Patna High Court
Sushila Devi And Anr. vs State Of Bihar And Ors. on 23 April, 1963
Equivalent citations: AIR1963PAT469, AIR 1963 PATNA 469
JUDGMENT Ramratna Singh, J.
1. These twenty-seven appeals arise out of one judgment of the Third Additional District Judge, Patna, governing 26 land acquisition cases referred to the District Judge of Patna under Section 18 of the Land Acquisition Act. The State of Bihar has preferred 26 appeals, one in respect of each case and First Appeal No. 399 has been preferred by the claimants-respondents of First Appeal No. 433 preferred by the State. The total area of land acquired in the proceeding in which these references were made was 20.43 acres made up of contiguous plots of land situated in three villages. The acquisition was made at the request of the Postal Department for construction of a colony for the postal employees. The notification under Section 4 of the Act was published on the 2nd February, 1955. The Collector's award was made on the 30th July, 1956, and possession of the Area was taken by the Collector on the 29th September, 1956. The Collector allowed compensation of land at the rate of Rs. 6400/- per acre or Rs. 200/- per katha besides the additional statutory compensation at 15 per cent.
The case of the claimants in the lower Court was that the compensation allowed in the Collector's award was too low, and the market value of the land was at least Rs. 1000/-per katha. They also pleaded that all the acquired plots of land had potential value as the area was fast developing, and these plots of land provided excellent sites for constructing houses. On the other hand, it was contended on behalf of the State that the compensation awarded by the Collector was sufficient and in certain cases the applicants were debarred under Section 25 of the Act from making any higher claim on the ground that they had not made any claim after service of notices under Section 9 of the Act. The learned Additional District Judge assessed the market value in February 1955 for the land acquired at Rs. 600/-per katha; and he rejected the plea based on Section 25.
2. There was a special claim for compensation lot severance in respect of plot No. 32 in Land Acquisition Case No. 176, corresponding to First Appeal No. 399 in this case, the whole of plot No. 40 and 50 acre out of 54 acre of plot No. 32 were acquired. In the remaining area of .04 acre of plot No. 32, there were admittedly some garages and four rooms before the service of notice under Section 4 of the Act to be used as the out-houses when the main building would be constructed and this area was excluded from acquisition. As the land on all the sides of the outhouses had been acquired and the claimant could not make any use of the outhouses, the claimant claimed Rs. 20,000/-as compensation for severance; but the learned Judge allowed only a sum of Rs. 1,000/-, as the cost of removing the materials and depreciation in value of materials.
in this judgment, it is ,not necessary to go into the question of the compensation for severance in respect of .04 acre of plot No. 32, because Mr. K.D. Chatterji, who appeared on behalf of the State, informed this Court that the State had decided to leave out the entire plot from the acquisition and, therefore, no compensation for any portion of this plot should be allowed; and, the amount of compensation withdrawn must be refunded by the claimants. The learned Advocate for the appellants in First Appeal No. 399 agreed to these terms. With the consent of the parties, therefore, it is ordered that the whole of plot no. 32 shall be released from acquisition; and the appellants shall refund the amount of compensation withdrawn by them; and the Collector or the Postal Department shall make over possession to the claimants within two weeks of the refund of the compensation money in respect of plot No. 32.
3. First Appeal No. 433 by the State of Bihar relates to the same land as is covered by First Appeal No. 399 of 1958. These two appeals arise out of Land Acquisition case No. 176 of 1957, and the claimants are Basudeo Lal Agarwal and his wife Shushila Devi. In the award of the learned Additional District Judge, there is a mistake inasmuch as no amount has been mentioned against the amount of compensation for trees, while the Collector's award shows a sum of Rs. 1092/- against this item. This amount will be inserted in the award of the learned Additional District Judge, but the amount of Rs. 1,000/- as compensation for the loss suffered on account of severance of the construction in plot No. 32 must be deducted in view of the aforesaid consent order.
4. In this Court only the market value of the land assessed by the Court below has been challenged by the State as well as the appellants in First Appeal No. 399 and those claimants who have filed cross-objections in First Appeal Nos. 437 to 440 and 442. All these claimants claim at least Rs. 1,000/- per katha as the value of the acquirer land, while Mr. Chatterjee submitted on behalf of the State that the value assessed in the Collector's award, that is, Rs. 200/- per katha was correct. A large number of sale deeds (Exts. 8 series) were filed on behalf of the claimants, and one sale deed (Ext J) on behalf of the State. From these documents, it appears that plot No. 54 was sold in June 1953 at the rate of Rs. 600/- per katha, plot No. 32 in June 1948 at the rate of Rs. 650/- per katha and plot No. 40 in February, 1949 at the rate of Rs. 700/- per Katha (see Exts. 8 to 8/b), plot No. 45 in April, 1949 at Rs. 700/-per katha and plot No. 19 in December, 1953 at Rs. 600/-per katha (see Exts. 8/g and 8/n). These plots are included in the area acquired. The vendors and vendees of these sale deeds or their agents have been examined in support of these transactions and their passing of consideration and the finding of the learned Additional District Judge that all these transactions were genuine was not challenged.
5. Then, there are sale deeds in respect of plots of land in the close vicinity of the acquired plots. Ext. 8(f) is a sale deed of January, 1950 in respect of a portion of plot No. 113 in village Mahuli in favour of Mr. R.P. Katriar, an advocate of the High Court; and it shows a sale rate of Rs. 800/- per katha; Ext. 8(d) is a sale deed of October, 1950 in respect of plot No. 1124 in village Dujra in favour of one Bhagirath Singh; and; it shows a sale rate of Rs. 800/- per katha. Ext. 8(o) is another sale deed of November, 1950 in respect of plot No. 1119 of village Chak Arab showing a sale rate of Rs. 1300/- per katha. Ext. 8(e) is a sale, deed of February, 1952 in respect of a portion of the same plot; and it shows 3 sale rate of Rs. 1075/- per katha. A portion of the plot covered by this sale deed is behind the portion covered by Ext. 8 (o); and the evidence shows that there were approach roads to the land covered by Ext. 8 (o).
The learned Additional District Judge did not take these documents into consideration on the plea that the vendees thereof were not examined and it was not known under what circumstances they made the purchases. But A.W. Kanoo Gope, one of the executants of Ext. 8 (d), has supported this transaction; and in cross-examination his statement on this point has not been challenged. Similarly, A.W. Ragho Rai, one of the executants of Exts. 8 (e) and 8 (o), has spoken about these transactions; and his statement on this point has not been challenged in the cross-examination. The non-examination of the vendees named in these three sale deeds is, therefore, not at all material. It is true that neither the vendor nor the vendee of Ext. 8(f) has been examined; but there is no reason to thing that Mr. Katriar would mention an exaggerated price in his sale deed or that he would give a fancy price for the land purchased by him.
In this connection, it will be convenient to refer to another sale deed (Ext. 8/c) dated the 24th October, 1953 in respect of plot No. 111, which is almost adjacent to the land purchased by Mr. Katriar. This sale deed is in favour of Shri Ras Bihari Singh, another Advocate of the High Court. Between the plots of land covered by his sale deed and the sale deed of Mr. R.P. Katriar, there is the house of one Sumitra (sic) Devi. Mr. Ras Bihari Singh has said that his land was similar to the land of Mr. Katriar at the time of purchase. Mr. Ras Bihari Singh paid Rs. 1250/- per katha, but Mr. Katriar had paid only Rs. 800/- per katha. The learned Additional District Judge rejected the sale deed of Ras Bihari Singh on account of his statement that there was a competition between him and a relation of Mr. Katriar, and, therefore, he had to increase his initial offer of Rs. 1000/- per katha, the rate at which Sumitra Devi had purchased her land, to Rs. 1250/- per katha.
Though the plot of Shri Ras Bihari Singh is at a short distance from the land acquired, the learned Judge did not take into consideration his sale deed for three reasons, namely, that he agreed to pay a fancy price on account of the fact that he had no house at Patna, that there was a competition between him and a relation of Mr. Katriar, and that the land is near the High Court, where he practises. But, for these reasons, it will not be fair to ignore this transaction completely; rather this transaction should be treated in the instant case as an evidence of the sale rate of Rs. 1000/- per katha. Then, there is no valid reason at all to ignore the sale rate given in the sale deed of Mr. Katriar.
6. The area under acquisition extends almost up to the houses of Mr. Katriar and Mr. Ras Bihari Singh on the east, though the major portion of the same is towards the west behind the Women's College. The nearest pucca road to the acquired land is Boaring Road at two furlongs to the west. The Bailey Road is, of course, very near; but the Women's College Compound and the land belonging to the Khas Mahal intervene between this road and the acquired area. Even according to Ext. F, a document of the State, the acquired area would have proved to be an excellent building site, provided there were approaches.
The learned Additional District Judge, therefore, allowed a comparatively low market value, that is, Rs. 600/-per katha; but he has not considered the fact that this area is developing fast, and, therefore, the potential value of the acquired area is very great. Moreover, there is evidence also to show that there were some approach roads, though Kutcha; for instance, there is the unchallenged evidence of five witnesses that there was a 'kutcha' road extending over to plots 32 and 40 over which trucks used to pass. In the sale deed (Ext. 8/0) in respect of acquired plot No. 1119, the western boundary is 'dagar' or road; and A.W. Ramlakhan, Prasad has said that a 'kacha' road from Boring Road goes up to plot No. 40, and it is in front of plot No. 32. Mr. Chatterji pointed out that in the sale deeds of Mr. Katriar and Mr. Rash Bihari Singh, there were 'kucha' roads on the east; but it is remarkable that Mr. Katriar's sale deed is of the year 1950 and though the sale rate of Mr. Rash Bihari Singh's land is of 1953, the sale rate was much higher; whereas the notice under Section 4 of the Land Acquisition Act in the instant case was published in February, 1955.
Mr. Chatterji referred to the evidence of Shri Shyamakant Misra, the Land Acquisition Officer of Patna, from 1955 to July, 1956, in support of his submission that the acquired area was of very little value when the Collector took possession after the award. This officer had never gone to the acquired land before he inspected the same on the 2nd June, 1955; and, even then his local inspection seems to have been very perfunctory. He could not say the exact position or extent of the beaten track (which he admits near plot No. 32), nor the fact whether this track was connected with the Boring Road. Mr. Chatterji also referred to the notes of local inspection made by the Additional District Judge on the 9th February, 1958. In addition to the description of the acquired area given earlier, this note shows that the beaten track connecting the acquired area with the Boring Road was in existence even then. The land was uneven in the sense that it sloped towards the south, east and west gradually, and in the middle portion, which was on the highest level, there were a number of 'khajoor' trees described as Khajoorbana. Towards the north, west and south of the acquired land, the learned Judge saw houses which had been recently constructed and he also saw building to the west also after some distance. The learned Judge also thought that this area could be a good site for building purposes; provided (sic) the lands of the lower level might have to be filled up. This description of the acquired area by the Additional District Judge shows its potential value; and it goes in favour of the claimants.
It is well settled that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser for the land in the particular portion and with the particular potentialities, that is, not only by reference to the use to which the land is being put on the date of the notification under Section 4 (i) of the Act, but also by reference to the uses to which it is reasonably capable of being put in the future; and in the case of land possessing the possibility of being used for building purposes, evidence of the prices paid in the neighbourhood for land immediately required for such purpose has to be taken into consideration (see Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, AIR 1939 PC 98).
7. Then, Mr. Chatterji referred to the single sale deed (Ext. J.) dated the 17th September, 1954 in respect of a portion of plot No. 20 of village Mahuli, executed by one Sukhu Gope in favour of one Sri Harinandan Sharma. This sale deed is in respect of 25 kathas, and it shows a sale rate of Rs. 200/- per katha; and it has been rightly pointed out by the learned Additional District Judge that the vendor, Sukhu Gope, has mentioned certain circumstances which compelled him to sell this land at such a low rate. He already owed ijara money to a certain creditor and he had also other creditors who were making pressing demands for their dues. An Additional reason given by the learned Judge is that plot No. 1119, which is separated by only three small plots from plot No. 20, was sold under the sale: deeds (Exts. 8/0 and 8/e) dated the 17th November, 1950 and 8th February 1952, respectively, at the rate of Rs. 1300/- and Rs. 1075/- per katha. The learned Judge, therefore, rightly refused to take Ext. J. into consideration. He also ignored sale deeds (Exts. 8/h and 8/i) dated the 22nd December, 1952 and 31st October, 1952, respectively, in respect of plots 67, 68 which showed sale rates at Rs. 2800/- and Rs. 2250/- per katha respectively for good reasons; and the claimants who filed these documents did not rely on the same in this Court.
8. The subject-matter of First Appeal Nos. 399, 437 and 440 and 442, in which the claimants have contested the value fixed by the lower Court, relates to plots 32, 33, 34, 35, 36, 37, 40, 46, 47, 50, 51 and 52. All these plots are in very close proximity to one another; and it is quite fair to assess one rate of market value for all these plots. In view of the foregoing discussions, the sale rates contained in the sale deeds (Exts. 8 to 8/g and 8/o) can be safely taken into consideration for assessing the market value, except that the sale rate of Mr. Ras Bihari Singh's sale deed may be reduced from Rs. 1250/- to Rs. 1000/-per katha for the purpose of this case. Taking an average of the sale rates in all these documents, the rate of Rs. 830A per katha as the market value of the said plots on the 2nd February, 1955 seems to be quite reasonable and fair; and I would assess the market value at this rate.
9. In the other case, the claimants have not filed any appeal or cross-objection; but when Ext. J. is ignored, there is no reason to reduce the market value assessed by the learned additional District Judge in respect of the land of those claimants.
10. No other point was raised by the claimants, that is, the appellants or the respondents; but the learned Government Pleader submitted that, in view of the provisions of Section 25 of the Land Acquisition Act, the claimants were not entitled to any compensation in excess of the amount awarded by the Collector in sixteen appeals, namely, Nos. 434, 435, 439, 440, 442 to 449, 453, 455, 457 and 459. Section 25 reads thus:
"25 (1) When the applicant 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 Collector under Section 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."
11. Mr. Chatterji submitted that in ail these cases, the reference made to the Court of the District Judge under Section 18 of the Act by the Collector showed that, though both the general and special notices under Section 9 had been served upon the claimants, no statement of claim had been filed by any of them. But the facts are otherwise. In the cases corresponding to First Appeal Nos. 439 and 440, the claimants did file objections under Section 9, and these objections are printed in the paper book of this Court. In the cases corresponding to First Appeal Nos. 434, 435, 444, 445, 446, 448, 455 and 459, in the petitions filed by the claimants under Section 18 after service of notice under Section 12 (2) of the Act, it is clearly stated that the claimants had no knowledge of the Collector's award or the rate of compensation allowed under that award before the 22nd September, 1956 when the notices under Section 12 (2) were served.
In the cases corresponding to First Appeal Nos. 443 and 457, the claimants have in their petitions under Section 18 said that they had filed objections under Section 9, and in the case corresponding to First Appeal No. 453, the claimant said in his petition under Section 18 that no notice had been served upon him earlier. In the petition under Section 18 relevant to First Appeal No. 442, it is stated that the claimants had raised an objection that they were not made parties earlier and that they were filing this petition after receiving notice from the Land Acquisition Officer asking them to accept the compensation. In this petition they demanded more than Rs. 1,000/-per katha as the value of the land.
In the case corresponding to First Appeal No. 447 A.W. Tejeshwar Prasad Singh, husband of the claimant, stated before the learned Additional District Judge that no notice under Section 9 had been served either on him or his wife, and this statement was not challenged in his cross-examination. The claimants in all these cases claimed Rs. 1,000/- or more per katha as the value of the acquired land. Claimant Dwarka Mahto (A.W. 21) denied, in a petition under Section 18 dated the 27th September, 1956, the service of any notice before the receipt of a notice under Section 12 (2); but in his evidence he admitted his signature (Ext. C) on a notice. To this notice, I shall revert later; but it is established in the cases relating to the appeals, other than first appeal No. 449 that either objections under Section 9 were filed or the claimants denied any knowledge about the proceedings earlier.
The question now is; on whom does the onus to prove service or non-service of notice tinder Section 9 lie? In my opinion, the onus is upon the State to prove that the notice was served on those who have denied the service of the notice or knowledge of the proceedings in time for an objection. It is true that the claimant has to show sufficient reason to escape the penalty under Section 25; but the condition precedent to the imposition of this penalty is the service of notice under Section 9. The ordinary rule is that the authority which seeks to impose a liability on, a person under a statute must comply strictly with the condition precedent provided in that statute; and, therefore, the State has to prove the service of notice under Section 9. This view is supported by a bench decision of the Calcutta High Court in Rameshwar Singh v. Secretary of State, ILR 34 Cal 470, in which some decisions of the Privy Council and other English and American decisions were relied upon. Their Lordships said:
"It is an elementary proposition that statutory provisions in respect of acquisition of lands must be strictly complied with, and the burden of proof of compliance rests upon those, who claim statutory powers or base their title upon the exercise of statutory provisions."
Section 9 enacts:
"9 (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for alt interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at 3 time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land Is situate.
(4) In any case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1886."
It will be noticed that a general notice--public notice required by Sub-section (1) has to be served at convenient places on or near, the land to be taken possession of as laid down in Sub-section (2); but, under Section (3), a personal notice has, in addition to the public notice, to be served on the occupier of the land, or other interested persons or their authorised agents. If the land be not in actual occupation of any person, then a general notice might be sufficient, and a special notice may not be necessary; but where the land is in actual occupation of a person, namely, a raiyat or an under raiyat, the specie notice is absolutely necessary and non-service of such a notice is a sufficient ground for escaping the penalty imposed under Section 25. This view is supported by several decisions.
12. In Laxmanrao Kristrao v. Provincial Government of Bombay, AIR 1950 Bom 334, Chagla, C. J. (who delivered the judgment of the Bench) has very lucidly explained the provision of Sub-section (3) of Section 9 in the following passage.
"It will be noticed that an obligation is cast upon, the Collector to serve a notice on every occupier of the land which is to be acquired. There is also an obligation cast upon him to serve a notice on persons who are known to him to be interested in the land or whom he believes to be interested in the land. Therefore, the Legislature has, made a clear distinction between occupiers of the land and persons who are interested in the land. As far as occupiers are concerned, the Collector must serve a notice up-on the occupier. As far as persons interested are concerned, the obligation is cast upon him only if he knows, of such persons or believes that there are such persons. With regard to the first class the obligation is absolute; with regard to the second class the obligation is not absolute but is relative and it only arises provided the Collector has knowledge or belief with regard to the existence of the second class of persons."
His Lordship also referred to the decision of Varma, J. of this Court in Soma Singh v. Jaigobind Pande, AIR 1935 Pat 42, in which it was held that personal notice under Section 9 (3) was necessary in the case of an occupancy raiyat and distinguished it on the ground that it was the case of an occupier of the land as distinguished from persons who are known or believed to be interested in the land.
In Venkatarama Iyer v. Collector of Tanjore, AIR 1930 Mad 836, it was held that the stringent provision of Section 25 (2) can only be applied after a notice which is strictly in compliance with Section 9 (2) and (3) has been served upon the landowner. Under Section 9 (3) the occupier of the land is entitled to such notice as will give him in the same manner as the person mentioned in Section 9 (2), fifteen days interval in which to state before the Collector the nature of his interest In the land and the particulars of his claim for compensation, and, where the notice under Section 9 (3) does not give the claimant a fifteen days notice as required, It amounts to 'sufficient cause' within the meaning of Section 25 (3) for the claimant's omitting to make a claim, and he thereby escapes the stringent provisions of Section 25 (2). It was further held in that case that where an officer whose duty it is, to apply the provisions of the Land Acquisition Act commits an error of procedure, every presumption should be made in favour of the party likely to have been prejudiced by the error.
In Nitai Dutt v. Secretary of State, AIR 1924 Pat 608, a bench of this Court considered the different provisions, of Section 25. In that case, the case of the claimant was that, though he had omitted to make claim before the Col-lector under Section 11, there was sufficient reason for so doing, that reason being, as stated in his petition, that he received no notice as provided under Section 9. Dawson Miller, C. J. (who delivered the judgment) said that, if the claimant has made out such a case, it was quite clear that he was entitled to come within Section 25, Clause 3, and ask the Court to reconsider the question upon the grounds stated in his petition for reference. The learned Judge, who decided the reference, refused to grant the claimant time to produce certain documents to prove the rate for the land which he had asserted and observed:
"The presumption is that notices were duly served and the reference contains a statement to that effect. It was" for the objector to rebut that presumption and the allegation was evidently only an after thought."
But the learned Chief Justice said that no such presumption arose in the case for the simple reason that, in the absence of any evidence, the Court did not know what the actual facts were.
These decisions support the view that the absence of service of notice on the occupier under Section 9 (3) constitutes a sufficient cause to escape the penalty imposed by Section 25. Mr. Chatterji relied on the decision in the, Secretary of State v. Bishan Dat, ILR 33 All 376; but this case is of no help, as it does not deal with the case of an occupier under Section 9 (3). It merely lays down that, in view of Section 9 (2) the owner of property about to be acquired should appear and state his claim in the manner provided by the clause so as to enable the acquisition officer, to make a fair, reasonable and proper award based upon a proper inquiry; and, Section 25 (2) makes the refusal or omission to comply with the provisions of Section 9 (2) without sufficient cause an absolute bar to the obtaining of a greater sum than that awarded by the Collector.
13. It has, therefore, to be seen in the instant case whether the State has been able to prove the service of notices under Section 9 (3) on the different claimants. The mere fact that there is a note in the references under Section 18 that the notice under Section 9 had been served is not sufficient to prove the issue or service of such notice. These notes are made by clerks and they cannot be said to be notes made by the Collector or the and Acquisition Officer, in the absence of any evidence to that effect. It is remarkable that the State did not firing on record any service return of the notices or any order-sheet of the Land Acquisition Officer or the Collector, to show that the notices were issued or served on the occupiers of the land acquired; and it was admitted at the tar that all the claimants were in occupation of the land as raiyats. Only one service return of notice, was filed in this case on behalf of the State; and it is Ext. C which shows that personal notice was received by Dwarika Mahton (the claimant of First Appeal No. 449) on the 17th May, 1956. There is no explanation why the notices served on other claimants were not brought on the record.
Even oral evidence was not adduced on behalf of the State regarding the issue or service of the notices. Further, before the learned Additional District Judge the objection under Section 25 was taken in respect of only three cases, which correspond to First Appeal Nos. 443 449 and 458; and in this Court Mr. Chatterji did not press this objection in respect of First Appeal No. 458. In the circumstances, it must be held that in ail the cases, except the case corresponding to First Appeal No. 449, some of the claimants filed objection under Section 9 and others could not do so on account of ignorance of the proceedings inasmuch as notices under Section 9 had not been served on them, and therefore, Section 25 is not a bar to their claims.
14. In the case corresponding to First Appeal No. 449 the learned Judge held that a notice under Section 3 of the Act had been properly served on the claimant Dwarka Mahto and relying on the observation of Macpherson, J. in the case of Gokul Krishna v. Secretary of State, AIR 1932 Pat 134, he further held that, inasmuch as the data for filing the objection was exactly the 15th day after the service of notice, it was a notice in accordance with law. But the learned Judge found at the same time that, inasmuch as the notice purports to be one under Section 9 (2) and service of special notice under Sub-section (3) had not been proved, Section 25 was not a bar to the claim of Dwarka Mahton in excess of the amount awarded by the Collector.
But the learned judge seems to have been under some misapprehension. The notice is in a printed form, with the heading of Section 9 (1) and (2) of the Act. But above this printed heading is the name of Dwarka Mahta written in ink. Then, on the reverse Dwarka Mahto has put his signature on the 17th May, 1956, in token of receipt of the notice, which fact he has admitted in his evidence. There is no separate form prescribed for notice under Section 9 (3); rather the language of Sub-section (3) shows that the contents of the notice must be the same as the contents of the public notice under Sub-sections (1) and (2). The body of the notice (Ext. C) shows that the claimant was required to make his claim by the 1st June, 1956. Hence, it was a valid personal notice under Section 9 (3) on Dwarka Mahto.
Still the question remains whether sufficient time was given to Dwarka in accordance with the provisions in Section 9 according to which the time mentioned in the notice must not be "earlier than fifteen days". The date for submitting the claim in the instant case was the 1st June, 1956, and the date of service of personal notice was the 17th May, 1956. Hence the date fixed was exactly fifteen days after the service of notice. In other words, the date fixed was not "earlier than" fifteen days, and, therefore, not contrary to the provision of the statute. This view is supported by the observations of Macpherson, J. in the aforesaid case of Gokul Krishna, AIR 1932 Pat 134, where also the date fixed was exactly 15 days after the service of notice was acknowledged. It must, therefore, be held that in the proceeding relating to First Appeal No. 449 notice under Section 9 had been properly served on the claimant Dwarka Mahto in time; and, as Dwarka Mahto did not admittedly file any objection on receipt of the notice, he could not get any amount of compensation in excess of the amount awarded by the Collector on account of the provisions of Section 25.
15. Then remains to be considered a petition of Shri Radheyshyam Agrawal who claims compensation in respect of plot No. 51, which is a part of the subject-matter of the case to which First Appeal No. 454 relates. He at first filed 3 petition in First Appeal No. 456 to be impleaded as a party, and by order No. 12 dated the 18th December, 1961, he was impleaded as a party to this appeal. Subsequently, however, he filed a petition in First Appeal No. 454 stating that by mistake he had filed the earlier petition in First Appeal No. 456 under the impression that plot No. 51 was involved in that case, but subsequently he learnt that it was involved in First Appeal No. 454 and, accordingly he was impleaded as a party in this appeal.
His submission is that, inasmuch as the awardee, namely, Shri Brij Behari Gope, admitted before the learned Additional District Judge in a petition filed on the 11th September, 1958 that he had no concern with plot No. 51, and requested the Court to order the payment of the proportionate amount of the award, as may be found payable in calculation to Shri Radhey Shyam Agrawal, this Court should split up the award in respect of this case and allot the proportionate compensation for plot No. 51 separately to Radhey Shyam Agrawal.
But the petition alleged to have been filed by Brij Behari Gope before the learned Additional District Judge has not been brought on record, and the award prepared by the learned Judge also does not show the name of the petitioner, Radhey Shyam Agrawal. This award relates to several plots and is prepared in the name of Brij Bihari Gope. It is possible that Radhey Shyam might be interested in plot No 51; but in view of the fact that the learned Advocate for Brij Bihari Gope has opposed this prayer and the petition alleged to have filed by Brij Behari Gope before the learned Additional District Judge has not been brought on the record, it is not possible to allow the prayer of Radhe Shyam and it must be rejected. He may, however, take action hereafter in accordance with law to recover his share of the compensation money in respect of plot No. 51 from Brijbehari Gope.
16. In view of the above findings:
(1) First Appeal No. 449 is allowed and the aw of the lower Court in the corresponding case No. 268/112 of 1957 which Dwarka Mahto is the claimant, is set aside and the, Collector's award is restored:
(2) In First Appeal Nos. 399 and 433, corresponding to case No. 176/106 of 1957, the acquired area of plot No. 32 will be released from acquisition, as agreed to by the parties, and the proportionate amount of compensation (including the compensation for severance and the statutory compensation of 15 per cent) shall be refunded by the claimants, as indicated in the second paragraph of the judgment and the mistake in respect of trees in award of the Court below, indicated at page 5 of this judgment, shall be rectified.
(3) In first Appeal Nos. 399 and 433, so far as they relate to the acquired plot No. 40, and in cross-objections in First Appeal Nos. 437, 438, 439, 440, and 442, the market value of the acquired land shall be increased from Rs. 600/- to Rs. 850/- per katha and consequently, there will be corresponding increase in the amount of solatium at 15 per cent of the market value; and (4) In the other appeals, the awards of the Court below shall be confirmed.
17. In the result, first Appeal Nos. 399 and 449 and cross-objections in First Appeal Nos. 437, 438, 439, 440 and 442 are allowed as indicated above and the other appeals are dismissed. The proportionate compensation that has to be refunded in Land Acquisition Case No. 176/106 comes to Rs. 12,190/- according to the Government Pleader; but the office will check the amount and enter the correct amount in the decree. The learned Government Pleader also added in the amount to be refunded Rs. 1090/- the amount which the claimants received as interest at 6 per cent per annum from the 29th September, 1956 to the 24th March, 1958; but this amount shall not be refunded, as the claimants got the amount of interest an account of dispossession. In first Appeal No. 449, the amount of compensation shall be reduced to the amount awarded by the Collector. Parties will bear their own costs of the appeals and cross-objections.
Kanhaiya Singh, J.
18. I agree.