M. T. GEORGE v. KERALA STATE ELECTRICITY BOARD — 1986 DIGILAW 273 (KER)

Judgment :- 1. Petitioner is the claimant in L.A.R. No. 131/74 of the Sub Court, Pathanamthitta. An extent of 2 acres 62 cents of garden land of the petitioner was acquired for the purpose of Kerala State Electricity Board by the Government on 22-2-1973. It was taken possession of applying the emergency provisions in the Land Acquisition Act. 2. On 4-6-1974, the petitioner was served with a notice under S.9(3) of the Kerala Land Acquisition Act (herein-after referred to as 'the Act'). The petitioner filed his statement of claim for compensation on 1-7-1974. He did not state specifically a particular amount as the compensation he is entitled to. 3. After (he award the petitioner wanted the matter to be referred to the civil court for deciding what enhanced compensation be is entitled to. The matter was referred to the civil court. The civil court tried the case. It awarded to the petitioner an amount of Rs. 37,654/- as enhanced compensation. 4. Before the civil court a contention was raised that the claimant-revision petitioner herein was not entitled to any escalation of compensation since be did not claim a specific amount he is entitled to by way of compensation in his statement in response to S.9 (3) notice. The Sub Court rejected this contention relying on the decision reported in State of Travancore-Cochin v. Mathai (1957 K.L.J. 893). 5. The Electricity Board who was aggrieved by the award of enhanced compensation filed an appeal before this court and in that appeal the correctness of the decision reported in 1957 K.L.J. 893 was questioned. The matter was beard by a Full Bench. The Full Bench overruled the decision reported in 1957 K.L.J. 893. This case is reported in State of Kerala v. George (1981 K.L.T. 310 F.B.). This court remanded the case to the trial court with these observations: "Though the provisions of the Act oblige the claimant to make a specific claim in his claim statement if he is later to seek enhancement and the penalty for failing to make such claim is the forfeiture of his right to claim enhancement, to a great extent the adverse consequence of this provision has been softened by the provision empowering the judge to condone the default on the part of the claimant. The discretion conferred on the judge is a very wide discretion, but sufficient reason has to be found by him to condone the default In considering whether the reason urged is sufficient he should necessarily be led by considerations of good faith in the conduct of the party. If a party is shown to be vigilant all along and not negligent and there is no absence of good faith on bis part that may be a good reason. What is said in this case is that though the claimant here is not an illiterate man, he being a Professor of Engineering, be is not well-versed in the provisions of law and having failed to engage a counsel at the time he filed statement under S.9(3) he failed to make a specific claim as to compensation. His conduct in prosecuting the case showed that he is vigilant and there is no absence of good faith in his part. Such a case is urged for the first time before us in this appeal. It will not be possible for us to determine the question here, for, it is for the Reference Court to find whether there is sufficient reason for the failure on the part of the party to make a specific claim. It is for that court to be satisfied about the explanation for such failure. Learned counsel for the respondent urges that an opportunity be given to him to urge this in the court below. Normally we would not be inclined to allow such a request. That is because this is a matter the claimant has to urge in the court of first instance at the appropriate time and if he fails to urge it, it is not for the appellate court after hearing the appeal to remit the case back to enable the party to urge it again. But we think in the interests of justice an opportunity may be allowed in the peculiar circumstances of this case." When the matter was thus remanded to the civil court, the revision petitioner filed an application to condone his failure to claim specific amount as compensation in the statement pursuant to the notice under S.9(3) of the Act. But we think in the interests of justice an opportunity may be allowed in the peculiar circumstances of this case." When the matter was thus remanded to the civil court, the revision petitioner filed an application to condone his failure to claim specific amount as compensation in the statement pursuant to the notice under S.9(3) of the Act. This application was numbered as I.A. No. 343/81 and the court after taking evidence in this application held that the petitioner has failed to establish sufficient reason to condone his failure to claim a specific amount pursuant to the notice under S.9(3) of the Act. Thus, the court below dismissed I.A. 343/81. Naturally, the claimant is very much aggrieved. He files this revision petition. 6. S.27 of the Land Acquisition Act reads thus: "27. Rules as to amount of compensation (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 Collector under 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." 7. Certainly the claimant-revision petitioner did not make any specific amount in his claim statement pursuant to S.9(3) notice as the amount of compensation he is entitled to. It is a plain and clear omission on the part of the revision petitioner. The question that has to be decided is whether there is sufficient reason for the omission for the court to condone his failure to free him from the resultant adverse consequence of a forfeiture of his right to claim enhanced compensation. 8. What is "sufficient reason" in S.27 of the Kerala Act as well as similar provisions in other Land Acquisition Acts has been considered in certain decisions of this court and High Courts in India. 8. What is "sufficient reason" in S.27 of the Kerala Act as well as similar provisions in other Land Acquisition Acts has been considered in certain decisions of this court and High Courts in India. Counsel for the petitioner referred me to the following decisions: Subramania v. State of Madras (AIR 1953 S.C. 943), Subbanna v. District Labour Officer (AIR 1930 Madras 618), Spl. L.A. Officer v. S. P. Patil (AIR 1974 Karnataka 74) and Koya Haji v. Special Tahsildar L.A. (AIR 1963 Kerala 194). Counsel also relied on the Full Bench decision reported in State of Kerala v. George (1981 K.L.T. 310 (F.B.)) 9. Though the petitioner is an Engineer, he was not aware of the law regarding the integrants to be included in a statement to be filed in response to the notice under S.9(3) of the Act. He was vigilant in prosecuting the case. He filed the statement without any delay. The petitioner says that the omission to make mention in the statement of a specific sum as the compensation he is entitled to for the acquisition of his land was never on account of his lack of diligence or bonafides or good faith. According to him, he never knew about the fact that he should claim a particular and specific amount as compensation in his statement in reply to S.9(3) notice. According to him, since there is clear evidence of his good faith and absence of negligence he is entitled to seek condonation of his failure. 10. I shall examine the width and content of the power of the court under S.27(2) and (3) of the Act. When the Section speaks of sufficient reason what it exactly comprehends, I shall quote (vide 1981 K. L. T. 310). "The discretion conferred on the judge is a very wide discretion, but sufficient reason has to be found by him to condone the default. In considering whether the reason urged is sufficient he should necessarily be led by considerations of good faith in the conduct of the party. If a party is shown to be vigilant all along and not negligent and there is no absence of good faith on his part that may be a good reason." This is the norm held out by the Full Bench. It has to be applied in this case. If a party is shown to be vigilant all along and not negligent and there is no absence of good faith on his part that may be a good reason." This is the norm held out by the Full Bench. It has to be applied in this case. Similar is the view expressed in Ranchhodlalji v. Acquisition Officer (AIR 1945 Bombay 49). Considering a similar provision the Bombay High Court held that the presence of good faith and the absence of negligence are the two important integrants in considering what is sufficient reason for the court to excuse an omission on the part of a claimant to make a proper claim for compensation pursuant to a notice under S.9(3). 11. In Subramania v. State of Madras (AIR 1953 Madras 943), the Division Bench of Madras High Court held thus: "We have no hesitation in holding that the appellants acted in good faith throughout and were in no sense negligent, the good faith consisting in their bonafide belief that no award would be passed before the representation to the Government was finally disposed of and that they could thereafter specify the exact amount. There is no negligence in as much as they appeared before the Acquisition Officer and objected to the acquisition and even earlier appeared before the Revenue Inspector and stated their objections. There is neither negligence nor want of good faith. We are satisfied that their omission to state the claim was for a sufficient reason and the view of the learned Subordinate Judge cannot be upheld". In Spl. L.A. Officers. S.P. Patil (1974 Karnataka 74) following the quoted decision in AIR 1953 Madras 943, the Division Bench observed thus: "Where the claimant, who failed to file his claim in response to a notice under S.90 stated that he was an illiterate person, that he was not aware that objection was required to be filed ana that nobody had explained to him the penal consequences of the omission, this would be a sufficient reason within sub-s. (3). The claimant in such cases should not be deprived of his right to claim enhanced compensation unless there is proof of deliberate refusal or omission, or negligence or want of good faith on bis part." (emphasis supplied) The Division Bench of the Karnataka High Court has gone to the extent of holding that if there is no deliberate refusal or omission it is a good reason to condone the failure to file a proper statement in response to S.9 of Land Acquisition Act. It has to be noted that in the Karnataka case, the basic fact relied on to find sufficient reason was really the ignorance of the provisions of law. 12. Counsel for the respondent submitted that in this case the core element of the sufficient reasons alleged by the claimant in his affidavit is his ignorance of the provisions of law and he submits that the legal presumption is that everyone knows the law He submits that no diligence of inquiry will avail against it and no inevitable ignorance or error will offer justification. I shall examine this aspect of the question. 13. Bhagawati and Tulzapurkar JJ. in Motilal Padampat Sugar Mills Co. Ltd. v. State of U. P. (1979 K. L. T. S. N. 5) said that "there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application." 14. Maule J. correctly explains the rule of law in Martindale v. Falkner (2 C. B. 719). He says "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so." 15. Blackburn J. in The Queen v. The Mayor, Aldermen, And Burgesses of Tewketbury (L. R. Vol. 1111868 Q. B. 629) decodes the position clearly. He says "in Jones v. Randall, Dunning, arguendo, says: "The laws of this country are clear, evident, and certain; all the judges know the laws, and knowing them administer justice with uprightness and integrity". But Lord Mansfield, in delivering the judgement of the court, says: As to the certainty of the law mentioned by Mr. He says "in Jones v. Randall, Dunning, arguendo, says: "The laws of this country are clear, evident, and certain; all the judges know the laws, and knowing them administer justice with uprightness and integrity". But Lord Mansfield, in delivering the judgement of the court, says: As to the certainty of the law mentioned by Mr. Dunning, it would be very hard upon the profession if the law was so certain that everybody knew it; the misfortune is that it is so uncertain that it costs much money to know what it is even in the last resort. It was a necessary ground of the decision in that case that a party may be ignorant of the law." 16. Salmond on jurisprudence edited by P. J. Fitzgerald page 103 "It is a principle recognised not only by our own but by other legal systems that ignorance of the law is no excuse for breaking it. Ignorantia juris neminem axcusat. The rule is also expressed in the form of a legal presumption that every one knows the law." Supreme Court tells us that from the maxim "Ignorantia juris neminem excusat" a legal presumption that everyone knows the law does not follow. Abbot C. J. in 1825 (2 C & P 1113) said: "God forbid that it should be imagined that an attorney or a counsel or even a judge is bound to know all the law." 17. Glanville Williams in his textbook of Criminal Law in a lighter spirit tells us: "Almost the only knowledge of law possessed by many people is that ignorance of it is no excuse (ignorantia juris non excusat). This maxim was originally formulated at a time when the list of crimes, broadly speaking, represented current morality (mala in se), but we now have many crimes that are the result of administrative or social regulation (mala prohibita), which are equally governed by the maxim." 18. If we accept that every one is presumed to know the law, the extension of it will lead us to hold that all persons are presumed to know the existence and precise terms of the large body of the legislation of the State and Centre pertaining to him however obscure its wording or chaotic its arrangement is. He is obliged to know it. He is obliged to know it. At his risk he should also make an exact divination of the inscrutable way in which the courts will decide any ambiguity that lies hidden in the wording of a certain provision. To add to this oddity it is often seen that a judge in construing a statute for delineating the correct law the legislature wanted to declare defending and using a large range of materials outside the statutes or statutory instrument itself. The citizen needs the legal training to understand these materials. In fact the whole trouble for the petitioner arose in this case when this court took a different view of the law after overruling by a Full Bench decision. 19. Lord Westbury in 1867 L.R. Vol. II page 149 (Edward H. Cooper v. William Phibbs), observed: "It is said. "Ignorantia juris haud execusat; but in that maxim the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But when the word "jus" is used in the sense of denoting a private light, that maxim has no application." 20. In 1873 L.R. VI page 223 (The Right Hon. Frederick Earl Beauchamp v. Charles Winn) Lord Chelmsford said: "With regard to the objection that the mistake (if any) was one of law, and that the rule, "Ignorantia juris neminem excusat" applies, I would observe upon the peculiarity of this case, that the ignorance imputable to the party was of a matter of law arising upon the doubtful construction of a grant. This is very different from the ignorance of a well-known rule of law And there are many cases to be found in which Equity, upon a mere mistake of the law, without the admixture of other circumstances, has given relief to a party who has dealt with his property under the influence of such mistake." 21. On the question of the "presumption of legal knowledge" I hold the view that though ignorance of the law does not excuse persons so as to exonerate them from the consequences of their acts, as for example, from punishment of criminal offence, particularly offences of strict liability yet the law should take notice that there may be a doubtful point of law as to the true content or the exact requirement of the provision of law, of which a person may be ignorant. I should remember that it is quite plain and evident that ignorance of the law often in reality exists. Rules and maxims when recognised at all, are recognised as proper for the guidance of individual judgment, not for the exclusion of it. It is, therefore, in the above qualified sense alone that the maxim 'ignorance of the law does not excuse' must be understood. 22. It should be noted that S.27 (3) confers wide discretion on the court. Legislature in its wisdom has deliberately not hedged or circumscribed in any manner the exercise of this discretion. Certainly it has to be exercised judicially. I feel it is not proper and just to impose any rigid rule as a self denying ordinance by which the court should invariably refuse to treat ignorance of law as reason falling within the expression "sufficient reasons" under sub-s. (3) of S.27 of the Act. I shall refer to two decisions of the highest authorities, House of Lords and Supreme Court in Hyman v. Rose, 1912 AC 623 and Namdeo Lokman Lodhi v. Narmadabai,1953 SC 228. These decisions concerned the question of the discretion vested in the courts to grant relief against forfeiture. The courts construed the words in their widest denotation. In AIR 1917 P. C. 156 (Briji lndar Singh v. Kanshi Ram Their Lordships of the Judicial Committee of the Privy Council considered the trend of judicial decisions in India which interpreted S.5 of the Indian Limitation Act 1908. They found a uniform practice in Indian High Courts under which a mistake of law in appropriate cases considered as sufficient cause for excusing delay. Lord Dunedin delivering the judgment of the Board said: "Now if the matter were entirely open". In as much as a mere mistake in law is not per se sufficient reason for asking the court to exercise its discretion under S.5, there would be a good deal to be said in argument in favour of making the rule universal .... :.... But the matter is not open. In as much as a mere mistake in law is not per se sufficient reason for asking the court to exercise its discretion under S.5, there would be a good deal to be said in argument in favour of making the rule universal .... :.... But the matter is not open. To interfere with a rule which after all is only a rule of procedure which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many cases, would cause great inconvenience, and their Lordships do not propose so to interfere." I feel that the same principle can safely be applied in construing S.27 (3) of the Act. 23. In Koya Haji v. Special Tahsildar (AIR 1963 Kerala 194) the court held thus: "S. 25 (2) being a penal provision must be applied only in cases where there is clear and convincing proof of deliberate refusal or omission without justifiable reason to make a claim and where there is neither negligence nor want of good faith the parties should. not be deprived of the benefit of an enhanced valuation that might be fixed by the Court." 24. I shall examine whether the court below has approached the problem properly and has exercised its power in accordance with the principles and guidelines given by this court as well as other High Courts in India. The learned Sub Judge observed thus: "So, be cannot be considered to be ignorant of law, whereas be is a learned man, who knows the provisions of law." It has to be remembered that the petitioner's learning is in engineering. The other ground to refuse his application is stated by the learned judge thus: "Further even after the reference is made to this court, be has not filed any petition to condone the default in filing a petition under S.27(2) of the Act, so that the court may consider his cause and allow to claim enhanced compensation. So. it has to be concluded that he has known law and failed to apply or seek its help at the proper time and proper stage. Such a person cannot be considered to have been acted in good faith and vigilantly, throughout the L. A proceedings and he has failed to do so. So. it has to be concluded that he has known law and failed to apply or seek its help at the proper time and proper stage. Such a person cannot be considered to have been acted in good faith and vigilantly, throughout the L. A proceedings and he has failed to do so. then the reason stated by him cannot be considered to be a sufficient reason to condone the default." 25. From the above quote it is clear that the learned judge did not approach the question in the right perspective. The question of delay in filing the application for condonation of the failure to specify a certain sum as compensation under S.27 of the Act has absolutely no relevance since this court has remitted the case to enable the petitioner to canvass sufficient reasons for the condonation of the failure to claim a certain specific amount. The learned judge ought to have considered the question of lack of good faith or negligence in the light of the various steps taken at the various stages of the land acquisition proceedings. 26. The sufficient reason contemplated by sub-s. 3 of S.27 of the Act is a reason sufficient in law, and the sufficiency of the reason is to be decided by applying the proper legal principles. Therefore, if this court thinks that the Sub Judge has decided in this case that there was no sufficient reason, by reason of the non-application of the well established principles then it would not be incorrect to hold that the court has limited bis own discretion or put unnecessary fetters upon his discretionary jurisdiction resulting in manifest injustice to the party. I should hold so. the Sub Judge first of all has not appreciated correctly the legal principles to be applied in determining what constitutes sufficient reason within the meaning of sub-s. 3 of S.27 of the Act. Secondly the court was confused on the question as to whether the petitioner is guilty of delay in filing the application to condone his failure to ask for a specific amount in his claim statement. 27. It has to be noted that an extent of 2 acres 62 cents of garden land of the petitioner has been acquired and he was anxious to get proper compensation. He was co-operating ungrudgingly with the Government in (he land acquisition proceedings. 27. It has to be noted that an extent of 2 acres 62 cents of garden land of the petitioner has been acquired and he was anxious to get proper compensation. He was co-operating ungrudgingly with the Government in (he land acquisition proceedings. He surrendered possession of the property even before an award was passed. There is nothing to show negligence on his part in prosecuting the proceedings. Though the power exercised by the court is wide discretionary power, if that power has not been exercised reasonably and in a judicial manner, interest of justice requires interference with the order otherwise there will be clear miscarriage of justice. I feel that there is really lack of a sound exercise of the power by the lower court. True, the fact that the power that is exercised by the lower court is a discretionary power should always decelerate, this court in interfering with the order, exercising its power of superintendence under S.115 C.P.C. I am conscious, that my power under S.115 C. P. C. is very limited, but I cannot put out of mind what the Supreme Court has said in AIR 1970 S. C.1 about the true content of this power of superintendence "When the aid of the High Court is involved on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the court below. S.115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense. AIR 1932 PC 165 & AIR 1926 PC 22 & AIR 1937 Mad 385 (FB) & (1911) 13 Cal LJ 90 & (1864) 10 HLC 704 & (1898) ILR 22 Mad 68 (FB), Rel. on." 28. I feel that the lower court has exercised its discretionary power under S.27 of the Act unreasonably with undue rigidity and ignoring the relevant facts and circumstances of the case and the law on the subject clearly laid down by this court. on." 28. I feel that the lower court has exercised its discretionary power under S.27 of the Act unreasonably with undue rigidity and ignoring the relevant facts and circumstances of the case and the law on the subject clearly laid down by this court. The discretionary power given to the court under S.27 calls for a very prudent exercise inspired by a pragmatic point of view and that a doctrinaire or rigid approach should be avoided as far as possible. I am of the view that S.27 should not be applied rigorously. If at all it should be applied strictly it should be only in cases where there is clear and convincing proof of deliberate refusal or conscious and intentional omission without justifiable reason and suggesting some sinister purpose. It should be noted that the provision has the colour and character of a penal provision. So it should be administered as a penal provision giving all benefits of doubts to the aggrieved party. It is not the design of the Act to use this provision as a trap for depriving the claimant a fair and proper compensation for their property acquired by the Government. If there is good faith a benign construction favourable to the party should be the safe test. I do not think that in this case, there is lack of good faith or absence of diligence. 29. I feel that I will be tailing in my duty if I do not consider an attractive argument advanced by the counsel for the respondent. He submitted that S.9(3) notice issued to the petitioner itself contains a warning to the petitioner to demand a specific sum of money as compensation for the land acquired. He wanted me to examine the contents of the notice issued under S.9(3) of the Act. Counsel is correct in his submission that there is a statement in the notice though not as a warning that the claimant should file the statement of his claim denoting a specific amount. There is no clear mention of the lethal consequence of the non-compliance of this requirement in the notice. Merely on account of the fact that the petitioner has received such a notice it is difficult for me to conclude that he has deliberately or wilfully omitted to mention a specific amount as compensation. There is no clear mention of the lethal consequence of the non-compliance of this requirement in the notice. Merely on account of the fact that the petitioner has received such a notice it is difficult for me to conclude that he has deliberately or wilfully omitted to mention a specific amount as compensation. In the circumstances obviously it is an inadvertent omission on the part of the claimant. I see no circumstance indicating a deliberate refusal to specify a definite amount as compensation. It can never be deliberate and wilful, since I see no ulterior motive on the part of the claimant to adopt such a perilous course to his great disadvantage. No suggestion to that effect is seen to have been made before the lower court. Counsel for the respondent did not suggest before me any ulterior purpose on the part of the petitioner in omitting to state a specific sum in the claim statement. 30. Counsel for the respondent further submitted that the remedy of the claimant is not to file a revision before this court challenging the order in the I.A. He submits that when this I. A. has been disposed of, really the land acquisition reference stands disposed of by passing an award and the claimant ought to have filed an appeal instead of filing this revision. He tells me that the claimant should not be allowed to short circuit the filing of an appeal by allowing him to maintain this C.R.P. I directed the office to ascertain what has happened to the land acquisition reference (L.A.R.131 of 1974) before the Sub Court, Pathanamthitta. I am told that the case (LAR.131/74) is still pending. No award has yet been passed. In the circumstances, I think that there is no merit in the point that the remedy of the claimant is to file an appeal challenging the award in L. A. R.131/1974. 31. I hold that the C.R.P. is maintainable and for the reasons I have stated it has to be allowed. I do so. I allow the application I.A. 343/81.1 direct the Sub Court, Pathanamthitta to consider and dispose of L.A.R. 131/74 in accordance with law. Allowed.