K.C. Agarwal, J.
1. This appeal is directed against the judgment of the Additional District Judge, Meerut, dt. 6th May, 1971, dismissing Land Acquisition Reference No. 70 of 1970, filed by the appellants under Section 18 of the Land Acquisition Act (hereinafter referred to as 'the Act').
2. It appears that the State of U.P. proposed to acquire 17 Bighas 9 Biswas of land in Meerut Town for the construction of buildings for the Meerut University. For this purpose, a notification was issued in 1965 or 1966. This notification was challenged by means of a writ petition in the High Court, which was allowed and the acquisition proceedings were quashed. Subsequently, the State of U. P. issued another notification under Section 4(1) of the Act on Nov. 13, 1967. This was followed by a notification under Section 6 of the Act. As the proceedings were considered to be of an emergent nature, the State applied Section 17A of the Act to the acquisition and dispensed with Section 5A. Upon the notification under Section 6 being made on 29-11-1967, possession of the land was obtained on 4-3-1968.
3. In the meantime, notices were distributed amongst the owners and claimants of lands under Sub-section (3) of Section 9 of the Act. On all the three appellants, notices under Section 9(3) were served. They did not prefer any claim under Section 9 of the Act. However, other claimants than the aforesaid three appellants, whose names have been given in the award of the Special Land Acquisition Officer, preferred their objections. The Special Land Acquisition Officer determined compensation by the order dt. 3-9-1969, at the rate of Rs. 5.22 Paise per square yard. Under this award, given under Section 11, the appellants were found entitled to receive Rs. 61,930.34 Paise @Rs. 5.22 Paise per square yard. The appellants, thereafter, applied under Section 18 of the Act to the Collector for reference being made to the District Judge for determination of the correct value of the land belonging to them. They asserted that the value of the land was not less than Rs. 15/-per square yard.
4. Written Statement was filed on behalf of the State contesting the claim of higher compensation. Amongst others, one of the pleas taken in the written statement was that the reference was barred as the appellants had not filed any claim before the Special Land Acquisition Officer in pursuance of notices under Section 9(3) of the Act.
5. On the pleadings of the parties, the learned Additional District Judge framed the following three Issues :
1. Whether the compensation awarded is fair and adequate? If not so, what is the fair rate of acquisition for the land acquired?
2. Whether the reference is not maintainable as the objectors did not make any claim before the Land Acquisition Officer in pursuance of the notice under Section 25 of the Land Acquisition Act?
6. Under Issue No. 2, the learned Additional District Judge held that since the appellants had not filed objections when the notices under Section 9 of those proceedings were served on them, the reference was barred under Section 25 of the Act. On Issue No. 3, the finding of the learned Additional District Judge was that compensation awarded to the appellants should have been determined at Rs. 6.30 paise per square yard. His view was that from the sale deeds the value of the land could be held to be Rs. 10/- per square yard, but as the land was undeveloped, 40% of the market value was liable to be deducted as development charges. Since Issue No. 2 was decided against the appellants, the reference was dismissed.
7. Aggrieved, the appellants have filed the present appeal in this Court.
8. The first controversy that arises for determination is whether the reference was barred under Section 25(2) of the Act. Madan Lal, who had appeared on behalf of the appellants, admitted in unequivocal terms that the notice under Section 9(3) had been served. From the statement of the Special Land Acquisition Officer made under Section 19 of the Act it is also found that all the three appellants had been served. In fact, there was neither any controversy before the learned Additional District Judge nor before us about the service of notice. Counsel for the appellants admitted that notices, as were required by Section 9, had been served on the appellants.
9. Under Sub-section (1) of Section 9, when public notice is given, it is the duty of the real owners, if they so wish, to come forward and file any objections that can be preferred under Sub-section (2) of Section 9 of the Act. Sub-section (3) of Section 9 provides for special service of notice. 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 a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, Sub-section (1), and into the respective interest of the persons claiming the compensation and shall make an award.
10. Section 26 of the Act deals with the consequences of not preferring a claim pursuant to the notice under Section 9 of the Act. According to Sub-section (1) of Section 25, 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. Section 25(2) of the Act lays down 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. According to Sub-section (3) of Section 25, 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. On an interpretation of Section 25(2) if claim is not preferred under Section 9(2), there will be an absolute bar as to the obtaining of a greater sum than what has been awarded by the Collector. The rigour of Sub-section (2) of Section 25 has been mitigated by Sub-section (3) of Section 25. According to it, if the Court is satisfied that there was sufficient cause for the appellants failure to prefer the claim under Section 9(2), the Court can condone the same and can award a sum greater or in excess of what has been awarded by the Collector under Section 11. The power under Sub-section (3) of Section 25 can be exercised when, on materials brought on record, the Court is satisfied with the bona fides of the applicant and is of the opinion that his conduct does not have any taint of mala fides or element of recklessness or ruse. If neither is present, the Court may exercise the power conferred by Sub-section (3) of Section 25.
12. About the consequence of having not filed a claim under Section 9(2) before the Special Land Acquisition Officer, the Supreme Court in Dilawarsab v. Land Acquisition Officer : AIR1974SC2333 , has said as follows :
'Where the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due, they would not be entitled to any compensation higher than what was awarded by the Land Acquisition Officer.'
13. To the same effect is the view of our High Court taken by a Division Bench in Birbal v. Collector of Moradabad : AIR1927All183 . In this case, the High Court held that public notice was given more than six weeks prior to the date fixed for hearing of applications by the Collector. The applicant of that case was held by the High Court to have been personally served as well. If he did not prefer the claim, Section 25(2) laying down a bar for claim to the higher amount is applicable. For this view, the Bench relied upon other decisions of this Court reported in Secy. of State v. Bishan Dutt, ILR 33 All 376 : (1911 (8) All LJ 115) and Narain Dutt v. Superintendent of Dehra Dun, 12 All LJ 1319 : (AIR 1914 All 445). In fact, authorities of all the Courts on the interpretation of Section 25(2) are in one way and since no useful purpose would be served by multiplying them, especially when we have a direct authority of the Supreme Court and Division Benches of our High Court, no reference is required to be made to those decisions.
14. In the instant case, it may be noticed at the beginning that the appellants did not invoke Sub-section (3) of Section 25 of the Act by pleading that there was sufficient cause for not preferring the claim under Sub-section (2) of Section 9, and that omission to do so be excused or forgiven. Under Sub-section (3) of Section 25, the Court cannot invent a case for the applicants and hold that the reference application could be entertained and decided for higher compensation on merits. It is true that Sub-sec. (2) of Section 25 is a stringent provision, but since compensation has to be determined in accordance with the Land Acquisition Act, which has been held to be valid, there is no escape from the conclusion of absolute bar of Sub-section (2) of Section 25, if claim is not preferred or sufficient reasons for having not filed it have been established.
15. In Collector of Cuttack v. Maya Dhar Sahu : AIR1973Ori173 , it was held that if any notice either public or special has at all been issued under Section 9, Section 25 did not operate because in that case no stage was ever reached where an application could be said to have been made or to have been refused to make a claim or to have omitted to make a claim. To the same effect is the view of the Calcutta High Court taken in State v. Noorjahan Sakil : AIR1985Cal39 . In this case of the Calcutta High Court as well,' no notice under Section 9 had been served. These two cases, therefore, are distinguishable and not applicable to the facts of the case in hand where admittedly, notices, special and general, had been issued before and served.
16. Madan Lal appeared in the Court on behalf of the appellants, and he after having admitted that notices under Section 9 had been served, stated that after its receipt he appeared before the Land Acquisition Officer and requested him to treat the claim filed in the earlier proceedings of acquisition as the one in the instant case. On this basis, counsel for the appellants argued in the court below and also before us that the present was not a case of omission covered by Section 25(2).
17. It appears that on Feb. 21, 1966, the appellants had through their counsel filed an objection in the office of the Special Land Acquisition Officer, Meerut, setting forth a claim for compensation @ Rs. 15/- per square yard. This notification under Section 4, as stated earlier, had been quashed by the High Court and the proceedings had lapsed. It was, thereafter, that the present proceedings were started by a different notification under Section 4 issued in November 1967. Madan Lal stated that he had requested the Special Land Acquisition Officer that the claim preferred in the earlier proceedings be taken as one in the present case. This statement has been disbelieved by the learned Additional District Judge for various reasons. We also are of the same view. Madan Lal could not tell the occasion when he made a request to the Special Land Acquisition Oiiicer to the above effect. Admittedly, he had not filed any application for making the claim petition filed earlier as a claim on their behalf in the present case. In the cross-examination held on 12-4-1971, in the present case, he admitted that he did not remember whether he requested the Special Land Acquisition Officer about his claim to be determined on the basis of the earlier objection preferred a year or four years before. This casts great doubt on the correctness of his statement. From the signatures made by him in English, it appears that Madan Lal is literate, and that he had been actively fighting the case from the very beginning. It appears to be unbelievable that he would not file a fresh claim and would request the Special Land Acquisition Officer for adopting the earlier one in the present case.
18. Furthermore, Madan Lal stated that the earlier objection was directed against the acquisition of land. Even if the making of mention of the provision is ignored and the entire situation is considered, it appears that the appellants had omitted to lay claim for compensation under Section 9(2) despite service of notice and subsequently, when they were faced with such an objection, Madan Lal appeared as P.W. 1 to give a statement which was false to his knowledge. Taking of a liberal view while dealing with the prayer under Section 25(3) is a different matter from a case where no help is sought to be had of that provision and a person comes with a false theory of having already filed a claim. This witness Madan Lal was not relied upon by the Court below by finding his credibility to be doubtful.
19. In the appeal, we do not find any reason to differ from that view. Nothing could be pointed out by the learned counsel as a special feature of this witness which can be said to have escaped the notice of the trial Court. After having considered the oral statement of Madan Lal as a whole, we find that the conclusion arrived at by the court below is fully justified, and that no other view was possible in the matter.
20. Alternatively, we may also refer to the finding on the question of compensation. The court below has held that the exemplars filed by the appellants showed that the value of the land could be determined at Rs. 10/- per square yard. We have gone through the exemplars and are of the opinion that the view taken by the court below is correct. The sale deeds filed by Madan Lal were of the Land which had been sold after plotting and leaving out the land for road. In our view, the learned Additional District Judge was right in deducting the development charges at 40% to make the land in question comparable for the purpose of determining its value on the basis of the exemplars filed by the appellant Madan Lal himself. We are not impressed by the submission of the appellants' learned counsel that the finding of the Additional District Judge fixing the value of the land at 6.30 paise per square yard suffers from any error which would have justified our interference had we found the view of the learned Additional District Judge to be wrong.
21. In the result, the appeal fails and is dismissed. But, in the circumstances, we direct the parties to bear their own costs.