Sharad Manohar, J.
1. The revision application has got a chequered career so far as this Court is concerned. Stated with the barest minimum exposition, the point involved is as to whether the Court exercising jurisdiction under the Land Acquisition Act can allow patent injustice to be perpetuated on account of technical flaws and further whether they should not expect strict compliance with the acquiring authorities.
2. The fact of the case are as follows :
Puranik family is an illustrious family in this part of Maharashtra, having extensive lands near village Panvel. There was a dispute regarding the partition of the joint family properties and Suit No. 399/70 has been pending in that behalf in this Court even till this day. Admittedly Receiver was appointed in respect of the property and the receiver was in possession of the lands till 30-3-1970, but before that on 3-2-1970 notification under section 4 of the Land Acquisition Act has been issued by the Government for acquisition of the said lands for the purpose of the New Bombay Project. Notification under section 6 of the said Act was thereafter issued on 28-12-72.
The present petitioner has filed an affidavit in this Court to which I will presently allude. Facts stated in the said affidavit have not been controverted by the Government, even though abundant time was given to Government to point out any mistake in the said affidavit. Hence so far as the present petition is concerned, I have to proceed upon the footing that the facts stated in the said affidavit are correct. As per the statement made in the said affidavit, on 13-3-1973 the Receiver voluntarily surrendered possession of the lands in question to the Special Land Acquisition Officer. The fact that the possession of the lands was already taken by the Land Acquisition Officer has been stated by the Land Acquisition Officer even in his award to which I will presently make reference. Since the land acquisition proceedings were going on, it appears that on 21-6-1973 the Court Receiver held a meeting of parties and C.D. Vaidya & Co., Architects, were appointed as valuers for the purpose of valuation of the lands. The Court Receiver thereafter requested Mr. V.D. Vaidya of C.D. Vaidya & Co. to visit the lands at Panvel for the purpose of valuation; but it appears that the said Architect could not visit the lands on account of heart attack. The Court receiver thereafter received notice from the Land Acquisition Officer purporting to be under section 9(3) of the Act on 7-5-1973. Thereafter we find from the affidavit referred to above that there ensued correspondence between the Attorneys to the Court Receiver and the Court Receiver as to what Mr. Vaidya the Architect was doing. Ultimately on 28-7-1973 the Attorneys to be Court Receiver wrote a letter to the Spl. Land Acquisition Officer stating that the lands in question were being valued by the Architect and that the correct claim would be made by the Receiver after the valuation was made by the Architect. It appears that there was some correspondence between the Attorneys for the Receiver and the Architect but owing to the serious ill-health of Mr. Vaidya, the Architect, it was not possible for him to complete the work of valuation and to submit the report of the valuation which could be placed before the Land Acquisition Officer. The Land Acquisition Officer had received a letter dated 21-8-1973 by which letter the Attorneys to the Court Receiver had specifically mentioned that they were taking opinion of the Architect for the purpose of valuation of the lands with a view to make the claim. In that letter it was further stated that the intimation in that behalf would be given to the Land Acquisition Officer; but neither any intimation was given by the Receiver to the Land Acquisition Officer late on nor did the Land Acquisition Officer himself asked for any such particulars from the Receiver. The Land Acquisition Officer used his own methods of valuation and give his award dated 19-3-1975 fixing the total compensation in respect of all the lands at Rs. 12,29,708.50 p.
It appears that the Receiver was blissfully unaware of what was going on before the Land Acquisition Officer. The notice regarding the award was given by the Land Acquisition Officer to the receiver on 25-3-1975. The Court Receiver thereafter hastened to file an application for reference in the Court of the learned Civil Judge, S.D., Alibag on 7-5-1975 against the said award.
In his application for reference it was stated that a much larger amount could be recovered by way of compensation from the Government but that the claim to additional compensation was restricted to Rs. 13,47,655.45 only by him. Even thereafter efforts continued on the part of the Court Receiver to have the land valued. The Architect was changed and Mr. Wagle was appointed as the Architect for making valuation of the lands. Mr. Wagle submitted his report in that behalf. The said report was filed in the Court in which the reference was pending. The proceedings relating to the reference went on. Mr. Wagle was examined as a witness in connection with the valuation of the lands. On behalf of the Government also evidence was led relating to valuation.
3. The task before the learned Judge who heard the reference was :
(a) to examine the evidence relating to the valuation of the lands and to decide as to what amount the claimant was entitled to as compensation in connection with the compulsory acquisition;
(b) to see whether in the context of the facts of the case the Receiver was entitled to press his claim for enhancement of the compensation.
The learned Judge purported to frame various issues relating to both the above mentioned points. So far as the first question was concerned he examined the evidence in that behalf with reference to the various relevant issues and he indicated that the claimant was entitled to have substantially enhanced additional compensation from the Government. This is what the learned Judge observes in his judgment in that behalf;
'Had they preferred some claim generally in courts claimants as are likely to get some enhanced compensation and in this particular reference the amount of compensation probably would have been enhanced by lacs because the area of the acquired lands is very large.'
But the learned Judge ultimately came to the conclusion that all the issues relating to the valuation of the land were of no relevance because the reference itself was not competent as the Receiver had not made any claim before the Land Acquisition Officer within the reasonable period as required by section 9(3) of the Land Acquisition Act. Issue No. 5 framed by him in this behalf may be quoted verbatim, which is as follows :
'5. What is the effect of non-compliance of notices under section 9(3), (4) of the Land Acquisition Act, by the Court Receiver and Shri G.V. Puranik?'
The learned Judge held that there was no compliance with the provisions of section 9(3) and 9(4) of the Act. According to him, therefore, the provisions of section 25(2) of the Act inexorably came into play and that hence he had no jurisdiction to decree any enhanced claim. In this view of the matter, the learned Judge passed an order dated 19th December, 1978 dismissing the reference with costs.
4. Against the above order dismissing the reference, initially an appeal from order was filed by the Receiver to this Court which was numbered as A.O. No. 175 of 1979. When the same came up for final hearing before me it was argued by the learned Government Pleader that the appeal from order was not competent. Contention was that it was incumbent upon the appellant to file an appeal to this Court against the order passed by the learned Judge dated 19th December, 1978. Reliance in this connection was sought to be placed on section 54 of the Act and it was contended that the order passed by the learned Judge rejecting the reference was in fact an award and since it was an award an appeal was competent to this Court against the said award as if the same was a decree. Contention was that it was incumbent upon the appellants to pay the requisite Court-fee on the entire Claim which extended to Rs. 13 lacks and odd as mentioned above and that then alone the appeal could be proceeded with. I examined the said question and found that the contention was not well placed. I was of the opinion that the order passed by the learned Judge dated 19th December, 1978 rejecting the reference did not and could not partake of the character of award within the meaning of the Land Acquisition Act and within the meaning of section 54 of the same. I will refer to this aspect of the matter while considering the various points urged by the Government Pleader in reply to the arguments advanced before me by Mr. Phadkar, the learned Advocate for the petitioner. I may state here that for the reasons which will be presently stated I hold that no appeal was competent against the said order dated 19-12-1978 rejecting the reference. I, therefore, allowed the application made by Mr. Phadkar for leave to convert the said appeal from order into a revision application. The petitioner thereafter converted the said appeal into a revision application and the requisite petition containing statement relating to the relevant facts was filed as a revision application. The said revision application is numbered as Civil Revision Application No. 193 of 1981 as mentioned above. It is in this revision application that a detailed chronological statement of relevant facts has been made by the petitioner. Even apart from the statement contained in the said revision application an independent affidavit has been filed by the petitioner giving a chronological statement of the relevant facts. After the said revision application was filed accompanied by the said affidavit, the Government Pleader asked for time for verification of the factual statements and to give reply to the same and at his instance the petition was adjourned from time to time for enabling him to do the needful as mentioned above. I must, however, state that no reply affidavit has been filed on behalf of the Government even till this date. The revision application came up for hearing before me yesterday when learned Government Pleader was constrained to make a statement before the Court that it was not possible for the Government to file any affidavit to counter the factual averments made in the revision application about the chronological statements made in the affidavit . This is the context in which I have mentioned at the outset in this judgment that I am required to proceed within the revision application on the assumption that all the averments made in the revision application as well as in the affidavit mentioned above are true and correct.
5. In this revision application contention of Mr. Phadkar is that the issue framed by the learned Judge, viz. Issue No. 5 quoted above, relating to the maintainability of the reference is wrong or rather inadequate, and further that the learned Judge has failed to frame the issue which inevitably arose in the instant case. Issue No. 5 is already set out above. The issue postulates that there has been non compliance with the notice under section 9(3), (4) of the Act by the Court Receiver as well as by Mr. G.V. Puranik. Mr. Phadkar rightly pointed out that so as far as Mr. G.V. Puranik was concerned the reference was not made at his instance at all. The question, therefore, would not arise as to what is the effect of non-compliance of the notice by Mr. G.V. Puranik. Assuming that notice received by the Receiver was under section 9(3), (4) there could be no dispute that the Receiver had given particulars relating to the claim before the Land Acquisition Officer at any time before the award. The notice in question is not before me. I am, however, informed that the notice mentioned the period of 15 days from the date of the notice for preferring the claim. But it can hardly be disputed that in appropriate circumstances the Special Land Acquisition Officer could even enlarge the time and allow the claimant to put forth his claim at any time before giving of the award. He is no doubt entitled to make the award as best as he can, if no claim is preferred before him, but that fact by itself does not preclude the claimant from getting a reference made to the Court for getting a higher valuation and higher compensation than what is awarded by the Land Acquisition Officer. Section 25(2) of the Act provides that in a case where the claimant has refused to make any claim for higher compensation before the Land Acquisition Officer and has refused to furnish the requisite particulars in that behalf the Court cannot enhance the compensation. However, if the Court finds that the claimant has not refused to make the claim before the Land Acquisition Officer but has only omitted to make the claim then the Court has to see further as to whether there was any sufficient reason for the claimant for having omitted to make the claim. In such latter case of omission, it is the implicit duty and obligation of the Court to address itself to the question as to whether the omission was without any sufficient reason or with any sufficient reason. Mr. Phadkar was right in contending that his question cannot be decided by the Court hearing the reference under the Act unless an appropriate issue in that behalf was framed by the Court and parties were allowed to lead evidence in that behalf before the Court.
6. Mr. Phadkar was also right in contending that Issue No. 5 is very much inadequate in that behalf. Even Issue No. 5 postulates that there was a non-compliance but the effect of the non-compliance will depend upon the question whether the non-compliance is on account of refusal or mere omission on the part of the claimant. If there is a refusal no further question will arise and the reference shall be rejected. But if there is a mere omission, the Court will have to apply its mind whether the omission resulted from any sufficient reason. Issue No. 5 as worded by the learned Judge is, therefore, palpably inadequate and the finding recorded thereon would be a patently irregular exercise of the Court's jurisdiction. Unless the Court has framed an issue on the question as to whether the claimant had sufficient reason not to make the claim within the requisite time or not, no finding could be recorded as to the effect of the non-compliance with the notice under section 9(3), (4) of the Act.
7. In this connection it is to be noted that under section 25(2) of the Act a duty is cast upon the Court to address itself to the question as to whether the failure or omission on the part of the claimant to make the claim before the Land Acquisition Officer within that requisite time could be accounted for by any sufficient reason or not. The words finding place in sub-section (2) of section 25 are a clear pointer to the legal position that in the case where there has been an omission on the part of the claimant to make the claim, it is the Court which has to apply its mind to the question whether there was sufficient compliance or not. In a sense, therefore, it could be said that the issue relating to the sufficiency of reason for the claimant as contemplated by the said sub-section (2) of section 25 is a statutory or atleast a mandatory issue. If such an issue is not framed no evidence could be adduced by the claimant to satisfy the Court that he had sufficient reason not to make the claim before the Land Acquisition Officer and in the absence of any such evidence, the Court could hardly be able to give any finding on the said question.
8. I am, therefore, of the view that Issue No. 5 framed by the learned Judge suffers from an error of inadequacy or in the alternative it could be said that it was necessary for the learned Judge to frame an additional issue on the question whether the claimant was prevented by sufficient reason making the requisite claim before the Land Acquisition Officer within the requisite time. It may be pointed out here that the learned Judge was not only framed no issue in this behalf by the learned Judge has not even addressed him to the question as to whether there was sufficient reason or not. In this connection, it is to be noted further that the jurisdiction of the Court under section 25(2) of the Act is not exactly identical with the Court's jurisdiction under section 5 of the Limitation Act in the case under section 5, the Court which is dealing with the appeal or application filed before itself after the expiry of the period of limitation has to consider as to whether the said application or appeal before itself is barred by limitation or not and as to whether the delay in that behalf should be condoned or not. In fact the condonation application is required to be made before the same Court by the applicant or the appellant in that behalf. The position regarding delay contemplated by section 25(2) of the Act on the other hand is that the claim is to be made within the requisite time before the Land Acquisition Officer and the delay if any, in that behalf is to be explained not before the Land Acquisition Officer but before the Court. Moreover no application by the claimant condemnation of delay as such is contemplated. All this means that the issue relating to the sufficiency of reason for not making any claim before the Land Acquisition Officer is a mandatory issue to which the Court has got to address itself and no separate application invoking the Court's power to condone the delay is contemplated. If the Court does not address itself to the question about the sufficiency of reasons for the claimant not to prefer the claim within the requisite time, it would mean that the Court has run away from its own obligation. It may be that in given circumstances the Court even after framing the issue, might find that no material is brought by the claimant on the record to show that there was sufficient` reason for him not to prefer the claim before the Land Acquisition Officer within the requisite time. Even if after framing of the issue the claimant chooses not to place any requisite material before the Court in that behalf the Court will certainly be entitled to arrive at its own conclusion that no sufficient reason was found why the claimant should have omitted to make the claim before the Land Acquisition Officer. But this is a matter of appreciation of evidence after the issue is framed. No question of appreciation of evidence would arise if the evidence was not led because no issue was framed. To my mind, therefore, the judgment of the learned Judge suffers from grave irregularity in the exercise of his jurisdiction on account of it failure to frame the necessary issue which inevitably arose in the case before him.
9. Shri Kotwal, the learned Government Pleader, however, contended that in the instant case in fact there was no sufficient reason for the receiver not to prefer any claim before the Land Acquisition Officer. In the first instance he contended that no Court-fee was payable before the Land Acquisition Officer and hence there was no necessity for getting a valuation report from any Architect. He pointed out further that as a matter of fact when a reference was made before the Court the quantum claimed was in fact mentioned; but even at that time there was no report of the Architect in possession of the Receiver. He, therefore, contended that the excuse given by the receiver for not preferring the claim, viz. that the valuation report was not available, is a lame excuse. Shri Kotwal contended that this was a case of sheer negligence on the part of the receiver who was himself the claimant and his negligence could be no sufficient cause for condonation of the delay.
10. To my mind this contention cannot be raised by the Government Pleader in this Court. The question as to whether the negligence of the receiver is a sufficient reason for allowing the reference before the Court to proceed or not will depend upon a variety of facts. The Receiver is after all a trustee for the real owners of the property. If he is negligent, in given circumstances another Receiver may be appointed and if such second Receiver makes an application to the Court for condonation of delay and for enhancement of the amount, in conceivable cases the Court can come to the conclusion that the omission was on account of sufficient reason. I may here give an illustration of property of a minor which is being acquired under the Act. Notice may be given by the Land Acquisition Officer under section 9 of the Act to the guardian of the minor. The guardian may be recklessly remiss in preferring the claim before the Land Acquisition Officer with the result that the award is given by the Land Acquisition Officer ex parte. It may be that subsequently for some reason another guardian is appointed and the other guardian makes an application for reference to the Court. In such circumstances it is quite conceivable that the fact that the delay was caused on account of recklessness and negligence of the guardian would itself be a sufficient ground for not precluding the claimant from asking an enhanced compensation. To my mind, the case of a Receiver who makes a claim before the Court for enhancement of the compensation contending that his predecessor was remiss in making the claim before the Land Acquisition Officer may not stand on very much of a different footing from the case of a reckless guardian. Whether the negligence of the Receiver was sufficient reason for the Court to take a lenient view and to allow the subsequent Receiver to claim the enhanced compensation or not are questions dependent upon a number of facts and on the circumstances peculiar to each case. The Court shall have to address itself to this question and to all those circumstances. While taking all the circumstances into account the Court shall be hard pressed to bear in mind that a valuable piece of property is being acquired by the Government compulsorily. In a case, such as the present one when the Court comes to a definite conclusion that heavy loss is being caused to the real claimant only on account of the negligence on the part of a Court Receiver, the Court may be justified in taking the view that this is a fit case where subsequent Receiver should be allowed to proceed with the claim in the reference which is the subject-matter of the reference notwithstanding the omission of the predecessor of the present Receiver in making the claim before the Land Acquisition Officer.
11. I may make it clear that this entire question has not to be considered by the Court in the context of all the attendant circumstances brought to the notice of the Court and the decision has to be its own decision. I may only point out that the conclusion that was implicitly arrived at by the learned Judge is not the only possible conclusion. What the correct conclusion should be well dependent upon the evidence and the material made available to the Court on the question of sufficiency of reasons.
12. There is yet another aspect of the matter which also needs to be considered by the Court. In the instant case there was no question of any notice under section 9(1) of the Act at all. The said notice pre-supposes that the Collector intends to take possession of the land and that the claims to compensation for all interest in such land shall be made before him. Under sub-section (2) the particulars in respect of the claim have to be given when such notice is issued. The period of limitation also starts from the issuance of such notice. The position in the instant case is that the possession of the land was already recovered by the Government long before even the date of notice under section 9(3) of the Act. Admittedly the possession of the land was recovered by the Land Acquisition Officer as early as on 13-3-1973; whereas the relevant notice under section 9(3) of the Act was given to the Receiver as late as on 6-9-1973 and the award itself was passed by the Land Acquisition Officer on 19-3-1975. An argument is capable of being advanced that the provisions of sub-section (3) and (4) of section 9 of the Act did not come into play in the instant case and if these provisions did not come into play, then provisions of section 25(2) of the Act which are analogous to the provisions of the Limitation Act would not be attracted. In that sense it would be perhaps possible to contend that in fact there has been non-compliance with the notice under section 9(3), (4) of the Act because no such notice was ever given or rather required to be given. Mr. Kotwal in this connection contended that even when the Government was already in possession of the land before the date of the notice under section 9, still a notice had got to be given by the Land Acquisition Officer calling upon the claimant to put forth his claim. Mr. Kotwal may be right to that extent. It can be readily accepted that if the Government intended to acquire the land under its power of eminent domain it shall have to pay compensation to the concerned owner and some procedure for the purpose of fixing of compensation shall have to be followed and a notice to the claimant to put forth his claim for compensation would be the first step towards compliance with the procedure. But the point is that the argument cannot be ruled out that notice under section 9(3) and (4) of the Act is not a notice envisaging such a situation. It may be that the basis requirement of the natural justice would require the Land Acquisition Officer to call upon the claimant to put forth his claim. But it will not necessarily follow that such a notice would be governed by the provisions of section 9(3) and (4) of the Act. This particularly so because when citizens property is being compulsorily acquired the acquisition has got to be proceeded with by strict compliance with every statutory provisions enabling the acquisition. The power of the Court to entertain the claim is an essential part of the process of acquisition. There is no reason why the power should be said to be circumscribed more than the way which has been hedged and circumscribed by the provisions of the statute. If two constructions relating to section 25(2) of the Act are possible, one keeping the power of the Court enlarging the period of limitation for preferment of the claim and the other foreclosing the claimant from making any claim for enhancement of compensation, the construction which facilitates the retention of the Court's power should be preferred. I may add that this entire question has got to be considered by the Court itself. To my mind, the Court has not applied its mind to any of these aspects of this matter. The Court has no doubt brought the blame to the door step of the Receiver and to my mind quite rightly and justifiably so. But to my mind, it was necessary for the Court to consider as to whether the negligence on the part of the predecessor of the present Receiver would itself not be in given circumstances a circumstance entitling the Court to enlarge the time and to allow the claimant to prove the correct valuation in respect of the property before the Court.
13. Mr. Kotwal further contended that as a matter of fact even notice was served by the Land Acquisition Officer on Shri. G.V. Puranik, the karta of the joint family to which the land belonged. He contended that even he had not made claim before the Land Acquisition Officer. He, therefore, contended that assuming that the Receiver was persistently remiss in his duty, even the beneficiary had been remiss in his duty. He, therefore, contended that this is not a case of any sufficient reason for not making any claim at all. To my mind the answer to this question is two fold. In the first place it was not disputed before me that though at some time in the past Shri G.V. Puranik was the karta of the joint family, at the relevant time of the acquisition he was no longer the karta and in fact the joint family itself no longer existed. In fact the suit for partition of the joint family property was already pending and evidently the severance of the joint family a status was complete. It is also not disputed that after the severance of the joint family status, the other co-partners of the erstwhile joint family had become claimants for the compensation in their own right and they ceased to be represented by Shri G.V. Puranik, the erstwhile karta of the joint family. It is further not disputed that notice under section 9(3) of the Land Acquisition Act was not given by the Land Acquisition Officer to any of the said other claimants. Notices were given only to Shri G.V. Puranik and to the Receiver. Those other claimants were represented only by the Receiver, not by Shri G.V. Puranik. The plea that Shri G.V. Puranik was also remiss was no answer to the plea of negligence of the Receiver so far as his duty towards the other claimants was concerned. In the second place, the position is that the applicant for reference before the Court is not Shri G.V. Puranik at all. The reference is being made at the instance of the Receiver only and while considering whether the present Receiver was entitled to invoke the jurisdiction of the Court to enlarge the time because the present Receiver's predecessor was remiss and negligent in not preferring the claim within the requisite time, the fact that another claimant could have made the claim but failed to make the claim is of no relevance. I may state without any hesitation that if Shri G.V. Puranik had himself made an application to the Court for reference, he would have to account for his own omission by showing as to why he did not prefer the claim within the requisite time. But when the Receiver makes the application for reference he is not required to account for the fact that any claimant could have made a claim and did not make it. To my mind the fact that Shri G.V. Puranik in the instant case did not put-forth any claim before the Land Acquisition Officer is of no relevance and hence of no legal consequence. In the present case to my mind the learned Judge was wrong in holding that the present claimant was not entitled to have the compensation enhanced because Shri G.V. Puranik had failed to prefer the claim.
14. For all these reasons I am of the opinion that the order passed by the learned Judge rejecting the reference suffers from grave jurisdictional irregularity.
15. The rule is made absolute. The order passed by the learned Judge is set aside and the entire matter is remanded to the learned Judge for examination of the question de novo. While doing so, the learned Judge shall frame a suitable issue on the question as to whether omission on the part of the then Receiver of the lands in question to prefer the claim before the Land Acquisition Officer could be accounted for by any sufficient reason or not. While considering the issue the learned Judge shall address himself to the question as to whether the negligence of the erstwhile receiver could not in the given circumstances be considered to be sufficient reason for the present Receiver to prefer the claim before the Court only or not. The learned Judge will frame an appropriate issue in that behalf and shall give opportunity to the parties to lead evidence on the same, and shall decide the issue in accordance with law thereafter.
16. In the circumstances of the case there shall be no order as to costs.