Apurba Krishna Chandra v. State of Bihar — 1972 DIGILAW 237 (PAT)

Judgment This second appeal is by defendants 1 to 3 and it arises out of a suit filed by the State of Bihar for a declaration that a sum of Rs. 8,336/6 annas which has been awarded to defendants 1 to 5 in the Land Acquisition Reference No.4 of 1956 in the court of the District Judge, Dhanbad, belonged to the plaintiff-respondent and that these defendants were not entitled to any portion of the same. 2. Facts giving rise to this appeal, briefly stated, are that Plot nos. 199 and 200 of village Hariajam were recorded in the record of rights in Gairabad Malik Khatian of the Proprietor of Pandra estate which vested along with other estates, tenures and intermediary right in the State of Bihar with effect from 1-1-1956. Plot no. 199 having an area of 1.94 acres was a tank while plot no. 200 having an area of 37 acre was an embankment. Sri Shyam Sunder Singh, proprietor of Pandra estate had given Mukarrari lease in respect of the aforesaid two plots to defendant no. 5 Dhirendra Nath Chandra by virtue of an unregistered Hukumnama dated 15th Ashwin, 1341 equivalent to 2-10-1934. Defendant no. 5 did not acquire any raiyati right in the tank and its embankment and whatever right defendant no. 5 had in these two plots was in the nature of in cumbrance and was thus extinguished under section 4 (a) of the Bihar Land Reforms Act when the estate of Pandra vested in the State of Bihar on 1-1-1956. 3. The State of Bihar required some land for the construct ion of the Anchal Office, Nirsa. A public notice as required under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as 'the Act') was issued and the declaration under section 6 of the Act that the aforesaid tank and its embankment were required for the public purpose was published in the official gazette. Thereafter the two plots in question were acquired after observance of necessary formalities and a sum of R. 8,336/6 annas was awarded as compensation to defendant no. 5 on the basis of the unregistered Hukumnama referred to above in his favour. Defendants 1 to 4 raised objections before the Land Acquisition Officer and asserted themselves to be members of the Joint family along with defendant no 5 and claimed their shares in the compensation money. 5 on the basis of the unregistered Hukumnama referred to above in his favour. Defendants 1 to 4 raised objections before the Land Acquisition Officer and asserted themselves to be members of the Joint family along with defendant no 5 and claimed their shares in the compensation money. The Land Acquisition Officer made a reference to the District Judge, Dhanbad, under section 18 of the Act. This reference before the District Judge was registered as Land Acquisition Reference No.4 of 1957. During the pendency of the Land Acquisition Reference No.4 of 1957, an application was filed before the District Judge by the State of Bihar that the tank and its embankment had vested in Government under the provision of the Bihar Land Reforms Act and hence the compensation money should be paid to the State of Bihar and not to these defendants. The learned District Judge by his order dated 7.9.1961 rejected the claim of the State of Bihar holding that he had no jurisdiction to entertain this application of the State of Bihar in as much as the Land Acquisition Officer had not made any reference in respect of the claim of the State of Bihar under section 18 of the Act. The learned District Judge, however, directed by his order dated 16.9.1961 that the compensation money was payable equally to all the defendants nos. 1 to 5. Hence, it became necessary for the State of Bihar to file this suit with the aforesaid prayer. 4. The defendants contested the suit. They pleaded inter alia, that the suit was not maintainable inasmuch as the plaintiff-respondent did not avail itself of the provisions of section 18 of the Act; that these defendants were in possession over the tank and its embankment from 1341 F. S. till the date of the award by virtue of the Hukumnama in favour of defendant no. 5; that this lease in respect of these two plots was taken for agricultural purposes as well as for the purpose of rearing and catching fish; that these defendants had taken settlement of 17 bighas of land appertaining to plot no. 196 from the proprietor of the Pandra estate in the year 1340 F. S. and thereafter in the year 1341 F.S. the tank in question was taken settlement of for the purpose of reclaiming a portion of plot no; 196 and had been irrigating plot no. 196 from the proprietor of the Pandra estate in the year 1340 F. S. and thereafter in the year 1341 F.S. the tank in question was taken settlement of for the purpose of reclaiming a portion of plot no; 196 and had been irrigating plot no. 196 from the water of the tank in question that the defendants acquired a permanent raiyati right on the tank in question and as such, the tank and its embankment did not vest in the State. 5. The learned Subordinate Judge, 2nd court, Dhanbad, on a consideration of the evidence adduced before him, held that since the plaintiff-respondent did not raise any objection to the apportionment of the compensation money before the Land Acquisition Officer, it was debarred from seeking its remedy in the ordinary civil court and as such, the present suit in the ordinary civil court was held to be not maintainable. The learned Subordinate Judge further held that the primary object of taking the lease of the tank in question was for agricultural purposes and as such the unregistered Hukumnama in favour of defendant no. 5 was not hit by the provision of section 107 of the Transfer of Property Act and that the defendants had acquired raiyati right over the plots in question. In view of the fact that the defendants acquired raiyati interest over the plot in question, he held that such a right could not be extinguished under section 4 (a) of the Bihar Land Reforms Act. Accordingly the learned Subordinate Judge dismissed, the plaintiff’s suit with costs. 6. The lower appellate court has held that the suit filed by the plaintiff was maintainable in the ordinary civil court. It further held that on the materials available on the record there was nothing to substantiate the defence case that the settlement of the tank was taken for agricultural purposes and as such the unregistered Hukumnama, not having been executed by both the lessor and the lessee, was hit by section 107 of the Transfer of Property Act. It was, therefore, held that the defendants did not acquire any raiyati right in the two plots in question which vested in the State of Bihar along with other properties of the Pandra estate wit h effect from 1.1.1956. It was, therefore, held that the defendants did not acquire any raiyati right in the two plots in question which vested in the State of Bihar along with other properties of the Pandra estate wit h effect from 1.1.1956. The claim of the plaintiff respondent over the compensation money awarded for the acquisition of the two plots in question was allowed by it. The appeal was, therefore, allowed, the judgment and the decree passed by the trial court were set aside and the plaintiff's suit was decreed. Hence, this second appeal by defendants 1 to 3 only. Defendants 4 and 5 have been impleaded as respondents 2 and 3 in this appeal. 7. Mr. S. K. Mazumdar, learned counsel appearing on behalf of the appellants has raised the following contentions before this court :- (i) The State of Bihar having failed to take adequate steps for claiming compensation in the land acquisition proceeding, it is debarred from filing the present suit which should be held as not maintainable. (ii) The tank and the embankment in question which have been acquired by the Government in the land acquisition proceeding did not vest in the State of Bihar as the defendants had acquired raiyati interest on the same. 8. Point no. (i) Mr. Mazumdar contends that the Land Acquisition Act provides a special procedure for acquisition of land. He argued that the scheme of the Act is that every person interested who feels aggrieved by the award must apply for reference under section 18 of the Act before the Collector. According to him, if the aggrieved party does not apply for reference, he should be held bound by the award. The learned counsel in this connection refers to the observation of their Lordships of the Supreme Court in the case of Dr. G. H. Grant v. State of Bihar A.I.R 1966 S.C. 237 where it has been held :- “The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the court to which power is entrusted. Jurisdiction of the court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in section 30 which excludes the reference to the court of a dispute raised by a person on whom the title of the owner of the land has, since the award devolved”. According to Mr. Mazumdar, the jurisdiction conferred by the Act upon the Land Acquisition Judge is exclusive and cannot be concurrently exercised by ordinary civil court. His further contention is that the State of Bihar has not been able to put forward its claim over the compensation money before the special court which is the Land Acquisition Judge and as such the Jurisdiction of the civil court is ousted. In his view the ordinary jurisdiction of the civil court is barred when the remedy by reference under section 18 of the Act is available. 9. Mr. T. K Jha, learned counsel appearing on behalf of the State of Bihar on the other hand contends that as the notice as required under section 9(3) of the Act was not served on the State of Bihar, the ordinary civil court had jurisdiction to entertain the suit filed by the State of Bihar claiming compensation money awarded by the Collector for the acquisition of the two plots in question. 10. The main point which arises for consideration in this case is whether notice under section 9 (3) of the Act was served on the State of Bihar Mr. Mazumdar contends that the plaintiff-respondent never asserted in the plaint of the suit that no notice as contemplated under section 9 (3) of the Act was served on it and, as such, the plaintiff-respondent should be estopped from challenging in this case about the non-service of notice under section 9 (3) of the Act. I have perused the plaint filed in this case and I do not find any averment in it about the non-service of notice or about any defect or irregularity in this land acquisition proceeding which culminated in the acquisition of the two plots in question and the delivery of the award. I have perused the plaint filed in this case and I do not find any averment in it about the non-service of notice or about any defect or irregularity in this land acquisition proceeding which culminated in the acquisition of the two plots in question and the delivery of the award. The learned Subordinate Judge, on a consideration of the evidence adduced before him, held that the plaintiff had failed to prove that it was not served with a notice under section 9 (3) of the Act. He further observed it is also proved that the plaintiff had every knowledge of all stages in the proceedings in the land acquisition case and he had every opportunity to prefer his claim before the Land Acquisition Officer and he also could have applied for making in reference under section 18 of the L. A. Act.’ The court of appeal below, no doubt, placed reliance on the statement of P. W. 1 examined in the trial court and held the only fair conclusion that can be drawn is that no notice under section 9 (3) had been served and that not having been done, jurisdiction of the civil court cannot be held to be barred. Mr. Mazumdar contends that although this is a finding of fact by the court of appeal below this finding is against the pleading and is based on no legal evidence and as such it could be interfered with in second appeal. There seems to be force in this contention of the learned counsel appearing on behalf of the appellant. 11. It is significant to note as already adverted to above that there is no allegation in the body of the plaint about non-service of notice under section 9 (3) of the Act. When there was no such averment in the plaint, the defendants were not called upon to make any submission in their written statement regarding the service of notice under section 9 (3) of the Act. From the record available in this Court, it appears that after the issue of necessary notifications under sections 4 and 6 of the Act, the Collector took over possession of the land acquired on 6-6-1956 under section 17 of the Act. The award was given by the Collector on 29.10.1956. In the trial court, the order-sheet of the land acquisition proceeding has been marked as Ext. 4. The award was given by the Collector on 29.10.1956. In the trial court, the order-sheet of the land acquisition proceeding has been marked as Ext. 4. It is clear from Ext. 4 that the entire order-sheet of the land acquisition proceeding was not produced before the trial court and hence the trial court appears to be justified in observing that it could not be ascertained as to whether notice under section 9 of the Act was issued and served or not. When the matter was pending before the lower appellate court, learned counsel appearing on behalf of the State argued there that the comment of the trial court that the entire record of the land acquisition proceeding was not produced before it was misplaced, he cause according to him, the entire record of the land acquisition proceeding was brought before the trial court and after some of the documents were exhibited, the record was returned. This contention of the learned counsel appearing on behalf of the State of Bihar appears to have found favour with the court of appeal below. I have perused the order-sheet of the land acquisition officer which was produced before the trial court and marked as Ext. 4. This order-sheet, Ext. 4, starts from 7.3.1956 and ends with 11.5.1956, obviously this order-sheet which was produced in the court below was incomplete and it did not even incorporate the date when the possession was taken by the State of Bihar over the land acquired nor does it show the date when the award was given. If the portion of the order-sheet up to 11.5.1956 could be marked in the court below, I do not find any cogent reason why the relevant order-sheet of the land acquisition officer after 11.5.1956 would be returned. As a matter of fact the trial court was the best authority to say whether a complete order-sheet or an incomplete order-sheet was produced before it and it is difficult to accept the contention of the learned counsel appearing on behalf of the State before the lower appellate court that complete order-sheet was produced before the trial court when there is a clear assertion in the judgment of the trial court that an incomplete order-sheet was produced. It may be stated here that an opportunity was given to the learned counsel appearing on behalf of the State of Bihar in this court to produce the relevant order-sheet of the land acquisition proceeding in the instant case, but in spite of the hearing of the case being adjourned for about three weeks, the complete record of the land acquisition proceeding could not be produced in this Court as well. The Court, there, may presume under section 114 Illustration (g) of the Evidence Act that the evidence which could be and is not produced would, if produced, be un favourable to the person who withholds it. 12. In this case, the court of appeal below appears to have placed reliance on the statement of P.W. l for the purpose of holding that no notice as required under section 9 (3) of the Act was served in the instant case. He is the only witness who has been examined on behalf of the plaintiff on this point. He is a surveyor-cum-draftsman. He has, no doubt, stated that no notice was given to the Government under section 9 of the Act although he was constrained to admit in his cross-examination that general notice under section 9 of the Act was given at the spot. There does not appear to be any reason why the relevant notice under section 9 (3) of the Act would not be served on all persons known or believed to be interested in the land acquired, when notice under section 9 (1) of the Act was served on the spot as admitted by P. W. 1. It has already been observed above that adverse inference could be drawn against the State of Bihar for non-production of the necessary documents in this case. The Court may also presume under section 114, Illustration (e) of the Evidence Act that general and official acts have been regularly performed. The defendant-appellants could not have adduced any documentary evidence to prove the service of notice under section 9 (3) of the Act as they could not be expected to be in possession and control of such documents. 13. The defendant-appellants could not have adduced any documentary evidence to prove the service of notice under section 9 (3) of the Act as they could not be expected to be in possession and control of such documents. 13. It appears that the trial court has placed reliance on several circumstances from which it has come to a conclusion that notice under section 9 (3) of the Act was not only served on the State of Bihar but that the latter had clearly notice of the Land Acquisition proceeding, It transpires from the statement of P. W. 1 examined on behalf of the State of Bihar that the plots in question were acquired on the proposal given by the Additional Deputy Commissioner, Dhanbad, who was the Executive Head and represented the State at Dhanbad in the year 1956. P.W.1. admits that general notice under section 9 of the Act was given at the spot. He further states that notice under section 9 of the Act is given to the parties concerned and that if the Government is a party, then such notice is given to the Additional Deputy Commissioner. P.W.1. further says that an award in the name of the Additional Deputy Commissioner was prepared separately for the rent of the acquired plots and this fact is established from the award (Ext. 5). It is manifest that compensation for acquisition of the two plots in respect of landlord's interest was prepared in the name of the Additional Deputy Commissioner. The State of Bihar through the Additional Deputy Commissioner as its representative was clearly a party to the land acquisition proceeding. The land in question vested in the State of Bihar and possession over it was delivered to the State of Bihar on 6-6-1956 during the pendency of the land acquisition proceeding. When it is admitted by P.W. 1 that notice under section 9 (1) of the Act was served on the spot, it was the duty of the State of Bihar as the real owner of the lands in question to come forward and file an objection before the Land Acquisition Officer claiming the compensation money awarded in this case. As an authority for this proposition, reference may be made to the case of Jagarnath Prasad Shah v. Municipal Board, Benaras A.I.R. 1948 ALL 446. As an authority for this proposition, reference may be made to the case of Jagarnath Prasad Shah v. Municipal Board, Benaras A.I.R. 1948 ALL 446. It appears from the record that the trial court in the instant case, on a consideration of various circumstances enumerated by it held that, the State of Bihar had knowledge of the entire proceeding before the Land Acquisition Officer. But the court of appeal below set aside the above finding of facts arrived at by the trial court without considering the facts and circumstances which weighed with the trial court in arriving at the said decision. In the circumstances, the finding of the lower appellate court that notice under section 9 (3) of the Act was not served on the State of Bihar cannot be said to be proper in law and as such this Court can interfere with the above finding of the lower appellate Court. 14. It may further be stated that P. W. 1 who has denied about the service of notice under section 9(3) of the Act is not at all a competent person to make this denial. He admits that at the time of acquisition of the two survey plots 199 and 200, be was attached to Panchet Land Acquisition Office. According to him, the Land Acquisition Officer of Chaibasa-cum-Dhanbad acquired the aforesaid plots. He also admits that there was a separate Land Acquisition Officer at Panchet. So it is manifest that P. W. 1 had absolutely no concern with the land acquisition proceeding so far as these two plots are concerned. It was the Additional Dy. Commissioner of Dhanbad who was the proper authority to deny the service of notice under section 9(3) of the Act and it was he who could have denied any knowledge about the land acquisition proceeding in connection with the acquisition of these two plots. The lower appellate court has placed reliance on the case of State of Bihar v. Raja Bahadur Kamakhya Narain Singh, 1961 B.L.J.R. 446 where there is an observation that the Government cannot in all cases assume responsibility for any negligent act of its servant. The above observation was made in connection with the facts of that case and cannot be said to be laying down any principle of law. The above observation was made in connection with the facts of that case and cannot be said to be laying down any principle of law. The State of Bihar is not expected to take shelter under the aforesaid observation of the court for the negligent conduct of the Additional Deputy Commissioner, Dhanbad in not filing an objection regarding the compensation money before the Land Acquisition Officer even after the service of notice under section 9 (3) of the Act or even after he had full knowledge of the land acquisition proceeding. The circumstances relied upon by the trial court and not considered by the lower appellate court lead to the irresistible conclusion that either the notice under section 9(3) of the Act was served on the State of Bihar or that it had full knowledge of the land acquisition proceeding in connection with the acquisition of the plots in question. 15. In this connection, I may also refer to section 12 of the Act which lays down. “(1) Such award shall be filed in the collector's office and shall, except as hereinafter provided; be final and conclusive evidence, as between the Collector and the person interested, where they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested. (2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made”. It may be noted that it has neither been pleaded in the plaint nor asserted in evidence that notice under section 12(2) of the Act was not served in this case. In this circumstance, it must be presumed under section 114, Illustration (c) of the Evidence Act that notice under section 12(2) must have been served. The award given by the Collector has, there fore, become final subject to the decision given by the Land Acquisition Judge on a reference under section 18 of the Act. The only remedy open to a person who is dissatisfied with the award is to require the Collector to make a reference to the civil court under section 18 of the Act and a separate suit for the compensation money does not lie. The only remedy open to a person who is dissatisfied with the award is to require the Collector to make a reference to the civil court under section 18 of the Act and a separate suit for the compensation money does not lie. Where, however, the notice under section 9 of the Act is defective and there are other grave irregularities the finality of the award as stated in section 12 of the Act does not apply and there is no bar to a civil suit. 16. It appears from the judgment of the lower appellate court that reliance was placed on the case of Birendra Nath Banerjee v. Mritunjoy Roy A.I.R. 1962 Cal. 275 for the purpose of holding that the suit was maintainable. The observation of their Lordships of the Calcutta High Court in the aforesaid case on which reliance has been placed by the lower appellate court has been quoted in paragraph 8 of the judgment of the lower appellate court. This observation is based on the supposition that notice under section 9 of the Act and under section 12(2) of the Act were not served as a result of which the person interested was prevented from applying for reference within the statutory period mentioned in section 18 of the Act, under the aforesaid circumstances, their Lordships of Calcutta High Court observed that a remedy in the ordinary court of law was not barred. Their Lordships of the Calcutta High Court have discussed a large number of decisions on this point and then held :- “In our opinion a person who has been served with a notice under section 9 of the Land Acquisition Act, as a person believed to be interested in the land, is not entitled to avoid the enquiry as to claims to be made by the Collector, under section 11 of the Act. It is his duty at that stage, to raise objection, if any, as to measurement, compensation and apportionment. If he does not do so; the award made by the Collector shall be final and conclusive evidence as between the Collector and the persons interested, whether they appeared before the Collector or not, of the true area and the value of the land and the apportionment of the compensation amongst the persons interested. This finally, however, is subject to certain other provisions in the Act to which we shall presently refer. This finally, however, is subject to certain other provisions in the Act to which we shall presently refer. Under section 12(2) of the Act the Collector shall give immediate notice of his award to such of the persons interested as were not present personally or by their representatives, when the award was made Section 18 of the Act provides that any person aggrieved by the Collector's award may apply for reference to court within the special period of limitation provided in the section. If he does not do so, it may be “reasonable to hold that he does not become entitled to aspire for the same remedy by filing a civil suit. It is in that sense that it can be said that the special jurisdiction created under section 18 of the Act ousts the jurisdiction of ordinary civil courts.”, It, therefore, follows that the aforesaid decision on which reliance was placed by the lower appellate court supports the appellant's contention that if a person interested had knowledge of the land acquisition proceeding, his only remedy was by a reference under section 18 of the Act and not by a separate suit. There is no dispute about the fact that the State of Bihar who is the plaintiff in this case was a person interested within the meaning of section 3 (b) of the Act and when as observed above, it had notice of the land acquisition proceeding in the instant case, its remedy was by an application for reference and not by a separate suit. 17. In view of what has been observed above, I hold disagreeing with the view expressed by the lower appellate court that the present suit filed by the plaintiff-respondent was not maintainable. 18. Point no. (ii) : In view of the decision on point no. (i), it is unnecessary to discuss this point as the defendant-appellants succeed on the decision on the first point. 19. For the reasons mentioned above, the appeal is allowed, the judgment and the decree of the lower appellate court are set aside and those of the trial court dismissing the suit of the plaintiff restored. In the circumstances of the case I direct the parties to bear their own costs so far this Court is concerned. Appeal allowed.