Punjab State v. Messrs Lachhman Dass Mukand Lal

Mahajan, J.:— This is an appeal under section 54 of the Land Acquisition Act, 1894, by the State of Punjab against the decision of the District Judge, Hissar, dated 31st August, 1956, enhancing on reference under section 18 of the Land Acquisition Act the compensation awarded by the Collector to the respondents. The Collector awarded compensation at the rate of Rs. 85/- per biswa. On reference to the District Judge the compensation was raised to Rs. 125/- per biswa. The claim of the respondents is that they are entitled to compensation at the rate of Rs. 400/- per biswa. On the other hand, it is Maintained by the learned Additional Advocate-General that the amount awarded by the Collector is the fair Compensation for the land which has been acquired. The land is situate in the municipal limits of Dhabwalf Mandi in the district of Hissar. It is common ground that it is Page: 684in the close proximity of the Mandi and it is part of Khasra No. 22. Khasra No. 22 embraces a very large area and there have been a number of sales out of this Khasra number, some before the date of acquisition and some after the date of acquisition. The notification under section 4 acquiring the land was published on 21st May, 1955, and according to the State the possession was taken on the 20th December, 1954, whereas according to the respondents the possession was taken in November, 1954. Before the District Judge a claim, was made to compensation for certain kacha structures and trees on the land bot he found that there were no trees on the land and there were no structures as alleged and on that ground he disallowed the claim both to the trees and the structures.

2. In the present appeal, the contention of the Additional Advocate General is that there is no justification for the enhancement of compensation from Rs. 85/- to Rs. 125/- per biswa whereas in cross-objections filed by the respondents claim has been made for compensation for trees and the alleged kacha structures and in addition to this it is maintained that the compensation awarded by the District Judge is inadequate and that they are entitled to compensation at the rate of Rs. 400/- per biswa. Before we enter upon the discussion on the merits of the matter, it will be proper to mention the objection of the Additional Advocate General based on the provisions of sections 9 and 25 of the Land Acquisition Act. The objection is to the effect that as no claim was made by the claimants under section 9 before the Collector they are not entitled to any enhancement over and above the compensation awarded by the Collector. It will be proper at this stage to set out both of the relevant provisions on which the objection is based. They are:—

“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 all interest 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 a 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 authorised to receive service on their behalf, within the revenue district in which the land is situate.

(4) In 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.

“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 Page: 685such 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.”

3. Before dealing with the objection on the basis of section 25 of the Act, it will be proper to set out what actually transpired before the District Judge. It is a fact that no claim was made by the claimants before the Collector. However, in the application dated 9th September, 1955 under section 18 of the Act to the Collector made by the respondents for reference after the award had berm made on 20th June, 1955, the following allegations are made in paragraphs 3, 4, 6 and 7:—

“3. The applicants did not receive any other notice or information from the Government or P.W.D in this connection nor did they receive any notice under section 9 of the said Act to submit their claim:

4. Through your letter No. 6748 dated the 30th August, 1955, received by the applicants on 1st September, 1955, in response to their application an award regarding the compensation of the said land under which Rs. 2,492/10/3 have been given to each of the applicants as compensation;

6. The contents of your above referred letter No. 6746, dated the 30th August, 1955, are not admitted by the petitioners. The petitioners were out of Dabhwali Mandi from 12th June, 1955, to 22nd June, 1955, and they can produce very reliable evidence in support of this fact. Out of this period they were at Hardwar from 18th June, 1955, to 21st June, 1955, in connection with the Suraj Grahan Mela. It is entirely wrong that any notice under section 9 was served on the petitioners or any intimation regarding the award was given to them in Dabhwali Mandi on 20th June, 1955, and they did not appear before you intentionally. In fact the petitioners were at Hardwar on 20th June, 1955;

7. The petitioners have for the first time learnt about the award on 1st September, 1955, from your letter No. 6746, dated the 30th August, 1955, and prior to that they had no knowledge about it. It is, therefore, respectfully submitted that the matter be referred to the Court of the District Judge for the determination of the compensation under section 18 of the Land Acquisition Act of 1894 as the award is not acceptable to the petitioners.”

4. In the written statement filed by the Land Acquisition Collector, it is stated that a notice under section 9 of the Act was issued to the respondents. As they were not available in their village, these were pasted at the spot and public place and outside the Collector's Office as required by law. The publicity was made in the area concerned by beat of drum asking for claims under section 9 However, it became unnecessary to determine the question whether the notice under section 9 had or had not been served on the respondents in view of the statement of the respondents' counsel Shri Manphul Singh dated the 17th April, 1956, which is in these terms:—

“I give up the allegation in the petition regarding the non-service of notice under section 9 of the Land Acquisition Act on the petitioners. I now claim only compensation for the land measuring 2 Bighas and 10 Biswas (kham), the trees and the structures on the land. There were six trees on the land in dispute of the petitioners. As regards the structures, I claim compensation for a kacha room which existed on the Page: 686land in dispute on the date of acquisition. I cannot give the dimensions of the kacha kotha that existed on the land. Now there is no such ketcha kotha. It was removed by the State or its servants on its behalf. Five of the trees have also been removed only one of them still exists.”

The Government Pleader made the following statement on that very date:—

“Only the land of the petitioners measuring 2 Bighas 10 Biswas (kham) has been acquired. There were no trees or structures on the land in dispute on the date of acquisition and none exists even today. None of the trees has been removed or the structures demolished. The compensation offered by the Collector for the land in dispute is adequate.”

Thereafter the District Judge proceeded to determine the claim as to compensation and, as already stated, came to the conclusion that the amount of compensation awarded by the Collector was inadequate and he accordingly enhanced it. The present appeal is by the State.

5. The first question that falls for determination is whether in view of the mandatory provisions of section 25(2) the respondents are at all entitled to the enhancement claimed by them. The resume of facts already stated leaves no manner of doubt that the notice under section 9 must be assumed to have been served particularly in view of the statement of Shri Manphul Singh counsel for the respondents. The fact that the notice was served coupled with the further fact that no claim was filed by the respondents before the Collector, debarred the District Judge from enhancing the claim of the respondents. Faced with this difficulty Mr. D.N Awasthy who appears for the respondents contends that in any case in view of the fact that the State never took up an objection on the basis of section 25 before the District Judge his clients were prevented from showing to the District Judge that there was a sufficient cause which prevented them from making the claim under section 9 and, therefore, they are now entitled to show that cause. Before determining this matter it will be proper to see what is the true legal position particularly when an alternative argument has also been raised by the learned counsel, namely, that the objection of section 25 should be deemed to have been waived by the State and, therefore, the State is not entitled to raise this objection at this stage.

6. Section 25 is mandatory in terms and envisages three contingencies after notice under section 9 has been issued. The first is that where a claim has been made the compensation cannot be enhanced by the Court in excess of what is claimed. The second is that where there is a refusal to make a claim or there is an omission without sufficient cause to do so the compensation cannot exceed the amount awarded by the Collector and the third is that where the omission to make a claim is justified for sufficient cause the compensation may exceed the amount awarded by the Collector but here, as in the case of the first contingency, there is no limitation that it cannot exceed the amount for there is no amount claimed and in the very nature of things none could be claimed. It was held in State v. Krishna Pillai Ramakrishna Pillai I.L.R 1955 T.C 174, that—

“The provisions of the section quoted above are mandatory. It prescribes a penalty for the omission unless it is properly accounted for and on the language of the section it is the party who wants to be exempted from the penal consequences prescribed by it that should move the Court to permit him to make the claim for enhanced compensation. Page: 687The wording of the section would seem to us to admit of no other construction. Decided cases support this view. The Secretary of State for India v. Govind Lal Bysak (1908) 12 Cal. W.N 263, the Secretary of State for India in Council v. Bishan Dat I.L.R (1911) 33 All. 336, Narain Dat v. The Superintendent of Dehradun I.L.R (1915) 37 All. 9, Ram Parsad v. The Collector of Aligarh (1917) 40 I.C 274. In Birbal…(Applicant); v. The Collector Of Moradabad…(Opposite Party).* A.I.R 1927 All. 183, the Allahabad High Court followed the two earlier decisions of that Court mentioned above. Certain other cases go further and hold that the claim in answer to the notice under section 9(2) should be a specific claim, a claim which states in rupees the value of the claimant placed upon his property Orient Bank of India Limited v. Secretary of State I.L.R (1926) 7 Lah. 416 , (1926) 27 P.L.R 656 and Subhanna v. District Labour Officer 1930 Mad. W.K 373.

The earliest Allahabad case cited above explains the rules embodied in the two relevant sections as follows:—

‘In our opinion it was intended by clause (2) of section 9 that 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, proper and reasonable award based upon a proper enquiry after the proper means have been placed before him for holding such enquiry. Section 25, clause (2) makes the refusal or omission to comply with the provisions of section 9, clause (2) without sufficient cause an absolute bar to the applicant in the reference obtaining a greater sum than that awarded by the Collector.’

If we may say so with respect, this construction commends itself to us as conveying the true import of the combined effect of the two sections and is seen accepted in practically all the subsequent decisions bearing on the point.”

Practically all the relevant cases up to 1955 have been noticed. We are in respectful agreement with the statement of law laid down by the learned Chief Justice.

7. I may also at this stage refer to a decision of the Calcutta High, Court, Secretary of State for India in Council v. Govind Lal Bysak (1908) 12 Cal. W.N 263, which has been noticed by the learned Chief Justice in State v. Krishna Pillai's case I.L.R 1955 T.C 174. I only wish to cite a certain passage from this judgment as it is rather pertinent. In Govina Lal Bysak's case (1908) 12 Cal. W.N 263 it was observed as under:—

“In these circumstances, it is clear that the Subordinate Judge was debarred by the terms of section 25, sub-section (2) of the Land Aquisition Act from awarding to the claimants an amount exceeding that which was awarded by the Collector unless the claimants satisfied him that they had sufficient reason for refraining from making their claim in due time. Now, the learned Subordinate Judge has not said a word on this point. He has not alluded to this matter at all. He has not explained why he has allowed the claimants to make a claim before him which they did not make pursuant to the notice under section 9 of the Act: and, therefore, it appears to us that he was not justified in making the award which he had made exceeding that of the Collector. It will be observed that under section 25, sub-section (2) it is necessary, if the Judge allows a claimant, who has not made a claim pursuant to the notice under section 9, to make a claim before him, that he should expressly allow him to do so and we understand that this implies that Page: 688he must expressly allow him and must state his reasons for so allowing to make a claim. That has not been done in this case; and no explanation has been offered to us of the Gobind Lal Bysak's making a claim till the 16th June, 1903, and of Keshap Lal's making no claim at all. We, therefore, do not think that the award made by the Subordinate Judge can be sustained.”

As I understand, the true legal position is, that the State is entitled even at this stage to raise the objection based on the provisions of section 25(2) of the Land Acquisition Act.

8. The next question that requires to be settled is whether the objection on the basis of section 25 of the Act should be deemed to have been waived by the State and, therefore, the State is not entitled to raise this objection at this stage. S. 25 prescribes rules as to amount of compensation. I have already held that this provision is mandatory and there is no option left with the Court but to give effect to it. The provisions of section 25 really limit the jurisdiction of the Court in the matter of enhancement of compensation and thus there can be no question of waiver of these provisions. A Court cannot do what the statute expressly forbids. Neither by consent nor by waiver the mandatory provisions of the statute can be either modified or waived. Therefore, in my view no question of waiver can arise. It is a statutory duty which is cast on the Court and effect must be given to it. It is not a benefit which is conferred on any party. Herman on Estoppel and Res judicata, Vol. II, at page 955, states the rule as to waiver of statutory provisions thus—

“The general rule is that no contract or agreement can modify a law, but the exception is, that where no principle of public policy is violated, parties are at liberty to forego the protection of the law. Statutory provisions designed for the benefit of the individuals, may be waived, but where the enactment is to secure general objections of policy or morals, no consent will render a non-compliance with the statute effectual.”

It will be useful in this connection also to refer to the provisions of section 3 of the Indian Limitation Act. Section 3 is in these terms:—

“3. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.

Explanation. ***”

This provision enjoins that a suit etc., filed beyond limitation shall be dismissed and the judicial opinion seems to be unanimous that parties cannot by consent or agreement override or waive the statute of limitation. In this connection, reference may be made to a large number of cases collected at page 14 of “The Law of Limitation & Adverse Possession” by K.J Rustomji, 6th Edition. I may only cite one of them, namely, Kundo Mal v. Daulat Ram Vidya Prakash A.I.R 1940 Lab. 75 where it was observed, on the basis of Des Raj Hukam Chand v. Lachhi Ram Prabh Dayal A.I.R 1933 Lab. 404, Radha Mohan v. Ami Chand A.I.R 1934 All. 386 Ram Charitter Misir v. Suraj Teli A.I.R 1932 All. 08, Gobardhan Das v. Dua Dayal A.I.R 1932 All. 273, Bollapragada Ramamurthy v. Thammanna Gopayya A.I.R 1917 Mad. 892 and Hukam Singh v. Shahab Din A.I.R 1918 Lah. 374 that—

“Objections regarding limitation cannot be waived and even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves”

The decisions have gone so far that even justice, equity and good conscience cannot override the law of limitation. The provisions of the Limitation Act are in pari materia with those of section 25 of the Land Acquisition Act for both these provisions are based on public policy. They do not confer any benefit on an individual and, therefore, do not fall within the exception to the rule stated by Herman in his treatise on Estoppel and Res Judicata. In my view the considerations which apply in the case of section 3 of the Limitation Act will apply fully so far as section 25 of the Land Acquisition Act is concerned. I am, therefore, firmly of the view that there can be no question of waiver so far as the provisions of section 25 of the Act are concerned. The Court is required to and is bound to give effect to them. The actual decision in Gobind Lal Bysak's case (1908) 12 Cal. W.N 263 supports my conclusion. In that case the provisions of section 25 were not brought to the notice of the Tribunal and the compensation was enhanced. This error was corrected in appeal by the High Court and if the objection of waiver was open or was tenable, it is highly inconceivable that the matter would not have been agitated before the Calcutta High Court.

9. This brings me to the consideration of the question whether the case should be remitted and opportunity should be allowed to the claimants to show cause that they were prevented by sufficient cause from making any claim to the Collector. In my opinion, this opportunity should be allowed particularly for the reason that no objection on the basis of section 25 was raised in the District Court and it is for the first time that it has been raised in this Court. If the objection had been raised the claimants could have shown that they were prevented by sufficient cause from making the claim before the District Court. With these observations we would decide the preliminary objection and hold that in case it is found by the District Judge on remand that there was no sufficient cause which prevented the claimants in making the claim to the Collector pursuant to notice under section 9, the District Judge will only affirm the award of the Collector. In that event the appeal of the State will stand allowed and the cross-objections of the respondents will stand dismissed. If on the other hand, the learned District Judge comes to the conclusion that there was sufficient cause which prevented the claimants from making the claim to the Collector, the District Judge will award the compensation as determined by us in this decision.

10. So far as the adequacy of the compensation is concerned, the most relevant material on the present record is as follows:

(1) Sale deed of land measuring 17/45 Biswas for Rs. 400/- by Kahn Chand and Som Nath to Roshan Lal and Tej Ram. This sale deed was executed on 31st January, 1955, that is four months before the notification under section 4.

(2) an excerpt prepared by the Patwari from the register of mutations relating to 18th January 1954 to 3rd November, 1955, concerning Khasra No. 22. There are two sales at No. 23 and at No. 26. The sale at No. 23 is by Chanda Bhan etc. in favour of Asa Nand for one thousand. The deed of the sale is dated 20th August, 1954, and the second sale is by Nirwair Singh in favour of Jagir Singh of 2 Biswas for Rs. 400/-. The sale deed is dated 21st May 1955.

The sale by Kahn Chand etc. is the one on the basis of which the District Judge has fixed the compensation. He has not fixed the compensation at Rs. 200/- per Biswa for the reason that the plot sold was in a developed locality where central road of 25 feet and lanes about 18 feet were provided. He also held that the sale was practically at the time of the issue of notification under section 4 and therefore it could be presumed that the fact of compulsory acquisition of the land was generally known. In addition to these sales, there is a sale by Buta Singh to Karnail Singh of 1½ Biswas for Rs. 375/-. This sale was effected on 4th October, 1954, and the average price roughly works out to Rs. 250/- per Biswa. So far as the other sales proved on the record are concerned, they have no material bearing because they are of land situate at some distance from the land in question or were made after the notification or long before it. There is no reason to ignore the sales at Nos. 23 and 26 of the excerpt mentioned above and also the sale by Buta Singh to Karnail Singh. There seems to be no justification why reliance should only be placed on the sale by Kahn Chand etc. These sales should be taken into consideration particularly in view of the decision of the Supreme Court in Uttar Pradesh Government v. H.S Gupta A.I.R 1957 S.C 202. If all these sales are taken into consideration along with the poteniality of the land for building purposes, its proximity to the Mandi and also the further fact that an allowance has to be made for roads etc. while developing the land, the proper compensation would work out to Rs. 175/- per Biswa. We are, therefore, of the view that the decision of the District Judge on the quantum of compensation namely Rs. 125/- per Biswa cannot be sustained. We fix the compensation on the evidence on the record at Rs. 176/- per Biswa. The appellants would also be entitled to 15% solatium, on the entire compensation amount fixed at this rate.

11. The cross-objections regarding trees and the kacha buildings were not pressed. So far as the cross-objections regarding the enhancement of compensation are concerned, they will be partly allowed in case sufficient cause for not making the claim under section 9 of the Act is made out as indicated above, otherwise they will stand dismissed.

12. For the reasons given above, this appeal is allowed, the decision of the District Judge is set aside and the case is remanded to him for decision in accordance with the observations made above. The District Judge will leave the parties to bear their own costs throughout including the costs in this Court.

13. Parties are directed to appear before the District Judge on the 3rd of April, 1963.

P.C Pandit, J.:— In the present case, it is not clear on the record that the learned counsel for the State conceded, expressly or impliedly, before the Court below that there was sufficient reason for the respondents in not making the claim to compensation before the Collector pursuant to the notice given under section 9 of the Land Acquisition Act. It appears that this aspect of the matter was not considered and examined by the trial Court. Under these circumstances, it cannot be said that the objection with regard to the sufficiency of reason as contemplated by the provisions of sub-section (2) of section 25 of the Act had been waived by the State. It is, therefore, proper that an opportunity should be given to the respondents to show that they were prevented by sufficient cause from making any claim before the Collector.

14. With these observations, I would agree with the order proposed by my learned brother.

Order accordingly.