Tara Prasad Chaliha v. Secretary Of State For India In Council And Anr.

The Judgment of the Court was as follows:—

B.B Ghose, J.:— This is an appeal by a claimant against an order of the Additional Judge, Assam Valley Districts. A piece of land measuring 4 bighas odd within the Municipal area of Sibsagar was acquired by the Collector under the Land Acquisition Act. A large area was acquired along with the piece of land in question in this appeal. The Collector awarded Rs. 141 as compensation for the lands to the claimant. The Appellant made an application for reference to the Court on the 2nd September 1926, in which he claimed Rs. 2,500 as the market-value of the land at the rate of Rs. 500 per bigha. Thereupon the Collector made a reference under sec. 18 of the Land Acquisition Act, dated the 27th October 1926, in which he stated that the Appellant had not accepted the award made by him. In that letter of reference the Collector further stated that special notice was served upon the objector on the 24th February 1926 and he further mentions the fact that the objector asked for Rs. 500 per bigha being awarded to him. When the matter came up before the learned Judge, the claimant alone was examined. The learned Judge made an order to this effect on the 5th July 1927: “One witness examined. The applicant was duly served with a notice under sec. 9. He did not make a claim for compensation. His Explanation is that he trusted to the good sense of the Collector. This excuse can be put forward in all cases in which claim for compensation is not made. I cannot accept it as a sufficient reason under sec. 25(2). The petition is, therefore, dismissed. No order about costs.” This was apparently made on an application to allow the claimant to make a claim under sec. 25, sub-sec. (2) of the Land Acquisition Act. There was an application for review and judgment was pronounced by the learned Judge on the 30th July 1927, in which the learned Judge found that the notice under sec. 9 of the Act, dated the 3rd February 1926 was served on the claimant's brother and it was a sufficient service under sec. 45(3) of the Act. It was further found, that the notice which was served on the brother of the claimant G.P Chaliha on the 24th February 1926 was a clear 15 days' notice. The learned Judge rejected a further objection made by the claimant that the notice was bad as it was not signed by the Collector himself but by an extra-Assistant Commissioner on his behalf. Another notice was served which was marked as Ex. A on the claimant himself: but the learned Judge found that it was not 15 days' notice. The learned Judge, however, remarked that this notice was superfluous. On these facts the learned Judge observed that there was absolutely no justification on the part of the claimant not to make a claim before the Collector pursuant to the above notices. Before this Court the learned Advocate for the Appellant takes exception to the validity of the notice under sec. 9 of the Land Acquisition Act. He points out that the learned Judge was in error in holding that there was 15 days' clear notice as is required by sec. 9 of the Land Acquisition Act. If any notice had actually been served according to law, Ex. A was undoubtedly superfluous. The question is whether a proper notice was served under sec. 9 of the Land Acquisition Act and, if not, whether the Appellant has any remedy. The notice was dated 23rd February 1926 as signed by the Collector. There is the report of the peon who stuck up the notice to the effect that on the 24th and 25th February 1926 signature was taken of the mouzadar on a copy of the notice, one copy was hung up in front of the outer door of the office of the Sub-Deputy Officer on getting the signature of the clerk of the Sub-Deputy. Another copy was hung up over the sign-board of Gaonbura and so forth. Assuming, as the learned Judge says that the notice was served under sec. 9 on the 24th February 1926, the notice required the persons interested in the land to appear before the Collector on the 11th March 1926 in the office of the Sub-Deputy Officer, Sibsagar, to state the nature of their claims. Between the 24th February and the 11th March there was no clear 15 days' clear notice because the 15th day would be the 11th March 1926 and the notice, therefore, was not valid in law. The question is, if that is the position whether the Appellant is precluded from preferring his claim under sec. 25 of the Land Acquisition Act. Now, it is well settled that where special provisions are made by the legislature for compulsory acquisition of property belonging to a person, the provisions of the law must be strictly complied with. I may refer to what is stated in the well-known book of Cripps on “Compensation,” 6th Edition, at page 26, where the learned author says: “Any person whose property is interfered with under Parliamentary Authority has a right to require that the promoters shall comply with the letter of the enactment so far as it makes provisions in his behalf and no Court can remodel arrangements sanctioned or relax conditions imposed by Act of Parliament.” The case of Herron v. Rathmines and Rathgar Improvement Commissioners (1) is cited in support of the proposition. Again, at page 90 the learned author says: “The consent to permit the promoters to enter on any lands cannot be revoked when once given, so as to place the promoters in the position of trespassers. The effect of such consent is to bring the promoters under the protection of their statutory powers, and the only remedy of the owner is to take the necessary steps to compel the assessment and payment of compensation. If no consent has been given, and the promoters have not complied with the statutory conditions as to entry on lands, they can be proceeded against as trespassers by any owner who has an interest, in the lands. The principle is that all statutory conditions, which have been imposed as conditions precedent to an entry on lands, must be fulfilled.” [See the cases of Parkdale Corporation v. West (2) and North Shore Rail Co. v. Pion (3)]. These cases have been referred to in our Court in the case of Rameswar Singh v. Secretary of State for India (4). That was a case in which the owner sued in the Civil Court for damages for acquisition of land without strictly following the provisions of the Land Acquisition Act. There the learned Judges no doubt observed that irregularities in connection with the service of notice might be waived; but the waiver is as I understand from the passage I have cited from Cripps on “Compensation,” waiver of the right to treat the public authority as a trespasser. It does not prevent the owner from asking for payment of proper compensation. In this case the learned Government Pleader also drew our attention to the case of Ganga Ram Marwari v. Secretary of State for India (5), where Banerjee and Henderson, JJ., observed that the principles laid down in some of the English cases could not apply in this country in its entirety. But these observations were made in reference to a casa in which the Plaintiff asked for recovery of possession of the property which had been acquired under the Land Acquisition Act, although not strictly in accordant with its provisions after service of special notice under sec. 9 of the Act. In the present case, there is no question that the property has vested in the Secretary of State. The only question is whether the claimant has the right to ask the Court to take his evidence as regards the proper compensation to be paid according to the market value. In my judgment, as the provisions of the law have not been strictly complied with, it is not possible to apply the penal provisions of sec. 25 of the Land Acquisition Act in order to prevent him from putting forward his claim before the learned Judge. That the provisions of sec. 25 should not be so strictly applied, was also held by Banerjee and Rampini, JJ. in the case of Nabin ??? Sarma v. The Deputy Commissioner of Sylhet (6) where the learned Judges said that “the Collector in his grounds of reference to the Civil Court stated that the persons interested, amongst whom the Appellant is expressly named, did not agree to accept the amount of compensation offered was sufficient to prevent his case from being affected by the provisions of sec. 25.” It is not necessary to go so far in the present case but, in my opinion, if the provisions of sec. 9 of the Land Acquisition Act have not been strictly followed as regards the service of notice, then it would be absolutely wrong to prevent the claimant from asking for proper compensation on a reference made by the Collector before the learned Judge under the Land Acquisition Act.

In my opinion, therefore, the judgment of the learned Judge must be set aside and the case sent back to him to decide the question of proper compensation to be paid to the claimant on the reference made by the Collector under sec. 18 of the Land Acquisition Act. It appears that the claimant was too trustful a person and that is the reason why he has got into difficulties. The Appellant is entitled to his costs in this appeal, hearing-fee being assessed at three gold mohurs.

R.K Ghose, J.:— I concur

S.C.M