1. This appeal is at the instance of the referring claimant, Kumar Abhaychand Mahatab and it arises out of a reference case under Section 18 of the Land Acquisition Act, 1894.
2. Certain lands appertaining to the palace of the Maharaja of Burdwan were acquired by the Government for the purpose of the Burdwan University. The possession of the acquired lands and structures standing thereon was taken amicably even before the publication of the notification under Section 4. The Land Acquisition Collector made an award of Rs. 2,48,111.33 as compensation for the acquired lands. The appellant made a reference under Section 18 of the Land Acquisition Act claiming compensation at the rate of Rs. 2,50,000 per acre for the bastu land measuring 1.535 acres. He also claimed compensation of Rs. 4,00,000 for the house, Rs. 20,000 on account of the tank measuring .46 acre with 8 pucca cemented ghats, and Rs. 10,000 on account of the compound walls. Other claims were also made by him. The total claim that was made by him was to the tune of Rs. 9,42,900 including 15 per cent statutory compensation,
3. During the pendency of the reference case, a valuer was appointed at the instance of the appellant. The valuer submitted a report stating inter alia that the total amount of compensation that was payable to the appellant would be Rs. 4,73,108. Before the hearing of the reference case an application was filed by the State Government on March 19, 1965 in which it was inter alia stated that no claim petition was filed by the appellant before the Collector pursuant to the notice under Section 9 of the Land Acquisition Act and, as such, in view of Section 25(2) of the Land Acquisition Act, the award that might be made by the court should not exceed the amount awarded by the Collector. The said application was directed by the learned District Judge, Burdwan, to be heard along with the reference case on May 6, 1965. On that date an affidavit was filed by one S. K. Raja, who was the constituted attorney and manager of the appellant. In that affidavit, it was stated that according to the arrangement prevalent at that time, the said Mr. Raja put in the box in the Land Acquisition Office a claim petition dated January 25, 1961 regarding the acquired lands. Further it was stated that as the record rooms in the 'Kachari' of the appellant were all in the acquired house and, as at the time of removal of the papers, they were in a disarranged condition, it was not possible to file a copy of the claim petition. In reply to the said affidavit, two affidavits were filed-- one by Banchharam Chowdhury, a clerk in the Burdwan Col-lectorate and the other by one Sambhu Nath Bhattacharya, a Bench clerk of the Special Land Acquisition Officer, Burdwan. In the affidavit of Banchharam Chowdhury it has been stated that a box under lock and key with only just enough opening at its top for inserting into it petitions, used to be kept in the verandah in front of the seat of the Special Land Acquisition Officer, Burdwan and the key of the box used to be kept with him in his safe custody. He used to open the box soon after 12 noon and take out all the petitions filed in the box on the day and to lock the box again and, thereafter, used to take all those petitions and enter them in the petition register forthwith and present the same before the Land Acquisition Officer for his orders in respect thereof. The petition register was used to be kept on the tables and on shelves in the office and not in the custody of any office staff. It was averred that there was no occasion when any petition filed in the petition box by anybody was not taken out by him from the box and not entered in the petition register and not made over to the Bench Clerk concerned. In the affidavit sworn by Sambhu Nath Bhattacharya, the Bench clerk of the Special Land Acquisition Officer, Burdwan, it has been stated inter alia that the alleged claim petition was not in the records of the Land Acquisition Case No. 25/ 60-61, nor was it entered in the petition register.
4. At the hearing, two witnesses were examined on behalf of the State Government. The O. P. W. 1, the Special Land Acquisition Collector, who dealt with the matter, proved the order-sheets of the land acquisition case concerned. The other witness S. K. Mitra, the Special Land Acquisition Collector, Burdwan (O. P. W. 3), stated that there was a register of petitions in which petitions that were filed were noted. The petition register for 1961 of the department was not traceable. He made an enquiry as per the order of the Additional District Magistrate and submitted a report (Ext. N). In his cross-examination, he said that excepting the relevant petition register, the other registers could be traced.
5. It was contended on behalf of the appellant before the learned District Judge that the notice under Section 9 of the Act was not served on the appellant. Further, it was contended that the claim petition was filed, as averred in the affidavit of the said S. K. Raja, who was unfortunately not alive at the date of hearing of the reference case. The learned District Judge came to the finding that the notice under Section 9 having been served on the said S. K. Raja, the Manager and constituted attorney of the appellant, it was a good service. He held that the petition under Section 9 was not filed by the appellant. He took the view that if the claim petition had been filed, it would have been mentioned in the reference petition under Section 18. But no such statement was made in the reference petition, although it was alleged therein that the notice under Section 9 was not served on the appellant. Upon the said findings, the learned District Judge was of the opinion that in view of the provision of Section 25(2) of the Land Acquisition Act, the compensation, as awarded by the Collector, could not be enhanced. Accordingly, he dismissed the reference case. Hence this appeal.
6. At the outset, Mr. Noni Coomar Chakraborty, learned Advocate appearing on behalf of the appellant, has conceded before us that as the notice under Section 9 was served on the Manager and constituted attorney of the appellant, that was good service and he cannot assail the finding of the learned District Judge in that regard. He, however, submits that the learned District Judge should have held that the claim petition under Section 9 was duly filed by the appellant through the said S. K. Raja, since deceased. It is contended by him that the respondent has withheld the best evidence, namely, the petition register in which, as has been admitted by the O. P. Ws. 1 and 3, the filing of such petitions used to be entered, and, accordingly, an adverse presumption should be drawn against the respondent. It appears that the appellant had taken an inconsistent defence, namely, non-service of the notice under Section 9 and the filing of the claim petition. The onus to prove the non-filing of a claim petition undoubtedly rests on the respondent. The petition register would have been the best evidence to prove whether any such Claim petition was filed or not, but the said petition register was not traceable. There is nothing to disbelieve the evidence of the O. P. W. 3 that the said petition register could not be traced out. An enquiry was held by him, but it could not be ascertained at what point of time the petition register was lost and the person who was responsible for such disappearance of the register. It may be that the appellant had taken an inconsistent stand. But simply because of that it will not be right to hold that the claim petition was not filed.
7. Even assuming that the claim petition was not filed, the question is whether in the facts and circumstances of the case the provision of Section 25(2) is attracted. Section 25(2) is a penal section and before the court debars a referring claimant from claiming compensation in excess of the amount awarded by the Collector it must require strict proof of the fact that the applicant has refused to make a claim to compensation or has omitted without sufficient reason to make such claim. A claim to compensation has to be made pursuant to the service of the notice under Sub-section (2) of Section 9 which provides that the 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. Further it provides that the Collector may in any case require such statement to be made in writing and signed by the party or his agent. Section 9(2) therefore, does not require that the claim to compensation has to be made in writing before the Collector. The claim may be made, in our opinion, even orally by the person interested by appearing before the Collector. This is clear from the provision of Sub-section (2) itself as it provides that the Collector may in any case require such statement to be made in writing and signed by the party or his agent. It is, therefore, incumbent upon the respondent to prove to the satisfaction of the court that no oral claim was made by the appellant before the Collector either himself or through his authorised agent. In our opinion, it is not sufficient to prove only that no claim petition was filed by the appellant for the purpose of precluding him from claiming compensation in excess of the amount awarded by the Collector. The view which we take finds support from the decision of the Patna High Court in State of Bihar v. Anant Singh, AIR 1964 Pat 83. In that case, it has been observed that it is not enough to prove that statements of claim in writing had not been filed before the Collector. What is to be proved under Section 25(1) is that the applicants had not made claims to compensation and not that the applicants had not filed statements in writing before the Collector. There is no obligation on the interested person to file statements in writing unless they are required to do so, as contemplated by Section 9(2). Further it has been held in that case that the mere fact that they may not have made any statement in writing is not sufficient to uphold the contention based on Section 25 of the Act, unless there is evidence to show that the applicants had not made any oral claim before the Collector and there is sufficient evidence to prove that valid notices had been served upon them under Section 9 of the Act. The said decision was followed in State of Bihar v. Jehal Mahto, AIR 1964 Pat 207. The same view has been expressed by the Mysore High Court in Special Land Acquisition Officer, City Improvement Trust Board, Bangalore v. Chikkaboranna, AIR 1968 Mys 319.
8. Now we are to see whether the appellant had made an oral claim. It appears from the order-sheet of the Collector (Ext. A/1) that on January 25, 1961, he made an entry that no claim petition was filed. On that date he fixed February 1, 1961 as the date of enquiry under Section 11 and directed the issue of notice to the person interested. The only person interested was the appellant. Such an enquiry was held on February 1, 1961 and it appears from the award-note of the Special Land Acquisition Officer, Burdwan (Ext. Q) that the manager of the appellant was present at the time of the enquiry. It is, therefore, apparent that the appellant through his manager appeared before the Collector at the time of enquiry under Section 11. Such appearance was not without any purpose. Obviously the enquiry was made for the purpose of determining the value of the acquired lands. From this fact it will not be unreasonable to presume that the manager of the appellant had on earlier occasion appeared before the Collector and preferred a claim to compensation on behalf of the appellant. It is also apparent that the appellant had been diligently taking steps in the matter of determination of compensation by the Collector. The award of the Collector was made on February 25, 1961 and on March 1, 1961 the appellant had withdrawn the amount awarded under protest. The appellant also filed an application before the Collector that he would make an application for reference under Section 18 and thereafter he did file an application for reference. The evidence which we have from the records indicates that the appellant had made an oral claim to compensation before the Collector. In any event, the onus was on the respondent to prove that no such oral claim was made by the appellant to the Collector. As has been stated already, without strict proof that no such claim was made by the owner of the land, he cannot be held to be hit by the penal provision of Section 25(2). It appears that both the parties as also the learned District Judge proceeded on the basis that the appellant was to make his claim in writing pursuant to the service of the notice under Section 9. Accordingly, neither any argument was advanced on behalf of the appellant as to whether the respondent had been able to prove that any oral claim was made by the appellant before the Collector, nor did the learned District Judge consider the same before coming to the finding that the appellant was precluded from claiming compensation in excess of the amount awarded by the Collector.
9. In the circumstances mentioned above, we are of the view that the evidence adduced by the respondent does not justify the order of the learned District Judge precluding the appellant from proceeding with the reference case claiming a higher amount of compensation. The order of the learned District Judge is, accordingly, set aside and he is directed to dispose of the reference case on merits in accordance with law.
10. This appeal is allowed. But in the facts and circumstances of the case, there will be no order for costs. The learned District Judge is directed to dispose of the reference case on merits as expedi-tiously as possible.
11. I agree.