Karnataka High Court
Special Land Acquisition Officer vs Kallangouda on 13 August, 1992
Equivalent citations: ILR1993KAR1
JUDGMENT Shivashankar Bhat, J.
1. In the course of hearing these Appeals it was pointed by the learned Government Advocate that I.A. under Order 41 Rule 27 was allowed earlier by this Court permitting the appellant to produce the additional evidence. This additional evidence is alleged to be a statement filed by the claimants dated 14th May 1986 whereunder the claimants stated that the market value of the acquired lands will be Rs, 50,000/- per acre (in one or two instances it is Rs. 35,000/- per acre). The Reference Court has awarded the compensation at the rate of Rs. 7.53 ps. per square yard which comes to nearly Rs. 3,28,000/- per acre. It was contended by the learned Government Advocate, that the claimants are not entitled to seek any amount in excess of the amount claimed by them in response to Section 9 notice received by them. We do not express any opinion whether at this stags the said statement now filed before us should be relied upon because throughout the appellant has been contending that the claimants had not filed any response to, Section 9 notice. Since the Bench had already allowed the application the impact of the said statement will have to be considered along with the stand taken by the appellant stated just now by us.
2. The learned Government Advocate relied on the observations made in LAND ACQUISITION OFFICER v. RAJESAB HUSSAINSAB KALBURGI, which reads thus:
"Even though by amending Section 25 of the Act, By Act 68 of 1984, the bar against granting compensation at a rate higher than the rate at which the claimant had claimed before the Land Acquisition Officer has been removed, compensation at a rate higher than the one at which the compensation was claimed in-the statement filed before the Deputy Commissioner/Land Acquisition Officer under Section 9(2) of the Act, can be awarded by the Court only under the following circumstances:
(1) There must be a plea in the reference application that on account of ignorance or for any other specific valid reason the claimant had claimed compensation at a rate lower than the rate at which he would have claimed compensation, but for such ignorance or cause.
(2) There should be convincing evidence in support of such plea and the Court should record a finding to the effect that the plea is well-founded.
(3) That there must be an unimpeachable evidence justifying the awarding of compensation at a rate higher than the rate at which compensation was claimed by the claimant before the Land Acquisition Officer."
3. Mr. Vijaya Shankar, appearing for the claimants, contended that these observations are not warranted in view of the amendment made to Section 25 of the Land Acquisition Act and these observations in fact indirectly inducted into Section 25, the provisions which were deleted when the Act was amended. This apart, if there is a statement by a claimant the said statement cannot have a higher status than an admission and the claimant is always entitled to explain away the I admission. The manner in which the admission can be explained away cannot be restricted in the manner it has been done in the above observations. The circumstances of a particular case themselves may show that the claimant's statement made was erroneous or was the result of ignorance.
4. We find considerable force in the submission of the learned Counsel for the claimants. Section 25, before its recent amendment in the year 1984, provided that the amount awarded as compensation by the Court shall not exceed the amount claimed by the claimants before the Deputy Commissioner. It is not necessary to refer to Sub-sections (2) and (3) which enables the Court to consider the sufficiency of the reason for not making any claim before the Deputy Commissioner. The present Section, on the other hand, states that the compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. The restriction found in the earlier provision has been taken away. This amendment made to Section 25 seems to be deliberate to advance justice and enable the claimants to obtain fair compensation. In BHAG SINGH v. UNION TERRITORY OF CHANDIGARH, the Supreme Court pointed out the need to pay an appropriate compensation to the claimants without unduly restricting the procedure against interest of the claimants. It was pointed out that every claimant is entitled to the benefit of enhanced compensation in case some other claimant establishes the case, The Supreme Court observed as follows at page 1578:
"We are of the view that when the learned single Judge and Division Bench took the view that the claimants whose iand was acquired by the State of Punjab under the notifications issued under Sections 4 and 6 of the Act, were entitled to enhanced compensation and the case of the appellants stood on the same footing, the appellants should have been given an opportunity of paying up the deficit court-fee so that, like other claimants, they could also get enhanced compensation at the same rate as the others. The learned Single Judge and the Division Bench should not have, in our opinion, adopted a technical approach and denied the benefit of enhanced compensation to the appellants merely because they had not initially paid the proper amount of court-fee. It must be remembered that this was not a dispute between two private citizens where it would be quite just and legitimate to confine the claimant to the claim made by him and not to award him any higher amount than that claimed though even in such a case there may be situations where an amount higher than that claimed can be awarded to the claimant as for instance where an amount is claimed as due at the foot of an account, Here was a claim made by the appellants against the State Government for compensation for acquisition of their land and under the law, the State was bound to pay to the appellants compensation on the basis of the market value of the land acquired and if according to the judgments of the learned single Judge and the Division Bench, the market value of the land acquired was higher than that awarded by the Land Acquisition Collector or the Additional District Judge, there is no reason why the appellants should have been denied the benefit of payment of the market value so determined. To deny this benefit to the appellants would be tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value. There may be cases where, as for instance, under agrarian reform legislation, the holder of land may, legitimately, as a matter of social justice, with a view to eliminating concentration ot land in the hands of a few and bringing about its equitable distribution, be deprived of land which is not being personally cultivated by him or which is in excess of the ceiling area with payment of little compensation or no compensation at all, but where land is acquired under the Land Acquisition Act, 1894, it would not be fair and just to deprive the holder of his land without payment of the true market value when the law, in so many terms, declares that he shall be paid such market value. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
The Supreme Court has pointed out that the proceedings in Land Acquisition Act is not a dispute between the two private citizens and the proceeding are meant to find out a just compensation payable to the claimant who has lost his land. The compensation payable to the claimants were not limited to the claim made by them, as could be seen from the opening sentence quoted above because it was held that they were entitled to the enhanced compensation on the same footing as the claimants in other cases and that non-payment of appropriate court-fee should not come in their way. The claimants may be directed to pay the additional court-fee.
5. The nature of the proceedings is again brought out in CHIMANLAL HARGOVINDDAS v. SPECIAL LAND ACQUISITION OFFICER, POONA AND ANR., it was observed thus:
"The following factors must be etched on the mental screen:
1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose."
We have omitted the other factors as they are not necessary for the present purpose. Factor No. 3 quoted above clearly brings out the proposition advanced before us by Mr. Vijaya Shankar that the Court in a Reference under Section 18 will have to consider the case from the stage of the Reference on the basis of the material produced before the Court. These observations were read along with earlier observations made in Bhag Singh's case to point out that the claimants should not be restricted to the claim made by them before the Land Acquisition Officer and the restriction imposed by this Court in R.H.Kalburgi's case go beyond the scope of the provisions of the Land Acquisition Act.
In SHARADCHANDRA CHIMANLAL AND ORS. v. STATE OF GUJARAT AND ORS., this aspect was considered in the context of a claimant not having made any claim whatever before.the Land Acquisition Officer. The Bench of the Gujarat High Court held that in spite of the non-claim, the claimant was entitled to seek enhanced compensation. At page 59-the Bench observed thus:
"On behalf of the respondents, it was claimed that the appellant-claimants are not entitled to any compensation in excess of the offer made by the Land Acquisition Officer in as much as the appellant-claimants have not preferred any claim whatsoever after notice to them under Section 9(3) and (4) as prescribed by Section 25 of the Land Acquisition Act before its amendment in 1984 where the Court was not entitled to grant any additional compensation in excess of the compensation claimed before the Land Acquisition Officer, and, therefore, the present appeal is incompetent on that ground.
We may first of all dispose of the preliminary contention raised by the learned Assistant Government Pleader about the competency of the appeal by the appellant-claimants, It is no doubt true that under Section 25, as it stood before its amendment by Section 17 of the Amending Act (No. 68 of 1984), where the applicant has made a claim to the compensation pursuant to any notice given under Section 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 Section 11. The legal position before the amendment of Section 25 was that not only the person interested on receiving a notice under Section 9 was to lay a claim but he was under any obligation to claim a specific amount and consequently therefore, the award of the Court could not exceed the sum so claimed (See: Goverdhan Mahto v. State of Bihar, ). In other words, if no claim has been preferred by a person interested in the land acquired, the Court would be precluded from awarding any compensation higher than that offered by the Land Acquisition Officer. It is with a view to remove the mischief contained in this provision that Section 17 of Act No. 68 of 1984 deleted Section 25 as it then stood and substituted the following Section in its place;
"25. The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11".
Section 25 as it stands now obviates the necessity of any claim being led in response to the notice under Section 9 of the Act, because the only limitation on the power of the Court which has now been prescribed under the amended Section 25 is that the amount of compensation awarded by the Court shall not be less than the amount offered. In other words, the Court cannot in a reference application reduce the amount of compensation as offered by the Land Acquisition Officer. The resultant position emerging from the amended Section is that even without any such claim the Court can award compensation in excess of what has been awarded by the Collector, which position was not available prior to 1984 since there was a limitation also on the power of the Court in the preamended Section that the Court would not award compensation beyond that claimed by a person interested. In other words, the position prior to 1984 was that failure to make a claim despite receiving notice under Section 9 without sufficient cause precluded the Court from awarding a sum in excess of the Collector's award".
The object behind the amendment made to Section 25 has been brought out in the above observation, which again, supports the contention of the claimants, before us.
For the reasons stated above, we are of the view that the observations made in R.H. Kaiburgi's case by a Bench of this Court requires reconsideration. We refer the following Questions for Consideration of the Full Bench under Section 7 of the Karnataka High Court Act:
1) Whether a claimant who has made a particular claim for compensation before the Land Acquisition Officer is bound by the same when he seeks enhanced compensation under Section 18 of the Act and if not under what circumstances he is permitted to depart from the earlier claim?
2) Whether the observations quoted above made in R.H. Kalburgi's case lays down the taw correctly?
Papers be placed before the Hon'ble Chief Justice for appropriate orders.
ORDER IN REFERENCE Shyamsundar, J.
1. On a Reference made by our Brethern Shivashankar Bhat and R.Ramakrishna, JJ under Section 7 of the High Court Act, we are now In seizen of the two Questions formulated by the aforesaid Division Bench for consideration by a Full Bench. The Two questions are:
1) Whether a claimant who has made a particular claim for compensation before the Land Acquisition Officer is bound by the same when he seeks enhanced compensation under Section 18 of the Act and if not under what circumstances he is permitted to depart from the earlier claim?
2) Whether the observations quoted above made in R.H. Kalburgi's case lays down the Law correctly?
2. The Referal Order gives an adequate insight to the controversy the resolution of which is sought for under the Reference. While it is not necessary to advert in extenso to the origin and genesis of the controversy suffice it to note that the question arose as to whether a claimant under the Land Acquisition Act (hereinafter referred to as The Act') who had made some claim for compensation before the Land Acquisition Authority ('LAO' for short) has the freedom or the liberty to cut adrift from that claim made before the L.A.O. and in its place feel free to claim something more and beyond the demand made before the L.A.O. and in the context arose the Questions for Consideration to be dealt with herein as follows:
3. Questions Nos. 1 and 2.:-
3. Both these questions are interconnected, hence considered together. In L.A.O. v. R.H. Kalburgi a Bench of this Court comprising of Justice Rama Jois, the Ag. Chief Justice (as he then was) and M. Ramakrishna. J., had taken the view that for a claimant to be eligible to seek a compensation higher than what was sought for by the claimant before the LAO, he had necessarily to satisfy the Court as to why a lower claim was made and further to establish the reason for departing from the earlier claim so as to enable the Court to award a suitable compensation to the claimant. Their Lordships were of the view that white a claimant may claim more than what was claimed before the L.A.O, he would become eligible and entitled to the higher claim only if he sets out the reasons that persuaded him to restrict his claim to a lesser sum by producing convincing evidence in that behalf apart from providing good and sufficient evidence for being awarded a higher compensation. Their Lordships felt the position was as aforesaid despite the amendment to Section 25 of the Act by Central Act 68/84. It seems to us to put that matter in the right perspective it would be desirable to excerpt the relevant portion of the dicta in Kalburgi's case referred to supra. It reads:-
"It is true that the embargo placed on the power of the Court to award compensation more than what was claimed in the claim statement by Section 25 as it stood prior to 1984 Amendment has been removed by the 1984 Amendment. The question is, under what circumstances, the Court can award compensation higher than what was claimed....As can be seen from Section 9(2) a claimant is required to specify in the statement before the Deputy Commissioner the amount of compensation for his land acquired under the Act and also specify the basis for it. When the Land Acquisition Officer in his award awards an amount of compensation which is lower than what was claimed by the claimant and the claimant makes an application for reference, the only two questions which have to be decided by the Courts are: (1) Whether the compensation awarded by the Land Acquisition Officer is proper and correct? (2) Whether the compensation claimed by the claimant before the Land Acquisition Officer was correct? Even though by amending Section 25 of the Act, by Act 68 of 1984, the bar against granting compensation at a rate higher than the rate at which the claimant had claimed before the Land Acquisition Officer had been removed, compensation at a rate higher than the one at which compensation was claimed in the statement filed before the Deputy Commissioner/Land Acquisition Officer under Section 9(2) of the Act, can be awarded by the Court only under the following circumstances: (1) There must be a plea in the reference application that on account of ignorance or for any other specific valid reason the claimant has claimed compensation at a rate lower than the rate at which he would have claimed compensation, but for such ignorance or cause. (2) There should be convincing evidence in support of such plea and the Court should record a finding to the effect that the plea is well-founded. (3) That there must be an unimpeachable evidence justifying the awarding of compensation at a rate higher than the rate at which compensation was claimed by the claimant before the Land Acquisition Officer."
Not unnaturally, the Bench which made the Referal Order herein felt that albeit the somewhat free and open outlay of Section 25 of the Act as it now stands there would be no need to ask the claimant to show cause as to why he claimed a lower compensation before the LAO vis-a-vis the one claimed by him before the Court as it would then tantamount to making the claim in question as if made under the unamended Act albeit the claim itself having arisen long after the amendment. The Referal Order makes apposite reference to the Decision of the Supreme Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and Anr., wherein their Lordships had taken occasion to emphasise the need for the Court to treat the reference under the Act as an original proceedings for the purpose of determining the market value afresh on the basis of the material produced before it subrogating the claimant to the position of a plaintiff who had necessarily to establish that the compensation offered to him by the L.A.O. was inadequate and had therefore to prove its adequacy of otherwise by placing appropriate material in that behalf. The Bench also referred to the Decision of The Gujarat High Court in Sharadchandra Chimanlal and Ors. v. State of Gujarat and Ors., in which their Lordships have also taken the view that having regard to the format of Section 25 following its amendment under Act 68/84 a claimant who had refused to make a claim before the L.A.O. would be entitled to put forward a claim before Court and seek for its adjudication unhindered by the omission to make a claim before the L.A.O.
4. Before we advert to these Decisions in order to indicate our views we will make a brief reference to the relevant provisions of the Act that have a bearing on the question relating to determination of apposite compensation payable to a claimant whose lands have been compulsorily acquired. To start with, Section 9 of the Act refers to the duties of the Collector or the Deputy Commissioner to follow the modalities prescribed in that Section for collecting information from all persons interested in the land touching their interest therein and in particular the amount and the particulars of the claim for compensation, the physical configuration of the property such as measurement etc. Section 11 contemplates an enquiry by the Collector before making an award. With the passing of the award the L.A.O. ceases to play any further role in the matter. In case the Claimant feels aggrieved by the award passed by the L.A.O. he can seek a reference to be made under Section 18 of the Act by the Deputy Commissioner to the Court so that the Court could determine the correctness of the award made. The last and probably the material provision to be referred to is Section 25 of the Act which enjoins a duty on the Court to decide and determine the compensation to be awarded to the claimant. It reads:-
"25. Amount of compensation by a Court not to be lower than the amount awarded by the Collector:- The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11."
The above provision does not either by implication or explicitly limit the compensation amount that could be claimed by a Claimant. The Section, on the other hand, makes it plain that under no circumstance the award made by the Court should be less than the amount awarded by the Collector. The only limitation on the power of the Court in awarding compensation appears to be that the Court cannot award a compensation less than the one awarded by the L.A.O. By implication it means that the Court can award higher compensation than what was awarded by the L.A.O. Significantly the Section remains untramelled by any conditions enjoining the making of a claim higher than what was sought for before the L.A.O. In other words the Section does not forge a connecting link between the claim made before the L.A.O. and a claim made before the Court. The result is the claimant will be free to claim any amount before the Court as compensation and this liberty to claim any amount in Court remains totally uninhibited by any claim made before the L.A.O. even if there was a great disparity between the two ciaims i.e. the one made before the L.A.O. and the one made before the Court. We must emphasise here that the Section itself being silent about any barriers that either prohibit making of a higher claim before Court vis-a-vis the claim made before the L.A.O. there is no need at all for the claimant to offer any explanation whatsoever as to why he made a lower claim before the LAO. while hiking it up before the Court. The law does not enjoin offering of any such explanation.
5. We must at this juncture go back to the point of time i.e. before the Act was amended by Act 68/84. Prior to its amendment Section 25 stood hemmed-in and was severely constricted by conditions when it came to making a higher claim before Court than the one made before the LAO or when it came to making a claim before Court without making any claim before the L.A.O. Section 25, prior to its amendment, stood thus:-
"Rules as to amount of compensation:-
(1) When a person interested has made a claim to compensation, pursuant to any notice given under Section 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 Deputy Commissioner under Section 11.
(2) When a person interested 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 Deputy Commissioner.
(3) When a person interested has omitted for a sufficient reason to be allowed by the Judgment 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 Deputy Commissioner."
Thus it may be seen Section 25 prior to its amendment contemplated a preliminary exercise by which a claimant had to support his stand of having not made a claim or having made a lower claim citing good reasons for not making a claim or for making a lower claim before the L.A.O. Only if he was able to persuade the Court to unshackle him from his own self-induced fetters he would be permitted to make good the claim for compensation putforward fot consideration by the Court but not otherwise. But after the amendment the law deemed it fit to liberate Section 25 from such inhibiting factors giving full liberty to the claimant to claim whatever amount he wanted to claim before Court. This significant departure in out view has broughtforth a sea-change in the panorama of the Act.
6. We need hardly add that the Act undoubtedly has an element of confiscatory complexion which, nevertheless, is justified in public interest. Had it not been for the award of compensation involuntary acquisition by the State would not have stood judicial scrutiny at all. In Bhag Singh v. Union Territory of Chandigarh, it was held that the State was bound to pay to the claimants compensation on the basis of the market value of the land acquired. It was also pointed out that the State Government must do, "what is fair and just to The Citizen" and should not, as far as possible, take up a technical plea to defeat the legitimate and just claim of the citizen. Thus bearing in mind the circumstance of lands being taken away without the consent and much against the wish of the land owner, the humanising factor in the law has thought it fit to remove ail hurdles and humps in the way of the claimant getting a compensation which is deemed just and adequate. While the law of course expects him to make good the claim made before Court by producing ample evidence, it has nonetheless thought fit to remove all barriers that may prevent or preclude him from claiming the market value of the land. Thus we find Section 25 as it now stands totally liberates the claimant from all restraints that held him in check earlier from making a claim before Court for the first time even where he had not made any claim before the Collector and even if he had made some claim the Section in its new orientation gives him full liberty to hike his claim before Court without furnishing any reasons on affording an explanation for making a lower claim before the Collector.
7. Having thus so far considered the question on an apriorari basis we now move on to consider the Authorities on this point. We may start by referring to the Decision of Supreme Court in Chimanlal v. Land Acquisition Officer, Poona, to which there was some reference earlier. We shall now set out the view points of the Supreme Court on the nature of proceeding under Section 18 of the Act and the duty owed by a Court in disposing off a claim made under Section 18 of the Act vis-a-vis the position of the claimant, Their Lordships observed at page 1656:
4. The following factors must be etched or the mental screen:
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition Officer is not to be treated as a Judgment of the Trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(only relevant portion excerpted) Suffice for our purpose to emphasise the Court's dicta holding the reference made to a Court under Section 18 of the Act to be an original proceeding requiring the Court to determine the market value of the property on the basis of the material produced before it treating the claimant as the dominus litis occupying the position of the plaintiff. These are also aspects referred to and highlighted in the Referral Order made by the Bench. It is enough to point out that in the light of the foregoing dicta of the Supreme Court, without more, the claimant can now make bold to claim a compensation which is different and much more than what he had claimed before the L.A.O; besides he can also make a claim even if he had claimed nothing towards compensation before the L.A.O. As Section 25 of the Act now stands a claimant can boldly approach the Court and ask for whatever compensation he desires to seek provided he is able to substantiate it by adducing adequate evidence.
8. We notice that the Gujarat High Court has taken a view similar to that of the Supreme Court in Chimanlal's case referred to supra. The Decision of Gujarat High Court is earlier in point of time having been disposed of on the 14th of March, 1986. Therein Their Lordships having noticed the history of the amendment and the difference between the amended Section 25 vis-a-vis the Section as it stood originally and concluded that in view of the sea-change brought about by the amendment, omission to make a claim before the L.A.O. or claiming a lesser compensation before the L.A.O. will not hinder the claimant from claiming any compensation for the first time before the Court or from claiming an higher compensation before Court. Their Lordships observed at page 59:
"Section 25 as it stands now obviates the necessity of any claim being led in response to the notice under Section 9 of the Act, because the only limitation on the power of the Court which has now been prescribed under the amended Section 25 is that the amount of compensation awarded by the Court shall not be less than the amount offered. In other words, the Court cannot in a reference application reduce the amount of compensation as offered by the Land Acquisition Officer. The resultant position emerging from the amended Section is that even without any such claim the Court can award compensation in excess of what has been awarded by the Collector, which position was not available prior to 1984 since there was a limitation also on the power of the Court in the preamended Section that the Court would not award compensation beyond that claimed by a person interested. In other words, the position prior to 1984 was that failure to make a claim despite receiving notice under Section 9 Without sufficient cause precluded the Court from awarding a sum in excess of Collector's award."
In SPL. TAHSILDAR, LAND ACQUISITION, YERRAGUNTLA v. K.REDDY, the Decision of Supreme Court in Chimanlal's case was followed by His Lordship K. Ramaswamy who adverted to it and observed at page 126:
"The first question, therefore, is whether it is incumbent upon the Claimants to plead and prove that they are the owners of the sub-soil mineral rights. In Chimanlal v. Spl. Acquisition Officer, Poona, , Thakkar. J speaking for the Court held that the Court has to treat the reference as an original proceeding before it and determine the market value afresh of the basis of the material produced before it. The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the material produced before the Court. Thereby, it is settled law that the claimant is a plaintiff and the reference is an original proceeding to determine the market value afresh. It is for the claimant to produce the material evidence for enhancement.
Regard being had to the catena of Decisions referred to supra, more so in the light of the Decision in Chimanlal's case rendered by the Supreme Court by which we are bound that the claimant can seek compensation without any pre-condition or restraint being no longer res-integra, we must hold:
(1) the claimant being free to ask and obtain compensation after making an appropriate demand before Court subject to making good the claim by substantiating it by adequate evidence it would not be necessary for the claimant to explain away the circumstance under which he made no claim or made a smaller claim before the LAO. In view of the amended provision of Section 25 of the Act he is no longer under any obligation to support his conduct before the L.A.O. in not making a claim or in making a lesser claim, and (2) in the light of the discussion on the ambit of Section 25 after its amendment, the contrary dicta in Kalburgi's case cannot be supported more so in the light of the Decision of the Supreme Court in Chimanlal's case and has necessarily to be treated as per incuriam and therefore dissented to and overruled.
These being our Answers to the Questions formulated by the Bench we direct the matter to go back to the Bench for further consideration.