sufficient reason for his failure to make a claim as required by S.9(2). The notice under the section having been served on him only on 19th Edavom, it cannot be said that he acted unreasonably in applying for adjournment of the enquiry for 2 weeks from 20th Edavom. The notice under the section having been served on him only on 19th Edavom, it cannot be said that he acted unreasonably in applying for adjournment of the enquiry for 2 weeks from 20th Edavom. So far as we can gather from the records before us the effect of the Division Peishkar's failure to pass any order on the respondent's adjournment application was to keep the latter ignorant of the subsequent proceedings until he got notice of the passing of the award. It then arises whether that circumstance would constitute sufficient reason within the meaning of S.24(2) to exempt the respondent from the penal consequences of the failure to put forward any claim before the Division Peishkar. The latter did not point out the omission to the District Court in his order of reference nor did the Government Pleader raise the omission as a ground in the objections he filed in the case. In the circumstances, to refuse an enquiry as to whether there was sufficient reason for the failure to make the claim in answer to the notice under S.9(2) might in all probability result in injustice being done to the respondent. To repel the objection as the court below did would be to ignore a mandatory provision in the Land Acquisition Act. The proper course for us would therefore seem to be to set aside the decision of the lower court and remit the case back for an enquiry as to whether in the circumstances of the case the respondent was entitled to have his claim for excess compensation considered on the merits, notwithstanding his failure to file a claim under S.9(2). The lower court will also consider whether a plea of waiver is available to the respondent by way of reply to the objection raised at the late stage. The learned Government Pleader conceded before us that no question of jurisdiction of the District Court to enhance the compensation awarded by the Division Peishkar was involved in the case. It is true the respondent did not seek to show there was sufficient reason for his failure to comply with the requirements of S.9(2), but in our opinion an enquiry into that question is necessary in the interests of justice. 8. In the result we allow the appeal, set aside the lower court's decision and remit the case back for fresh decision in the light of this order. 8. In the result we allow the appeal, set aside the lower court's decision and remit the case back for fresh decision in the light of this order. The further enquiry will be confined to the questions raised by this order and not extended to the question of enhancement of compensation. The lower court will pass a fresh judgment regarding the excess compensation claimed based on the existing materials and in the light of its decision on the points remitted to it for consideration. 9. The respondent has preferred a memorandum of cross objection claiming further enhancement of compensation. In view of our decision in the appeal that memorandum does not arise for consideration. The court-fees paid on the memorandum of appeal and the memorandum of cross objection will be refunded to the respective parties. Order accordingly. Allowed.