1. This appeal is against the decision of the District Judge, Visaknapatnam, in O.P No. 49 of 1960 on the file, which arose out of a reference under Section 18 of the Land Acquisition Act (I of 1894).

2. For the purpose of extension of a Dairy Farm at Visakhapatnam, the Government issued a Notification on 16-5-1949 under Section 4(1) of the Land Acquisition Act (hereinafter called the Act), that 7 items of property of a total extent of Ac. 7-70 situated in the village Chinna Gadali will be acquired. The procedure under the Act was followed, and the necessary Notifications and notices issued by the Land Acquisition Officer. For the first five items, he awarded compensation at Rs. 300 per acre, and in addition 15 per cent solatium. For items 6 and 7, he awarded compensation at Rs. 50 per acre for the land alone, and valued the trees separately. In item 3, there were certain structures belonging to claimants 3 and 4, which were valued at Rs. 4,551, out of which Rs. 1,174 was awarded to the 3rd claimant, and Rs. 3,377 to the 4th claimant. The owner of items 6 and 7 accepted the award and did not ask for any reference.

3. Claimants J to 6 withdrew the amounts deposited by the Land Acquisition Officer under protest, but asked for a reference in respect of compensation for items 1 to 5 under Section 18 of the Act. They claimed compensation for land at Rs. 2,000 per acre, though they accepted the compensation awarded in respect of the structures.

4. On the basis of the petitions under Section 18 of the Act, reference was made to the Sub-Court, Visakhapatnam and it was numbered as O.P 86/1958. But the same was transferred to the District Court, Visakhapatnam, and numbered as O.P 49/1960.

5. The learned District Judge, on a consideration of the law and the evidence in the case, enhanced compensation by Rs. 700 per acre, and awarded compensation for the 100 palmyrah trees at Rs. 5 per tree, and a sum of Rs. 25 for the soapnut tree, in all Rs. 525. He directed payment of 15 per cent solatium, and also interest.

6. Aggrieved by this order the Land Acquisition Officer has preferred this appeal, and it only relates to the compensation awarded in respect of items 1 to 5, and the trees thereon:.

7. Sri Shanker Rao, the learned Government Pleader has raised the following contentions:

(1) The claimants had not put forward their claim to compensation as per the notice under Section 9 of the Act, and consequently, they are debarred from claiming any enhancement in excess of what was awarded by the Land Acquisition Officer.

(2) Even granting that the Court, on a reference under Section 18 of the Act, has power to excuse the failure of the claimants to make a claim, that could be done only on an application in writing, and that not having been clone, the Court below had no jurisdiction to award any enhanced compensation.

(3) The compensation for the lands awarded by the lower Court is excessive.

(4) In any event, compensation ought not to have been awarded in respect of the trees.

8. I shall consider the validity of points 1 and 2 first.

9. The first submission of the learned Government Pleader is as follows. Under Section 9 of the Act, the Collector causes public notice to be given stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land, may be made to him. Such notice shall state the particulars of the land, and require the persons interested to appeal before him, and to state the nature of their interest 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 S. 8. The Collector may, in any case, require such statement to be made in writing, and signed by the party or his agent.

10. Under Section 11 of the Act, on the day fixed or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections, if any, which any person interested has stated pursuant to the notice given under S. 9 to the measurements made under S. 8, and into the value of the land (at the date of the publication of the notification under S. 4, sub-s. (1)), and into the respective interest of the persons claiming the compensation, and shall make an award.

11. Section 25 of the Act deals with the consequence of not making the claim pursuant to the notice under Section 9 of the Act.

12. According to Section 25(1) of the Act, 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 Section 11. Section 25(2) of the Act says that 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. As per Section 25(3) of the Act, 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.

13. In other words, the effect of Section 25(2) and (3) is that without sufficient cause if S. 9(2) is not complied with, an absolute bar arises as to the obtaining of a greater sum than what is awarded by the collector. The rigour of Section 25(2) of the Act is mitigated by S. 25(3). According to it, if the Court is satisfied that there was sufficient reason for the appellant's lapse under S. 9, the Court can award a sum in excess of the sum awarded by the Collector. Thus, the Court on being satisfied about the bona fides of the claimants' conduct, can remove the penalty imposed by S. 25(2), and grant compensation in excess of what has been awarded by the Land Acquisition Officer.

14. Therefore, the question for consideration before the Court is, whether or not the refusal to make a claim or omission to make a claim is without sufficient reason or for sufficient reason entailing the respective consequences mentioned in sub-s. (2) or (3).

15. The language of Section 25(3) of the Act does not expressly state that there should be an application in writing to satisfy the Court that there was sufficient cause for the applicant omitting to make a claim pursuant to the notice under S. 9. The language only suggests that there should be a sufficient cause for the omission, which should be allowed by the Judge. In other words if at the time of the hearing, the claimant contends that there was a sufficient reason for his failure to make the claim and that reason was accepted or allowed by the Judge, the penal consequences would not follow.

16. The learned counsel on both the sides state that there is no case, one way or the other, under Section 25(3) of the Act that there should be an application in writing under Section 25(3) of the Act But there are cases under Section 5 of the Limitation Act.

17. Section 5 of the Limitation Act is in the following terms:

“Any appeal or application for a review of Judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.”.

18. That section is made applicable to appeals under the Madras Hereditary Village-Officers Act, 1895. A Bench of this Court consisting of Chandra Reddy, J. (as he then was) and Umamaheswaram. J. had considered whether an order of the District Collector under the Madras Hereditary Village-Officers Act, (III of 1895) entertaining an appeal under that Act after the period prescribed was valid or not. It was argued that there was no application in writing under Section 5 of the Limitation Act, and the Collector could not have condoned the delay, and that contention was rejected in the following terms:

“The contention that the present order of the District Collector is invalid because he could not entertain a barred appeal without a petition to excuse delay supported by an affidavit setting out the reasons for the delay is equally without any force. It is not necessary that there should be a formal petition to excuse delay. It is always open to a Court or a tribunal to condone the delay if the person concerned is able to convince it that there were justifiable grounds for the delay in presenting an appeal or a petition. The filing of a formal petition for excusing delay is not the sine qua non for the exercise of that power”

(Vide C.V.G Chowdary v. Doppalapudi Seshaiah, 1957-2 Andh WR 106).

19. The same principle was laid down by a Bench of the Allahabad High Court consisting of Sulaiman, Chief Justice and Bennet, J. in Mt. Kulsoom-un-Nissa v. Noor Mohammad, AIR 1936 All 666.

20. The language of sections of the Limitation Act is in pari materia with Section 25(3) of the Land Acquisition Act. According to Section 5 of the Limitation Act, ‘when the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period,’ the appeal or the application may be admitted after the period of limitation prescribed. Similarly, as per Section 25(3) of the Act, “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.

21. Considering the fact that the language of the two statutes is similar, and also the fact that an application under of the Code of Civil Prodedure need not always be in writing, and can be oral, I do not consider that the Court cannot condone the omission to make a claim under S. 9 for sufficient reason merely because there is no application in writing for that purpose.

22. The judgment of the Court below clearly establishes that the claimants contended that their omission to put forward the claim was for a sufficient reason, and relied upon a number of circumstances to prove that fact, and the learned District Judge, on a consideration of those circumstances, and the evidence in that regard, condoned the omission of the claimants to make the claim. I, therefore, hold that this contention of the learned Government Pleader is devoid of force.

23. I shall now consider whether the District Judge was right in holding that there was sufficient reason for the omission of the applicants to make the claim.

24. Exhibits B-3 and B-4 were the notices in English issued by the Land Acquisition Officer under Section 9 of the Act, and they no doubt stated that the claimants should put their claim regarding the amount of compensation in writing. The claimants are ignorant and illiterate villagers totally unacquainted with English. There is evidence to show that on receipt of notices, they appeared on 29-5-1957. but not knowing that they had to make their claims in writing, they represented orally before the Land Acquisition Officer that they wanted compensation at the rate of Rs. 2,000 per acre. When they returned to their village and some one told them why they did not make a representation in writing, they sent a petition, Ex. B-5, dated 20-6-1957. That petition was sent by them not to the Land Acquisition Officer, but to the Collector, Visakhapatnam, claiming compensation at the rate of Rs. 2,000 per acre. The only witness examined on behalf of the Land Acquisition Officer is R.W 1, who admitted that the claimants orally demanded a higher compensation. Having regard to the evidence that the claimant made an oral claim for compensation at Rs. 2,000 before the Land Acquisition Officer, and sent a written claim to the District Collector, but that on account of their illiteracy, and ignorance of English, they failed to comply with the clause in the notice requiring them to claim in writing, and that their failure was only due to their ignorance, the District Judge held that the omission was not wailful, and, consequently, they are not precluded from claiming enhanced compensation.

25. In these circumstances, I am satisfied that the learned District Judge has exercised his discretion in accordance with law, and in a just manner, and it needs no interference in appeal.

26. Now I shall consider whether the compensation awarded by the learned District Judge is, in any way, excessive.

27. The extent of the land acquired, which is the subject-matter of this appeal, is Ac. 6-86 cents situated in the village of Chinna Gadali, which adjoins of the villages Pedda Gadali, and Sampa Palem. They are all Zarnindari, Ziraati dry lands situated in Vijayanagaram Estate, since taken over under the Zamindari Abolition Act.

28. The claimants adduced evidence regarding the income from the lands, and suggested that the method of capitalisation may adopted for arriving at the market value.

29. The evidence of P. Ws. 1 to 5 is not at all acceptable, and does not permit its being taken as the basis for the method of capitalisation. The District Judge, rightly held that it was not possible to take the income basis for determining the market value of the lands, and relied upon the sale-deeds. Unfortunately, there were no sales in the village of Chinna Gadali round about these lands. But as already stated, there is a sale-deed of the village Pedda Gadali, which is adjoining the village Chinna Gadali. Exhibit B-1 is a registered sale-deed, dated 25-8-1947 in favour of Vommi Yallayya (the 3rd Claimant) by one Seera Gangaiah. The sale-deed recited that the land is a part of patta No. 1800, survey No. 45 of an extent of Ac. 17-65 cents, and that land situate within the boundaries therein of an extent of Ac. 1-2 cents was sold.

30. The 3rd claimant is examined as P.W 1, and he deposed that the lands in Survey No. 82 which were acquired are dry lands, but they are fit for cultivation, that there are three wells in S. No. 82, and that the? market value of the lands was Rs. 3,000 per acre at the time of acquisition. (He obviously thought that time when there was an enquiry by the Land Acquisition Officer was the relevant time for determination of compensation.) He deposed that the lands were fit for raising crops like tapioca, tobacco, chillies, and vegetables, and that they are getting a net income of Rs. 500 to Rs. 1,000 per acre. His village is at a distance of six miles from Visakhapatnam. Ex. B-1 is the certified copy of the sale-deed under which he purchased Ac. 1-02 cents for Rs. 300. But the actual extent on measurement is only 40 eents. He stated that the land acquired is much superior to the land purchased by him under the original of Ex. B-1. The witness also deposed that Ex. A-2 is the sale-deed under which M. Chinnaiah purchased Ac. 1-5 cents to land of Pedda Godali village for Rs. 1,500, and that there are no wells in this land, and that the acquired land is better. He further deposed that there are 100 palmyrah trees in his S. No. 82, and that each tree would fetch Rs. 10, if cut, and that there is also a soapnut tree from which there is yearly income of Rs. 30.

31. It is very significant to note that this witness was not cross-examined about the fact that the land was measured, or that on measurement, the land was found to be only 40 cents in extent. In fact, there cannot be any doubt on this point as the only witness examined on behalf of the Land Acquisition Officer deposed that on measurement the extent of the land covered by Ex. B-1 was found to be only 40 cents.

32. The argument of the learned Government Pleader is that oral evidence regarding the extent ought not to prevail. I am unable to accept this contention. Mere recitals in the sale-deeds would not alter facts. There is no recital in Ex. B-1 that the land was measured at the time of the sale. A small fraction of big survey number covered by four boundaries was purchased by P.W 1. The parties are all illiterate, and the area was presumed to be and noted as, Ac. 1-2. There is nothing in law which prevents the 3rd claimant from proving that the extent of the land is really 40 cents. That fact has not been disputed by the Government, and there is no cross-examination on this point. On the other hand, there is clear admission of R.W 1 that the area is only 40 cents.

33. For all these reasons, I hold that the extent of land purchased under Ex. B-1 is only 40 cents. There is no evidence to show that there are quite a number of trees standing thereon, though Ex. B-1 describes it as ‘land with trees’. On the strength of Ex. B-1, the market value of the land per acre in 1947 would be about Rs. 750.

34. The learned District Judge also referred to Ex. A-2, dated 30-9-1955. According to it, the market value in 1955 is Rs. 1,500 per acre, and it shows the upward trend in the price of the lands.

35. Having regard to Ex. B-1, the oral evidence of P. Ws. 1 to 3 that the value of the land is Rs. 3,000 per acre, is discarded. But according to Ex. B-1, the market value of the land in 1947 was Rs. 750 per acre. In the land acquired there are three wells. Having regard to the upward trend of the prices, and also the fact that the land acquired is six miles from the growing City of Visakhapatnam, and one mile from the road to Bheemlipatam, it can safely be assumed that the market value of the land will not be less than Rs. 1,000 per acre. The learned District Judge for all these reasons fixed the market value of the land at Rs. 1,000 per acre.

36. I have been taken through the entire evidence, and I do not see any reason to differ from that conclusion.

37. It is well established that in cases of land acquisition and compensation, which arise the question of the adequacy of the amount that has been awarded by a Court or Tribunal which has got to assess the exact amount, it is a well settled principle that an appellate Court ought to bear in mind that except on the basis of a fundamental or radical error of principle, it would have on ground of justification for interference. (Vide T. Veera Venkamma v. Collector of West Godavari), 1950-1 Mad LJ 725 : (AIR 1950 Mad 650). No fundamental or radical error or principle has been alleged, much less established in this case.

38. I, therefore, affirm the finding of the District Judge that the market value of the land acquired is Rs. 1,000 per acre.

39. The next contention on behalf of the Government Pleader is that compensation for trees ought not to have been granted in addition to the compensation for the land.

40. Section 23 of the Act is clear that in determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market-value of the land at the date of the publication of the notification under S. 4(1), and secondly. The damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof: etc.

41. There is, therefore, little doubt that the claimants are entitled to claim additional compensation in respect of trees. But the argument of the learned Government Pleader is that in the petition filed by them requesting the Revenue Divisional Officer to make a reference, the claimants did not claim any compensation in respect of trees separately. What is stated in Exs. B-9(b) to B-9(f) is that the compensation granted to them was accepted under protest, that the amount of compensation awarded is not adequate, and that the matter may be referred to Civil Court for adjudication.

42. It may be remembered that in the claim made orally to the Land Acquisition Officer as well as in Ex. B-5, to the Collector, the claimants claimed compensation at the rate of Rs. 2,000 per acre. Pursuant to the reference, they filed a claim statement in O.P 86/1958 stating, that the Land Acquisition Officer was not justified in not valuing the trees separately, and adding compensation thereof, and that there are seven palmyrah trees in S. No. 491-B, and 100 palmyrah trees in S. No. 82, and that all of them are worth Rs. 10 per tree, and that there is a soap-nut tree yielding an income of Rs. 30 per year, worth Rs. 500.

43. It may be noted that the Land Acquisition Officer in his Award stated that as the sale, Ex. B-1, has been taken as basis, and it included the trees standing on the land, he did not assess any separate grant for trees. That lie was not right in that view, is needless to state. But the more important thing is that when lie valued the land at Rs. 300 per acre, he purported to include value of trees also. Perhaps, in that view of the matter, the claimants also said that they should be paid at the rate of Rs. 2,000 per acre.

44. A reading of Ex. B-5 cannot be said to rule out the claimants' claim to compensation for trees. On the other hand, they made a pointed reference to the existence of wells and trees in their lands. I, therefore, hold that the argument on behalf of the Government that when the claimants asked for a reference under Section 18 of the Act, they did not ask for a reference in respect of the value of trees also, and, therefore, the Court had no jurisdiction to award compensation in respect of trees, is not sustainable.

45. Further, this argument is advanced only before me now. It was not argued before the learned District Judge nor raised even in the Memorandum of Appeal in this Court. Moreover, even adding the compensation in respect of the trees to the market value of the land, the aggregate sum does not exceed the amount claimed by them, viz., Rs. 2,000 per acre.

46. It is well settled that so long as the amount claimed by the claimant is not exceeded, compensation can be awarded under a different head, though not claimed, because the words, ‘amount claimed’, in S. 25 mean the total amount claimed before the Collector and not any claim under any particular item or head comprised in the total amount: (Vide Gangadhara Sastry v. Deputy Collector of Madras, (1912) 22 Mad LJ 379, Secretary of State v. F.E Dinshaw, AIR 1933 Sind 21, S. Nageswara Rao v. Special Deputy Collector, Land Acquisition, Bapatla, 1958-2 Andh WR 116 : (AIR 1959 Andh Pra 52), and K. Subrahmanyamma… v. District Welfare Officer, Eluru…., Eluru, 1965-2 Andh WR 29 : (AIR 1966 Andh Pra 15).

47. It cannot be said that the compensation awarded by the learned District Judge for the trees is in any way excessive. P.Ws I to 3 deposed that the cost of each palmyrah tree after it is cut is Rs. 10. But the learned Judge found that was somewhat exaggerated, and Rs. 5 per tree is quite reasonable.

48. It is not disputed that there are 105 palmyrah trees on the lands referred to, and at the rate of Rs. 5 per tree, the compensation of Rs. 525 in respect of the palmyrah trees, is quite reasonable. The Trial Judge fixed Rs. 25 for the soapnut tree, which also cannot be said to be too much.

49. I cannot, therefore, accept this contention of the learned Government Pleader as well.

50. For all these reasons, the amount of compensation awarded by the learned District Judge is just, and needs no interference.

51. In the result, the appeal fails, and is dismissed with costs.

CJ/K.S.B

52. Appeal dismissed.